Portage Realty Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1970

184 N.L.R.B. 28 (N.L.R.B. 1970)

28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Portage Realty Corporation and Local 413 , United
Brotherhood of Carpenters and Joiners of Amer-
ica, AFL-CIO. Case 25-CA-3425
June 30, 1970
DECISION AND ORDER
By MEMBERS MCCULLOCH, BROWN, AND JENKINS
On March 9, 1970, Trial Examiner Abraham H.
Mailer issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion . Thereafter, the Respondent filed exceptions to
the Decision and a supporting brief, the General
Counsel filed limited exceptions to the Decision
and a supporting brief, and the Charging Party filed
an answering brief in support of the Decision ex-
cept to the extent set forth in the General Counsel's
limited exceptions
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 this case to a three-
member panel
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions' of the Trial Examiner with the following ad-
ditions and modifications.
1. The Trial Examiner found, and we agree, that
the Respondent violated Section 8(a)(5) and (1) of
the Act by failing and refusing to bargain in good
faith with the employee representative, by bargain-
ing directly with individual employees regarding
take-home pay, and by unilaterally granting pay in-
creases and changes in working conditions.
2. We also agree with the Trial Examiner's find-
ing that the Respondent independently violated
Section 8(a)(1) of the Act by bargaining directly
with individual employees regarding take-home
pay, and by unilaterally effectuating such increases
and changes in working conditions. The General
' Par 2 ( b) of the Trial Examiner's Recommended Order, which we
adopt as modified below , does not , of course , require Respondent to pay
the health , welfare , or pension contributions for any striking employee for
the period he was on strike
P We note that par I(b ) of the Trial Examiner 's Recommended Order
Counsel excepts, however , to the Trial Examiner's
apparently inadvertent failure to find certain addi-
tional independent violations of Section 8(a)(1).
We find merit in these exceptions. As alleged in the
complaint , the record shows that Supervisor Beck
offered increased take-home pay and added pay op-
portunities such as overtime and other types of
work to employees Levi Miller ( around June 1),
Merlyn Miller ( around mid -June ), and Leonard
Smith ( in early July) as inducements to abandon
the strike and return to work . In addition , Super-
visor Newcomer told Leonard Smith and another
employee ( in April ) and employee Merlyn Miller
(in May ) that he , Newcomer, "didn't look for
Portage to sign a new contract " and "was sure"
Portage "was going to drop out of the Union."
Similarly, Supervisor Beck told em p loyees Schock
(in May ), Levi Miller ( in May and June), and
Smith ( in May ) that Portage was not going to "go
along with " the Union any longer . Accordingly, we
find that , by each of these unlawful inducements to
abandon the strike and return to work ,' and by the
announcements of Respondent 's intent to reject the
Union in future bargaining and not to sign a con-
tract, Respondent violated Section 8(a)(1) of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, Portage Realty Cor-
poration, South Bend, Indiana, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as so modified:
1. Insert after paragraph 1(c) the following, and
reletter present paragraphs 1(d) and (e) as (e) and
(f) accordingly:
"(d) Announcing to its employees that it intends
by various specific means to refuse to bargain col-
lectively with Local 413, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, with
respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employ-
ment."
2. Delete from relettered paragraph 1(e) the
words "like or related" and insert in their place the
word "other."
requires the Respondent to cease and desist from , inter alia , offering or
promising employees benefits " to induce them to refrain from" their activi-
ties on behalf of the Union , and covers part of the additional unlawful con-
duct found herein
184 NLRB No. 4
PORTAGE REALTY CORPORATION 29
3. Insert the following as a separate paragraph
following the indented unit description in the
Notice to Employees marked "Appendix":
We will not tell you that we intend to
refuse to bargain collectively with the Union
over the above subjects
4. Delete from the fifth indented paragraph of
the revised Notice to Employees the words "like or
related" and insert in their place the word "other."
