National School Slate Co.

National Labor Relations Board - Board Decisions

Jun 27, 1962

137 N.L.R.B. 925 (N.L.R.B. 1962)

NATIONAL SCHOOL SLATE COMPANY 925
except to the extent that this right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as authorized by Section
8 (a), (3) of the National Labor Relations Act.
A & D TRucicn. o Co., Inc.,
Employer.
Dated------------------- By-------------------------------------------(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced , or covered by any other material.
National School Slate Company and Upholsterers' International
Union of North America, AFL-CIO. Case No. 4-CA-2439.
June 27, 1962
DECISION AND ORDER
On December 19,1961, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the following additions.
As the Trial Examiner found, the Union was certified as the bargain-
ing representative of the Respondent's employees in an appropriate
unit. Thereafter, during negotiations, and before an impasse was
reached, the Respondent granted individual wage increases to some of
its employees. The gravamen of the complaint is that these unilateral
wage changes before an impasse was reached violated Section 8(a) (5)
and (1) of the Act.
We agree with the Trial Examiner that the Respondent violated
the Act. However, we do so for the following reasons. Like the Trial
Examiner, we think that, once the Union was certified, the Respondent
was not free to bypass the Union on wage matters, but had an obliga-
tion under the Act to meet and confer with the Union concerning each
and every subject relating to wages, hours, and other terms and con-
ditions of employment. This is not a situation where an employer,
who has bargained to an impasse on wages, thereafter puts into effect
the same wage offer which the Union had rejected. Rather, it is one
where, without discussing the particular wage increase involved with
137 NLRB No. 109.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union-and at the same time it refused to offer any wage increase
to the Union- the Respondent independently put its own unilaterally
determined merit increases into effect. Such conduct is clearly in der-
ogation of the Respondent's obligation under the Act to bargain with
the certified representative of its employees regarding any matter af-
fecting wage rates. By taking unilateral action, the Respondent nar-
rowed and impaired the employees' opportunity to share in the de-
termination of the terms and conditions of their employment, thereby
interfering with their right to bargain collectively under the Act.
Accordingly, we find that the Respondent's action in granting uni-
lateral merit increases during negotiations was in violation of Section
8 (a) (1) and (5) of the Act.'
ORDER
The Board adopts the Recommended Order of the Trial Examiner.'
MEMBER RODGERS took no part in the consideration of the above
Decision and Order.
1 In view of our conclusion that the Respondent did not fulfill its statutory duty to meet
and confer with respect to merit increases, as found herein, we do not believe it necessary
or relevant to pass on the Respondent's good faith as to other matters on which it did
confer and bargain The Supreme Court, in its recent opinion in N L R B. v Benne Katz,
etc., d/b/a Williamsburg Steel Products Co, 50 LRRM 2177, May 21, 1962, stated that
(1) nonautomatic merit increases, as here, are "a subject of mandatory bargaining,"
(2) "an employer's unilateral change in conditions of employment under negotiation
is . . . a circumvention of the duty to negotiate which frustrates the objectives of
§ 8(a) (5) much as does a flat refusal," (3) such unilateral action by the employer "con-
clusively manifested bad ifaith in the negotiations," and (4) "the Board may hold such
unilateral action to be an unfair labor practice in violation of § 8(a) (5) without also
finding the employer guilty of overall subjective bad faith."
2 The notice attached to the Intermediate Report is hereby amended by adding the fol-
lowing: "Employees may communicate directly with the Board's Regional Office, 1700
Bankers Security Building, Walnut and Juniper Streets, Philadelphia 7, Pennsylvania,
Telephone Number, Pennypacker 5-2612, if they have any questions concerning the notice
or compliance with its provisions."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act, as
amended , 29 U.S.C. Sec. 151 , et seq., herein called the Act.