TRIAL EXAMINER'S DECISION
ABRAHAM H. MALLER, Trial Examiner: On June
19, 1969, Local 413, United Brotherhood of Car-
penters and Joiners of America, herein called the
Union, filed a charge against Portage Realty Cor-
poration, herein called the Respondent. Upon said
charge, the Regional Director for Region 25 of the
National Labor Relations Board, herein called the
Board, on August 26, 1969, issued on behalf of the
General Counsel a complaint against the Respon-
dent. The Respondent filed an answer to the com-
plaint, in which it denied the allegations of unfair
labor practices. Thereafter on October 3, and 16,
1969, the Regional Director filed an amendment
and a second amendment, respectively, to the com-
plaint. Answers to such amendments were duly
filed by the Respondent, denying all allegations of
unfair labor practices. Briefly, the complaint as
amended alleged that the Respondent had failed
and refused to bargain in good faith with the Union,
had engaged in conduct designed to undermine and
destroy the Union's majority, by unilaterally chang-
ing existing wage rates and other terms and condi-
tions of employment, and bargained individually
with employees in violation of Section 8(a)(5) and
(1) of the Act.
Pursuant to notice, a hearing was held before me
at South Bend, Indiana, on October 30 and 31, and
November 3, 1969. The General Counsel, the
Respondent, and the Charging Party were
represented and were afforded full opportunity to
be heard, to introduce relevant evidence, to present
oral argument, and to file briefs with me. Briefs
were filed by all parties. Upon consideration of the
entire record' and the briefs, and upon my observa-
tion of each of the witnesses, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material
herein, a corporation duly organized under and ex-
isting by virtue of the laws of the State of Indiana.
At all times material herein, Respondent has main-
tained its principal office and place of business at
South Bend, Indiana, and is engaged in the business
of real estate broker, real estate agent, realtor,
seller of land, and also in the business of construc-
tion and sale of residential properties. During the
year preceding the filing of the complaint herein, a
representative period, Respondent, in the course
and conduct of its business operations, sold homes
the gross value of which exceeded $500,000. Dur-
ing said year, Respondent received goods valued in
excess of $10,000 transported to its facility in in-
terstate commerce directly from States other than
the State of Indiana, and purchased and received
goods at its facility at South Bend valued in excess
of $10,000 from firms in the State of Indiana,
which firms in turn purchased said goods and
caused them to be shipped from concerns outside
the State of Indiana. Also, during said period,
Respondent performed services valued in excess of
$50,000 in States other than the State of Indiana.
Accordingly, I find and conclude that the Respon-
dent is engaged in commerce within the meaning of
the Act and that it will effectuate the policies of the
Board to assert jurisdiction here.
If. THE LABOR ORGANIZATION INVOLVED
Local 413, United Brotherhood of Carpenters
and Joiners 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 ISSUES
1. Whether the Respondent bargained in good
faith with the Union
2. Whether the Respondent offered, promised,
and granted to its employees improved wages,
hours, and working conditions if they left the
Union.