Upholsterers' International Union of North America, AFL-CIO, on September 9,
1961, filed a charge against National School Slate Company, Slatington , Pennsylvania,
and on September 19, 1961 , filed an amended charge against the same Employer,
asserting that the Employer has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a)( 1 ) and ( 5) of the Act. Subsequently , on Octo-
ber 20, 1961, the General Counsel of the National Labor Relations Board, on behalf
of the Board, by the Regional Director for the Fourth Region , issued a complaint
against the Union , together with notice of hearing , the complaint alleging that the
Employer had engaged in and is engaging in unfair labor practices affecting com-
merce in contravention of Section 8(a)(1) and ( 5) of the Act. The Respondent
Company, the Employer, filed timely answer to the complaint , effectively denying
the alleged violations of the Act as set forth in the complaint , and also setting up
certain affirmative defenses , discussed below.
On the issues framed by the complaint and the answer, this case was heard before
Trial Examiner Arthur E. Reyman at Allentown , Pennsylvania , on November 20,
1961 . At the hearing, each party was represented by counsel , was afforded full
NATIONAL SCHOOL SLATE COMPANY 927
opportunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence pertinent to the issues, and each was afforded opportunity to argue orally
upon the record, to file proposed findings of fact and conclusions or both, and to
file briefs. Briefs have been submitted on behalf of each of the parties.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF NATIONAL SCHOOL SLATE COMPANY,
SLATINGTON, PENNSYLVANIA
The Respondent, National School Slate Company, Slatington, Pennsylvania, is,
and has been at all times material herein, -a corporation duly organized under, and
existing by virtue of, the laws of the Commonwealth of Pennsylvania and maintains its
principal plant and office in Slatington, Pennsylvania. At all times material herein,
the Respondent has been engaged in the manufacture of slate products and other
products including, inter alia, blackboards and garden furniture. During the year
immediately preceding the filing of the complaint herein, the Respondent in the course
and conduct of its operations, manufactured, sold, and shipped goods and products
valued in excess of $50,000 directly to customers located outside the State of
Pennsylvania.
The Respondent is, and has been at all times material herein, engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Upholsterers ' International Union of North 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 UNFAIR LABOR PRACTICES
The Union initiated an organizing campaign about the beginning of the year 1961
resulting in its certification on February 17 as representative of employees in a
bargaining unit described as:
All production and maintenance employees of the Respondent employed at its
Slatington plant, exclusive of casual part-time employees, office clerical em-
ployees, and all supervisors as defined in Section 2(11) of the Act.
Almost immediately after the certification of the Union, it requested the Company
to meet with its representatives for the purpose of negotiating a contract. A number
of meetings were held, the first one taking place on March 6. Subsequent meetings
occurred on March 20 and 29, April 5 and 21, May 10, June 13, 20, and 28,
August 15, and September 5. Each meeting ran from approximately 2 to 21/2 hours.
After the meeting of September 5, the members of the Union decided that no progress
was being made through negotiations and therefore they went out on strike on
September 7.
John A. Coffey, business representative for the Pennsylvania Joint Board (a group
of local unions under the general jurisdiction of the Upholsterers' International
Union), and a committee of three members of the Union employed by the Respond-
ent represented the Union during these negotiations. C. Tracy Taylor, attorney for
the Respondent, represented the Company. After the second meeting a mediator,
Samuel Sackman, of the Pennsylvania State Mediation Board, participated in at least
four meetings between the parties. At the first meeting, Coffey and his committee
presented a proposed agreement covering wages, hours, vacations, holidays, and other
proposed terms and conditions of employment. After the submission of this contract
proposal, Taylor took the position at the first meeting that he would need time to
study the proposal and also suggested that anything in the way of increases in wages
could not be made by the Company because of its financial condition. At the second
meeting, the Union was presented with a contract proposal in writing which differed
in considerable detail on the various conditions and provisions in the union contract
proposal.
The wage issue was predominant throughout the whole course of negotiations.
Therefore, it seems expedient at this point to set out the original union wage proposals
as submitted at the first meeting between the parties:
ARTICLE XII.-WAGES AND WAGE SCALE
a. THE EMPLOYER agrees that a minimum hiring rate of one dollar and
ten cents ($1.10) per hour shall prevail during the life of this Agreement.