3. Whether the strike of Respondent's em-
ployees was an unfair labor practice strike.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
It was stipulated and I find that on or about 1956,
a majority of the employees of Respondent in a unit
consisting of all carpenter employees of Respon-
dent, exclusive of office clerical employees, guards
and all supervisors as defined in the Act, designated
the Union as their representative for the purposes
of collective bargaining with the Respondent; and
at all times since 1956 and continuing to the date of
the hearing, the Union has been the representative
for the purposes of collective bargaining of the em-
ployees in said unit, and by virtue of Section 9(a)
of the Act, has been and was until the date of the
hearing , the exclusive representative of all em-
ployees in said unit for the purposes of collective
' The General Counsel has filed a motion to correct the record in certain
particulars No opposition to the motion has been filed Upon considera-
tion of the motion, it is hereby ordered that the record be corrected as
requested
30 DECISIONS OF NATIONAL
bargaining with respect to rates of pay, wages,
hours of employment, and other terms and condi-
tions of employment. Until 1966, the collective-
bargaining agreements signed by the Respondent
and the Union were identical with those signed by
contractor members of the General Building Con-
tractors Association of South Bend and Mishawaka,
Indiana. In 1966, a group of contractors who built
primarily homes, bargaining jointly, demanded a
wage differential from that set forth in the standard
association agreement , and the parties agreed to a
rider applying to residential construction of not
more than one or two family units. The effect of
this rider was to grant a 35-cent-an-hour discount
to employers engaged in home building, and, addi-
tionally, delayed new contribution rates to the
Health and Welfare Fund for another year. The
1966 agreement was due to expire by its terms on
May 31, 1969.2
B. Sequence of Events
1. The Union proposes negotiations for a new
contract
Under date of February 25, 1969,3 George Elrod,
business representative of the Union, wrote to the
Respondent stating the Union's desire to "ter-
minate" the agreement on its expiration date, and
requesting a meeting with representatives of the
Respondent as soon as possible for the purpose of
negotiating a new collective-bargaining agreement 4
Under date of February 27, the Respondent, by
Earl L. Kime, executive vice president, replied in
part as follows:
For may [sic] years this corporation has at-
tempted to negotiate provisions in our collec-
tive bargaining agreement which would coin-
cide with our business of building homes. In-
stead, we have been forced to accept the
general terms of the general contractor's
agreement which are not applicable to our
operation.
The letter concluded by agreeing to the termination
of the existing contract at its expiration date, but
did not respond to the Union's request for a meet-
ing for the purpose of negotiating a new agreement.
On March 4, the Union, by its attorney, sent the
required statutory notification of the contract's ex-
piration to the State and Federal mediation and
conciliation services Thereafter, there was no com-
munication between the parties until April 12,
when Business Representative Elrod again wrote to
the Respondent, expressing surprise that the
Respondent had not telephoned to arrange a
2 The basic agreement with the Association was reopened in December
1968, and a new agreement was signed on December 9 This did not apply
to home builders whose contract remained in effect until May 31, 1969
' Unless otherwise indicated, all events referred to herein occurred dur-
ing 1969
4 The notice was pursuant to a provision in the contract under which the
LABOR RELATIONS BOARD
negotiating session and suggesting that a meeting be
arranged during the week of April 14
Under date of April 18, Respondent replied to
the Union 's letter , repeating its willingness to "ter-
minate" the existing agreement . The letter pointed
out that , faced with the probability that without an
agreement , members of the Union would not be al-
lowed to work for the Respondent , the Respondent
had to study the laws and conditions , etc , under
which most homebuilders in the area operated, and
explained that , since most of the homebuilders
were nonunion, the Respondent had to place itself
in the same position in order to compete with the
nonunion builders However , the letter continued
that if the Union would present a draft agreement
which would incorporate the conditions , rules, and
regulations used by the nonunion builders in the
area, it would consider entering into such an agree-
ments The letter closed with suggested dates for a
meeting
2. The meeting of April 29
The parties met on April 29 Present for the
Union were Business Representative Elrod, Union
President Klein , and steward Roy Nusbaum. The
Company was represented by President Paul D
Hass and Executive Vice President Earl L. Kime.
At the outset, Kime inquired as to the authority of
the committee to accept a proposal. President Klein
responded that the committee had authority to
negotiate, but that all agreements had to be ratified.
Kime then requested that the Union try to find a
way whereby the entire membership of the Union
did not have to vote on a tenative agreement with
the Respondent Business Representative Elrod said
that he would get advice from counsel on this
matter. Kime then brought up the fact that the
Respondent's competition was principally non-
union.