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Effective as of and retroactive to February 9, 1961, the EMPLOYER here-
by grants a substantial wage increase to all employees.
c. The following classification rates and progressive increases shall be adhered
to as minimum requirements for the duration of this agreement:
Hiring Rate and Progressive Wage Increase Procedure
Classifications Hiring Rate Service in Months
1 3 6 9 12 15 18 21 24
d. Any contemplated classification not listed above or in the contract and the
rate of pay thereof, or any dispute involving progressive increases, shall be
subject to ,the grievance and arbitration provisions contained herein.
The proposal of the Company covering wages, submitted at the March 20 meeting,
also should be noted:
ARTICLE VI.-WAGES
The Company and the Union agree that present wage rates will continue until
the effective date of any amendment of minimum wages provided by the Fair
Labor Standards Act. Fifteen (15) days prior to the effective date of such
amendment, the Company and the Union agree to discuss wage rates, and in the
event that no agreement is reached in the provisions of Article VII hereof shall
be suspended until such time as agreement is reached. The provisions of Article
IX shall not be applicable to this issue.
(Article VII contained a no-strike-no-lockout clause and article IX set forth a
grievance procedure and provisions for arbitration.) I
The wage proposal of each party was rejected by the other side.
As indicated by its proposal set forth above, in regard to wages (article XII), the
Union desired to negotiate classifications of employment in regard to job evaluation
or skills in order to try to work out an equitable job classification scheme. Taylor
for the Company suggested to the Union that they submit a proposed classification
schedule, to which the Union replied that the Company had superior knowledge as
to the actual work performed and that the Company should suggest job classifications.
Apparently this was a difficult task to perform, since employees receiving different
rates of pay frequently were engaged in the same type of work, and that there really
were only very few differentiations to be made between jobs. According to the
testimony of Coffey, the response of the Company with regard to proposals on
classifications was that first no matter what the Union would accept, the Company
would not be able to meet increased costs in the way of increased wages, and second,
the jobs of people were such that they interchanged and it would be very difficult to
draw a job classification schedule because the Company was not prepared nor did it
have anyone employed by it qualified to go into a complete job evaluation program.
The company representative consistently maintained that the Company itself was
in no financial position to grant any type of wage increase. He offered the Union
the opportunity to inspect and even to audit the company records showing profit and
loss and volume of business. The Union did not accept the full offer although it did
examine the profit-and-loss statements submitted by the Company, such statements
having been prepared by a certified public accountant. At the meeting of Septem-
ber 5, the Union requested a 15-cent-an-hour general increase in order to maintain
the same differential in effect before the minimum wage standard of the amended
Fair Labor Standards Act became effective. The Company submitted a counter-
proposal, listing by name some 71 individual employees including 26 for whom no
wage increase was contemplated, 1 to get a 3-cent-an-hour increase, 18 to receive
5-cents-an-hour increase, 8 to receive 10 cents an hour, and the remaining 17 to
receive a 15-cent-an-hour increase. This would have raised some 41 of these employ-
ees to the required minimum of $1.15 an hour. Other 5- and 10-cent an hour
increases were suggested: (eleven 5-cent increases to meet the minimum of $1.15 and
seven 10 -cent an hour increases to meet the minimum of $1.15).
Before the advent of the Union, the Company customarily had from time to time
made what may loosely be described as merit increases to certain individuals. Con-
'Prior to September 3, 1901, the Fair Labor Standards Act required the payment of a
minimum wage of not less than $1 per hour. Section 6(1) of that act was amended by
subsection ( a) (1) of section 5 of Public Law 87-30, approved May 5, 1961, effective
September 3, 1961 This amendment provided for the payment of a minimum wage of not
less than $1.15 an hour during the first 2 years from the effective date of the Fair Labor
Standards Act Amendments of 1961 , and not less than $1.25 an hour thereafter.