Business Representative Elrod presented Kime
with a copy of the association agreement, stating
that this was the Union's starting point and that he
expected a counterproposal. Kime made three basic
complaints. wage rates, apprentice rates, and over-
time rates With regard to overtime, Kime stated
that he wanted time-and-a-half and makeup time on
Saturdays. Business Representative Elrod replied
that the Union would not accept the makeup time,
but that it was leaning toward time-and-a-half
which was a reduction from the then existing dou-
ble-time rate With regard to apprentice rates,
Kime complained that his nonunion competition
did not have to pay this Elrod replied that the
Union would do "everything in our power" to
lower the rates, but that it could not do this in any
contract was automatically renewable from year to year after May 31,
1969, unless notification was given of the desire to terminate or amend, at
least 2 months prior to the expiration date
5 Although in the letter, Respondent carefully avoided the use of the
term " nonunion builders," Executive Vice President Kime admitted on
cross-examination that he was, in the letter, referring to nonunion builders
PORTAGE REALTY CORPORATION 31
one specific contract, because the apprenticeship
program involved other contractors. Kime charac-
terized the journeymen's rates as ridiculous, and
Elrod replied that they were negotiable. Kline also
raised a question about the provision in the con-
tract relating to pile driving. Elrod asked him if he
did any pile driving, and Kime replied in the nega-
tive.
Elrod then asked the Respondent for a counter-
proposal, stating that the association agreement was
the Union's first proposal, its starting point. Kline
replied that he would review and consider the
proposal and would get back to the Union. Elrod
then gave the Respondent a copy of the memoran-
dum of agreement after writing the word "sample"
across the top.6
3. The Company informs its employees that i.t
would not sign a union contract
In the meantime, the Respondent informed some
of its employees that it did not intend to sign a con-
tract with the Union. Thus, early in April Super-
visor Clyde Newcomer told employee Leonard
Smith and at least one other employee that "he
didn't look for Portage to sign a new contract."
Similarly, in May, Supervisor Newcomer told em-
ployee Merlyn Miller that "he was sure that the
company was going to drop out of the Union."'
Also, early in May, the Respondent circulated
among its employees a letter in which it quoted that
part of Elrod's letter of February 25, which stated
that the Union desired to "terminate" the contract.
4. The meeting of May 26
After further correspondence, the parties met
again on May 26. The meeting opened with Kime's
raising a question about the fabrication and subcon-
tracting clauses. Elrod replied that the fabrication
clause was the same as the one in previous con-
tracts. Kime replied that he did not understand it
and was not aware that it was in there. Elrod ex-
plained that the subcontracting clause had been
tentatively agreed to between the Union and Hart-
man and Place, two residential contractors that had
contracts with the Union. Kime said that he did not
want the subcontracting clause. Elrod asked Kime
if the Company had a counterproposal, and Kime
replied that he did not. Elrod told Kime that, upon
the advice of counsel, it was agreed that only those
carpenters in residential construction would vote
on a proposed agreement. Kime replied that this
was a little progress. Kime then complained that the
Union was not negotiating in good faith because of
the association agreement, and Elrod again asked
him for a counterproposal. Kime responded that
the basic question that the Respondent had to de-
cide was whether it would quit homebuilding or
join ranks with Willie the Builder (Willis Construc-
tion Company, a nonunion residential builder).
After further discussion, Elrod again asked for a
counterproposal. Kime replied that "he thought he
had made a counterproposal and had proposed to
terminate the agreement and he didn't feel it was
necessary to make any counterproposal regarding
any new agreement." The meeting ended with El-
rod's promise to deliver a copy of the tentative
agreement with Hartman and Place to the Respon-
dent's offices. A copy of the tentative agreement
was delivered to the Respondent on May 28 or 29.
5. Respondent's simultaneous effort to eliminate
the Cement Masons Union
The Respondent also had a contract with Local
101 of the Cement Masons Union. The contract
which covered also Hartman and Place, the other
residential contractors, was also due to expire May
31. Pursuant to a notice from that union, the
Respondent met on March 3 with Ferrell E. John-
son, and two other representatives of that union.
Prior thereto, the Respondent had sent Local 101 a
letter stating that the Respondent would like to ter-
minate the contract and its relationship with Local
101. At the meeting, the Cement Masons gave the
Respondent a proposal and indicated a desire to
negotiate before the expiration of the old contract.
Johnson asked Kime if he had any counter-
proposals, and Kime replied that he had none, but
that he would study the contract. Johnson heard
nothing further from the Respondent, and around
May 18 or 20 called Kime and arranged for another
meeting on May 27. At that meeting, Kime stated
that he would not make any offer to Local 101. The
contract expired by its terms on May 3 1, and a few
days later the members of that union withdrew
from membership and returned to work for the
Respondent.
6. Respondent's offers to employees to increase
their take-home pay
Meanwhile, and continuing after the strike,
Respondent embarked on a program of weaning
away its carpenter employees from the Union. This
The account of this and the other meetings (except that of September
I I) is taken from the detailed testimony of Business Representative Elrod
based on his notes made at the meetings and was supported by the stipu-
lated testimony of President Klein I credit Elrod's testimony Kime's
testimony as to what occurred does not differ substantially from Elrod's, as
Kime admitted Kime did not make any notes , but testified from memory
Hass, although present at all meetings , did not testify In his account of the
meeting, Kime testified that the Union was adamant in its insistence that
the entire membership vote on an agreement However, it is clear from El-
rod's testimony that at the second meeting, he informed Kime that the
Union had checked with its attorney , and it had been agreed that only car-
penters working for residential builders would vote on the agreement
Similarly, Kime testified on direct examination that the Union insisted that
the Respondent sign the first proposal that day On cross -examination,
however, he admitted that the Union only " asked" that the Respondent ac-
cept the first proposal
'The credited testimony of Smith and Miller Newcomer , admittedly a
supervisor , was not called as a witness
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it sought to accomplish by offering to increase their
wages by the amount of 35 cents per hour, previ-
ously paid to the Union for fringe benefits, if they
remained after the contract expired ." Thus, in May,
employee Stanley Golba overheard Construction
Supervisor Elon W. Beck, admittedly a supervisor
within the meaning of the Act, talking to another
employee about an addition of 35 cents an hour
and, upon inquiry , was told that the 35 cents an
hour previously paid as fringe benefits would be
added to the paycheck as wages after the union
contract expired. Beck had similar conversations
with employees James Morgan, Levi Miller, Merlyn
Miller , and Leonard Smith In his conversation with
Morgan , Beck implied that Morgan would work a
50-hour week, instead of the usual 40. In Smith's
case, Beck offered him an additional 10 cents per
hour if he learned cement finishing and did that
type of work Also in June, when employee Gordon
Schock went to pick up his last paycheck, Beck
told him that the Respondent was not going along
with the Union; that quite a few of the men were
going to stay on; and that if Schock wanted to stay
on, the Respondent would pay him $5 35 an hour
(as against the $4 78 plus fringe benefits that he
was receiving), but that he would receive no fringe
benefits 9
7 The strike
On June 2, the Union held a meeting of carpen-
ters employed by the homebuilders. Business
Representative Elrod explained that a tentative
agreement between the Union and builders Hart-
man and Place had been reached, but that the
Union had never received a counteroffer from the
Respondent. The members authorized a strike by a
vote of 43 to 2. A strike was called against Respon-
dent the next day. No pickets, however, were
placed on the jobsites until the middle of June
because of the general practice among unions in
that area of attempting to avoid involvement by the
other trades in the area Thereafter there were
pickets at Respondent's jobsites, except for a short
period in September when little or no work was in
progress The picketing signs read' "On Strike for
Contract " At the time of the hearing the Union
was still on strike.
8. Respondent grants pay raises
After the contract expired, the Respondent
changed the wage structure by adding 35 cents to
the basic rate and dropping the fringe benefits to
those carpenters who abandoned the strike Kime
admitted that the increase of the basic rate by 35
cents per hour was a "pay raise " The two car-
penter foremen , Kaufman and Holderbaum , 10 were
raised from $5 03 per hour to $5.63. Employee
Levi Miller was given an additional increase of $25
a month for the use of his truck, plus 5 hours of
overtime each week. The Union was never notified
that the Respondent contemplated making a
change in the wage rates
9. The meeting of August 25
Following the calling of the strike, the Union
communicated with Federal Mediator Hupp,
advised him of the strike, and asked him to set up
another meeting with the Respondent. Hupp's
efforts apparently were not successful.