NATIONAL SCHOOL SLATE COMPANY 929
sequently, the Union inherited a situation where men who were doing substantially
the same work were working for different rates of pay.
Certain individual increases in pay called merit increases or premium pay were
unilaterally made by the Company without consulting the Union in the months of
March to August. Coffey had protested to Taylor in a telephone conversation prior
to the meeting of September 15 concerning the granting of these individual increases
and Taylor at that time told him that he was unaware that such increases had been
made. At the meeting on September 15 Taylor did supply the information requested
by the Union concerning individual increases which had been granted by the Com-
pany without the knowledge of the Union.
After the beginning of the strike and at a meeting at the office of the State mediator
on or about October 9, the Company presented the following proposal.
NATIONAL SCHOOL SLATE COMPANY
In settlement of the wage issue for a period of one (1) year, National School
Slate Company, Inc., offers to take the average cents-per-hour cost of all increases
in excess of 1.15 submitted 9/5/61 (the average derived on the basis of 71
employees appearing on that list) and submit the disposition of such wage adjust-
ments to impartial determination on a job rate or individual wage-adjustment
basis.
In other words, the Union having criticized the basis upon which the individual
adjustments were proposed 9/5/61, it is proposed to have the same wage costs
(relative to the size of the pay roll as of the date of determination) distributed
by impartial determination, with complete freedom to the Union to suggest such
distribution as it desires upon such basis as it desires, and complete freedom to
the arbitrator to apply whatever basis of wage adjustment seems appropriate to
him in the circumstances.
Based on an assumed full-time employment of all employees on 9/5/61,
the average adjustment above $1.15 is $0.01. The average adjustment which
may be ordered hereunder is not to exceed this level.
It is proposed that this determination be made as of thirty (30) days follow-
ing the end of the current strike in order to assure the existence of a normal
complement of employees.2
In regard to the Company's proposal made on September 5, it appears that Coffey
and Taylor had agreed that the Company would not put individual increases into
effect unless they both were agreed that they had reached an impasse in negotiations
on the question of wages. At the hearing, Taylor, as counsel for the Company, felt
it incumbent upon him to testify, since he was the only person representing his client
in the union negotiations. He made the following brief statement:
During the course of Mr. Coffey's testimony, he indicated that when he first
learned of the individual increases that had been made by the Company, he
called me, protested, requested a meeting. If my recollection is correct, he indi-
cated that in the telephone conversation he gained the impression from what I
had said that I was unaware of the increases.
In the answer which I filed in this proceeding, I indicated that the increases
had been made by the Respondent upon advice of counsel. This was my
answer, and the counsel to which I referred was myself. I do not specifically
remember the telephone conversation to which Mr. Coffey alludes. I have no
doubt that what lie states in his impression from the conversation.
The fact is that I did talk to my client prior to the first increases made,
although the date I cannot give you. I did give him advice based upon his advice
to me as to what they had done in the past but in my opinion he could give
increases.
I am confident myself that what was said in the telephone conversation was
consistent with what was indicated at the meeting concerning which Mr. Coffey
testified, that is, that I did not have the details, I had never reviewed the matter
in any detail with my client before I gave the advice, I had not reviewed in
detail with him what his past actions of this character had been, that is, in
terms of individuals, how many individuals, what adjustments, and so forth,
2 A financial statement exhibited by counsel for the Respondent to Coffey, who was on
the witness stand at the time, indicates that as of December 1900 the Company had shown
a net profit of 0 02 percent after taxes for the preceding year A financial statement,
also prepared by a certified public accountant for the year 1959 showed an operating loss
but a net profit after taxes of 0.49 percent for that year.
649856-63-vol. 137-60
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nor did I review with him prior to the time that he took this action in any detail
specifically what he proposed to do. The discussion was general, and he did
take the action he took on advice of counsel.
I don't doubt for one moment Mr. Coffey's recollection. That is all I wish
to state.