On August 18, the Union sent a telegram to the
Respondent demanding further bargaining and
asked for the Respondent's suggestion of time and
place of meeting . By letter dated August 19, the
Respondent stated that it was bewildered by the
telegram as it had "always promptly cooperated in
meeting with representatives of the Union to bar-
gain in good faith for an agreement ." It suggested a
bargaining meeting to be held on August 25 at its
office, and the parties met on that date.
Kime opened the meeting by stating that the
Respondent would be willing to sign a contract
which was based on the economic conditions of the
area. Elrod stated that the Union had completed
negotiations and signed agreements with Hartman
and Place and other homebuilders, and would like
to have this type of agreement with the Respon-
dent. He thereupon showed Kime either the signed
agreement or a copy thereof He explained further
that the controversial subcontracting clause had
been deleted. Kime replied that the Hartman and
Place agreement was out of the economic picture
for the Respondent and he could not agree to it
Elrod then stated that this represented the Union's
third proposal and that if he did not like the con-
tract, he should put something in writing so that the
Union could consider it. Kime replied, "Well,
didn't I put it in writing?" Elrod asked him what he
meant by that, and Kime referred to the letter in
which the Respondent had agreed to terminate the
previously existing agreement and said, "That's our
proposal." Elrod demanded a counterproposal from
the Respondent, and Kime said that it would take
some time for research to come up with an agree-
ment-about 2 weeks-but he would come up with
a written counterproposal and would get in touch
with Elrod to set up a meeting to present the coun-
terproposal
" Under the contract , Respondent paid the Union 35-1 /2 cents per hour
for each carpenter employee, made up as follows 20 cents into the pension
fund , 15 cents to the health and welfare fund , and one - half cent for the ap-
prentice training fund
The foregoing is based on the credited testimony of the named em-
ployees Schock 's testimony was undenied Superintendent Beck did not
recall any such conversation with Golba, but admitted offering the addi-
tional 35 cents per hour to the other employees
10 The status of Holderbaum as a member of the unit was not agreed on
by the parties , who stipulated as to the rest of the employees in that unit
No evidence was offered on the matter
PORTAGE REALTY CORPORATION 33
10. The meeting of September 1 1
The parties met for the last time on September
11 Elrod was not present, and President Klein
spoke for the Union and took minutes." Kime
passed out a four-page proposal with a letter of ex-
planation. Klein examined the proposal and re-
marked about the absence of a wage proposal.
Kime admittedly responded "that we needed to
work on an agreement that fits our business before
we can discuss the wages " The meeting ended with
Kime's urging the Union to give his proposal seri-
ous consideration.12
C. Concluding Findings
1 The refusal to bargain
It is clear from the foregoing, and I find, that the
Respondent had determined to rid itself of the
Union and pursuant to that determination did not
bargain in good faith with the Union in violation of
Section 8(a)(5) and (1) of the Act Respondent's
conduct in the negotiating sessions demonstrates
beyond doubt that the Respondent did not enter
into the negotiations "with an open mind and pur-
pose to reach an agreement consistent with the
respective rights of the parties" (L. L. Mature
Transport Company v. N.L.R.B , 198 F 2d 735, 739
(C.A. 5) ). Indeed, Respondent's actions in these
sessions do not rise even to the level of "surface
bargaining " which , in itself , has been condemned as
violative of Section 8(a)(5) of the Act. N.L.R.B. v.
Herman Sausage Company, 275 F.2d 229, 232
(C.A. 5). Thus, until the September meeting, the
Respondent merely rejected the Union's proposals
and did not make any proposals of its own, other
then its proposal to terminate the then existing con-
tract. And when it finally made a counterproposal
to the Union in September, its proposal was
meaningless, as it contained no proposed wage
rates or other specific working conditions. It was a
proposal in form only, wholly devoid of sub-
stance-in sum, a pure sham. It is evident from the
negotiations that the Respondent never intended to
enter into an agreement with the Union and made a
very poor pretense of going through the motions of
bargaining. Texas Coca-Cola Bottling Company, 146
NLRB 420, 430-431, enfd.. 365 F.2d 321 (C.A. 5),
N.L.R.B. v. Reed & Prince Manufacturing Company,
118 F.2d 874, 882 (C.A. 1), cert. denied 313 U.S.
595,13
Since it is clear from Respondent's conduct dur-
ing the negotiations that Respondent did not bar-
gain in good faith, it is unnecessary to look beyond
the negotiations.14 Yet if one were to look at the
totality of Respondent's conduct, such an examina-
tion would confirm and solidly buttress the conclu-
sion that the Respondent did not intend to enter
into a contract with the Union. First, there is the
undenied testimony that Respondent's Supervisor
Newcomer told employees while the negotiations
were pending that "he didn't look for Portage to
sign a new contract," and that "he was sure that the
Company was going to drop out of the Union."
Chatham Manufacturing Company, 172 NLRB No.
219. Second, while the negotiations were going on,
Respondent approached employees individually
and offered them increased take-home pay if they
would remain with the Respondent after the expira-
tion of the contract. Third, it granted individual
employees such increases after the strike had com-
menced to induce them to leave the Union and
return to work. Fourth, it engaged in parallel treat-
ment of Local 101 of the Cement Masons Union
which had attempted unsuccessfully to negotiate a
new contract with the Respondent at the same time
as the Union herein.
Not only does the foregoing recital demonstrate
beyond dispute that the Respondent did not bargain
in good faith, but it may be noted that Respon-
dent's conduct in bargaining directly with in-
dividual employees regarding take-home pay was
independently violative of Section 8(a)(5) of the
Act,'-' as well as of 8(a)(1),11 as was its unilateral
granting of such increases and changes in working
conditions.17
Respondent contends that it made no unilateral
changes in wages and working conditions. Its argu-
ment runs as follows: The payment of 35 cents per
hour to the union health and welfare and pension
funds was made pursuant to the preexisting con-
tract and related only to members of the Union.
When the contract expired and certain employees
abandoned the strike, they were no longer members
of the Union, and Respondent was relieved of its
obligation to pay this sum to the Union. Since the
Respondent did not want to cut wages of these em-
" The account of this meeting is based on the credited testimony of
Klein
ix Other features of Respondent's proposal are The only reference to
hours of work or payment of overtime is a provision that the Respondent
should be subject to the Federal Wage and Hour Act The provision in the
prior contract relating to maintenance of membership in the Union was
replaced by language expressly negating such requirement No provision
was made for the following matters which had been contained in the prior
agreement apprenticeship program, fringe benefits, e g , health and wel-
fare and pension programs, holidays, jurisdictional dispute procedure, al-
most all working conditions, e g , report for work, layoff, discharge, and
slow-up pay, shifts, work limitations, premium pay, and work outside the
territory In lieu thereof, the proposal contained a strong management
rights clause
" Indeed, the instant case is even stronger than Reed & Prince There, the
court observed " though agreeing with the Union on some matters [the
Respondent] showed no disposition to consider the seriously disputed
items from any other point of view than requiring a complete surrender on
the part of the Union to the proposals of the respondent " In the instant
case, the Respondent did not agree with the Union on miv matters, and of-
fered no proposals whatsoever
"Orkin Exterminating Company of Florida, Inc , 152 NLRB 83, 84
"In the more difficult case the Board must take an intelligent look at
the totality of the Respondent's conduct " See also N L R B v Reed &
Prince Manufacturing Company, 205 F 2d 131, 134 (C A I ), cert denied
346 U S 887, Teras Cocoa-Cola Bottling Company, supra, 429
15 Medo Photo Supply Corporation v N L R B , 321 U S 678, 683-684
16 E g , Sunshine Art Studios, 152 NLRB 565, 569-570
it N L R B v Katz, 369 U S 736, 745, 747
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees, it paid them the sum of 35 cents per hour
previously paid to the Union.