The Respondent granted individual wage increases to employees within the bar-
gaining unit as follows: 1 increase on March 1, 1 on April 4, 1 on April 27, 15 on
June 26, 2 on July 10, 7 on July 24 and 2 during the month of August. These were
unilateral increases, put into effect without consultation with or agreement by the
Union.
At the hearing, the Respondent offered in evidence written data taken from the
payroll records of the Company showing the names of individuals and dates on which
they received merit increases for the years 1958, 1959, 1960, and 1961. Also shown
are the names of employees who did not receive merit increases. This data was
received over objection by counsel for the General Counsel, who contends that the
increases constitute violations per se of Section 8(a)(1) and (5), and that such data
is immaterial and irrelevant. I consider it relevant for background only.
The Respondent maintains that the increases granted to individual employees
between March up to and during the month of August 1961 were merit increases
and justifiably could have been made and were made without consultation or agree-
ment of the Union because, by established customs and usage in years before the
Union was certified as bargaining representative, the Respondent had adopted the
practice of making such individual "merit" increases. The position of the Respondent
in this respect is set forth in its answer to the complaint wherein the Respondent:
. . . admits [such increases] and avers that such increases were consistent with
a policy or practice in force and effect prior to the certification of the Union .. .
Respondent further avers that such increases were individual in nature, did not
raise the general wage level of the Respondent above the level of a like period
in the preceding year, and did not involve any unilateral change in the wage
policy of the Respondent. Respondent further avers that such individual ad-
justments were made upon advice of counsel that such continuance of wage
policy did not constitute an unfair labor practice.
In his brief filed on behalf of the Respondent, counsel says:
Was the unilateral granting of individual increases , in a manner consistent with
established policy and causing no increase in the wage structure of the Respond-
ent, in and of itself, a violation? We had understood that, even on a per se
view, the vice enjoined is a unilateral change, without notice, by the employer
regarding matters which are the subjects of mandatory bargaining. General
Counsel has made no effort to prove any change in policy or conduct of the
Respondent whatsoever. The evidence prepared and submitted by Respondent
clearly demonstrates that no change of wage policy or practice occurred. In
fact, had the increases not been granted, that would have constituted a change
of policy or practice.
This argument overlooks the fact that the policy referred was established before
the Union was certified.
Of course, the Respondent was entitled to follow such practice prior to the cer-
tification of the Union as bargaining representative for its employees. After the
certification of the Union, however, the Respondent had no right to ignore or bypass
the Union in the granting of individual or any other wage increases without the con-
sent of the Union, and in making the increases as it did, it violated the provisions of
Section 7 and Section 8(a) (1) of the Act. Further, such action constituted a con-
structive refusal to bargain on the issue of wages, and consequently the Respondent
violated Section 8(a)(5) of the Act. I so find.3 The Press Company, Incorporated,
121 NLRB 976, 977-978, 980, and cases cited therein; Proctor Manufacturing Cor-
poration, 131 NLRB 1166. Cf. N.L.R.B. v. American National Insurance Company,
343 U.S. 395, 402; N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F. 2d
131 (C.A. 1), cert. denied 346 U.S. 887. Good-faith intent normally "can only
be inferred from circumstantial evidence." Reed & Prince, supra, at 139-140. "The
B Other increases granted under the requirements of section 6(a) (1) of the Fair Labor
Standards Act of 1938, as amended, and as further amended by the amendments effective
September 3, 1961, made prior to September 3, of course, constituted violations of the
National Labor Relations Act, as amended, while those increases made by the Respondent
to meet the i equired minimum as of September 3 were mandatory upon the Respondent
and there I make no finding as to whether those increases constituted violations of the
National Labor Relations Act, as amended
NATIONAL SCHOOL SLATE COMPANY 931
problem is essentially to determine from the record the intention or the state of mind
of Respondents in the matter of their negotiation with the union." N.L.R.B. v.
National Shoes, Inc., et al., 208 F. 2d 688, 691 (C.A. 2). See also N.L.R.B. v.
Stanislaus Implement and Hardware Company, Limited,,226 F. 2d 377, 381 (C.A. 9).
As another basis for defense herein, Respondent asserts that at no time has the
Union proposed classifications, hiring rates, or rate progressions of the character
contemplated in its written proposal,4 and says that at no time during the entire period
referred to in the complaint did the Union propose any other specific wage system in
substitution for the individual rating system in effect in Respondent's Slatington
plant. This defense implies a requirement that the Union submit a scheme to eval-
uate classified jobs. However, testimony given by Business Agent Coffey under cross-
examination by Attorney Taylor reflects the fact that it was the Union's desire and
suggestion that the parties sit down and work out together such a schedule. Coffey
testified under cross-examination:
Q. (By Mr. TAYLOR.) Now you testified that in response to suggestions of
the Union that an effort be made to evaluate and classify jobs and that I indi-
cated that I did not think there was anyone connected with management of this
Company that was qualified to do so. Would it be true, Mr. Coffey, that I also
indicated that I thought if the suggestions in this area were to be placed on the
bargaining table they would have to come through the Union, which had been
more familiar with that type of thing than this type of employer?
A. You suggested that we submit some specific thing, yes, and I had stated
that in view of the fact that the Company had taken the position that the work
was so general, people doing various jobs, that the only practical way would
be to sit down with representatives of the Company and work it out.
Q. There was no more specific proposal from the Union than was there in
writing?
A. That's right.
Q. And what you have now testified was a suggestion or proposal on your
part that a mutual effort on some other basis be made to formulate a proposal?
A. That's right.
I do not believe that the Respondent is entitled to shuck its responsibility to con-
sider what it would agree to in the way of job classifications. The original written
proposal of the Union contained in its proposed article 12 contemplates some effort
to name classifications in the first instance. The hiring rate column certainly could
be filled in were the classifications nomenclature agreed to. The Union suggested
nine steps for automatic wage increases within each classification. The Company
made no countersuggestion in any of these respects; it seems to me, therefore, that
this defense must fall. In the absence of any effort on the part of the Company to
suggest an alternative, I cannot find that the parties reached an impasse in this phase
of negotiations
The Company consistently maintained during the course of negotiations in its
inability to increase wages in a total amount substantially over its then current pay-
roll obligations. As noted above, it offered to make available to the Union all its
payroll records and the Union did examine certain financial statements prepared by
an independent certified public accountant employed by the Company showing a very
narrow margin of profit for the years 1959 and 1960. I find that the position of the
Respondent in this respect was maintained in good faith. In my mind there is no
question but that on the current basis of operations during the time of negotiations
between the Respondent and the Union, the Company financially could not then
meet the union demands for a 15-cent an hour across-the-board increase without con-
siderable loss and at a sacrifice of any profit at all. Because I shall recommend an
order herein finding that Respondent has violated Section 8(a)(1) and (5) of the
Act principally because of the granting of unilateral wage increases, I do not think
it necessary to decide the question of whether the Respondent's defense of inability
to increase wages is assailable. Were I called upon to make a finding I should de-
cide that this defense must fail, and that the Company's position is not sound, simply
because it did grant substantial wage increases at times when it was negotiating with
the Union on the very issue. Continental Bus System, Inc., 128 NLRB 384, enfd.
sub nom. Division 1142, Amalgamated Association of Street, Electric Railway and
Motor Coach Employees of America, AFL-CIO (Continental Bus System, Inc.) v.
N.L.R.B., 294 F. 2d 264 (C.A.D.C.).
By reason of the facts set forth above, it is found that the Respondent, by uni-
laterally granting wage increases to certain of its employees during times when the
4 Article 12, set forth above at pages 927 and 928.
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union was the collective-bargaining representative of its employees, violated Section
8(a) (1) and (5) of the Act; and by granting such wage increases at times when the
Respondent represented to the Union that it was unable to grant wage increases
because of its poor financial condition, the Respondent impliedly did refuse and con-
tinues to refuse to bargain collectively with the Union as the exclusive bargaining
representative of all the employees in the appropriate bargaining unit on the question
of wages.
I agree with counsel for the General Counsel that, on the basis of the totality of
evidence, Respondent deliberately avoided its obligation as defined in Section 8(d)
to bargain with the Union in good faith and thus violated Section 8(a)(5) and (1)
of the Act, and that the proof meets the tests of bad faith prescribed by the Board
and courts. N.L.R.B. v. Insurance Agents' International Union, AFL-CIO (Pru-
dential Ins. Co.), 361 U.S. 477; N.L.R.B. v. Cascade Employers Association, Inc
296 F. 2d 42 (C.A. 9).
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Company as set forth in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action found to be necessary to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. National School Slate Company, Slatington, Pennsylvania, is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. Upholsterers' International Union of North America, AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of the Act.
3. By granting unilaterally wage increases to certain of its employees at times
when said employees were represented by the said Union, the Respondent interfered
with, restrained, and coerced its employees in the exercise of their rights guaranteed
in Section 7 of the Act, and thereby did engage in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act. In the granting uni-
laterally of wage increases to certain of its employees at the time or during the time
the Union represented said employees as their collective-bargaining representative,
the Respondent did refuse to bargain collectively and is refusing to bargain collec-
tively with the representative of its employees, and did engage in and is engaging in
unfair labor practices within the meaning of Section 8(a)(5) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case, it is recommended that the Respondent,
National School Slate Company, Slatington, Pennsylvania, its officers, agents, suc-
cessors, and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively or refusing to recognize Upholsterers' Inter-
national Union of North America, AFL-CIO, as the representative of its employees
in the unit described below. The bargaining unit is:
All production and maintenance employees employed at the Respondent's Slating-
ton plant exclusive of casual part-time employees, office clerical employees, and all
supervisors as defined in Section 2(11) of the National Labor Relations Act, as
amended.
(b) Granting wage increases to any employee or employees without the agree-
ment or consent of the said Upholsterers' International Union of North America,
AFL-CIO, or in any other way making changes in the terms and conditions of
employment of its employees without negotiating such changes with the said Union.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
MORRISON MOTOR FREIGHT, INC. 933
(a) Bargain collectively with the above-named labor organization concerning
rates of pay, wages, hours of employment, or other conditions of employment,
and, if an understanding is reached, embody said understanding in a signed agreement.
(b) Post at its place of business, copies of the notice attached hereto marked
"Appendix." 5 Copies of said notice, to be furnished by the Regional Director for
the Fourth Region, shall, after being duly signed by an official representative of the
Respondent, be posted by it immediately 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 altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for the Fourth Region, in writing, within 10
days from the date of this Recommended Order, what steps have been taken to
comply herewith.6
I In the event that this Recommended Order be adopted by the Board, the words "A De-
cision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice In the 'further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order "
0In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT refuse to recognize Upholsterers' International Union of North
America, AFL-CIO, as the representative of our employees in the unit described
below. The bargaining unit is:
All production and maintenance employees employed at our Slatington,
Pennsylvania, plant, exclusive of casual part-time employees and all super-
visors as defined in Section 2(11) of the Act.
WE WILL, upon request, bargain collectively with the above-named labor
organization concerning rates of pay, wages, hours of employment, or other
conditions of employment, and, if an understanding is reached, we will embody
said understanding in a signed agreement.
WE WILL NOT refuse to bargain with said labor organization as the repre-
sentative of our employees in said unit or interfere with, restrain, or coerce
employees in the exercise of the rights guaranteed by Section 7 of the Act,
except to the extent permitted under Section 8(a)(3) of the Act.
NATIONAL SCHOOL SLATE COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material
Morrison Motor Freight , Inc. and William C. Paul
Morrison Motor Freight , Inc. and Robert C. Gray. Cases Nos.
25-CA-1413-1 and 25-CA-1413-2. June 27, 1962
DECISION AND ORDER
On March 28, 1962, Trial Examiner Sidney D. Goldberg issued
his Intermediate Report in the above-entitled proceeding, finding that
137 NLRB No. 108.