The fallacy of this argument is that it was the
Respondent's unfair labor practice in making the
offer to the employees to induce them to abandon
the strike that created the situation. Thus, in uni-
laterally effectuating the change in wages and
working conditions, Respondent was merely carry-
ing out its illegal promises to the individual em-
ployees . Furthermore , Respondent 's argument
ignores the fact that employee Levi Miller was
given an increase of $25 per month for the use of
his truck, plus 5 hours of overtime each week-a
clear change in working conditions. Likewise, the
carpenter foremen received raises of 60 cents per
hour.
Despite the strike, the Union continued to be the
exclusive bargaining representative of the em-
ployees. At no time, either before or after the strike
commenced, did Respondent bargain with the
Union concerning these changes, as it was required
by law to do. N.L.R.B. v. Remington Rand, Inc.,
130 F.2d 919, 927 (C.A. 2); Industrial Union of
Marine & Shipbuilding Workers v. N.L.R.B., 320
F.2d 615, 620 (C.A. 3), cert. denied 375 U S. 984;
Sioux City Bottling Works, 156 NLRB 379, 385;
Harold W. Hinson, d/b/a Hen House Market No. 3,
175 NLRB 596.18
It is well settled that the calling of a strike does
not relieve the employer of his duty under the Act
to bargain collectively with his employees. See, e g.,
N.L.R.B. v. Remington Rand, Inc., supra, 927;
Black Diamond S. S. Corporation v. N.L.R.B., 94
F.2d 875 (C.A. 2), cert. denied 304 U.S. 579. As
the Court of Appeals for the Second Circuit stated
in N.L.R.B. v. Pecheur Lozenge Co., Inc., 209 F.2d
393, cert. denied 347 U.S. 953: "On the contrary,
the need for carrying out that obligation when a
strike is in progress is all the greater in order that a
peaceful settlement of the dispute may be
reached." (Id. at 403).
Accordingly, I find and conclude that the
Respondent failed and refused to bargain with the
Union in violation of 8(a)(5) and (1) of the Act.
2. The nature of the strike
That the strike which the Union called on June 2
was an unfair labor practice strike is so clear from
the record as to obviate the necessity for extended
discussion. It followed Respondent's egregious un-
fair labor practices in failing to negotiate in good
faith and was called by a vote of the membership of
the Union because Respondent had not bargained
in good faith. Despite this, Respondent refers to the
strike as a "work stoppage" and argues that it was
the expiration of the contract, rather than any al-
leged unfair labor practices, that was the sole
reason for the Union's action. Respondent points to
the fact that the Union did not immediately picket
the jobsites and, further, when it did so 2 weeks
later its picket signs read: "On Strike for Contract."
The argument is patently lacking in merit.
Whether the strike was an unfair labor practice
strike or otherwise is determined by Respondent's
intransigent failure to bargain in good faith and by
the Union's vote to strike for that express reason.
And, as I have indicated, this is crystal clear from
the record. The fact that the Union did not picket
immediately is of no consequence. Business
Representative Elrod explained that the Union's
failure to do so was because of an understanding
with other unions . In any event, there is no legal
requirement that a union must picket the employer
when it calls a strike . Nor is it significant that, when
the Union did picket, its signs did not in express
terms charge the Respondent with unfair labor
practices.19 Thus, the fact that picket signs in-
dicated that the Union sought recognition was held
not to be determinative of the nature of the strike
where the entire record showed that recognition
was not an objective of the strike. Happ Brothers
Company, Inc., 90 NLRB 1513, 1516-117, reversed
on other grounds 196 F.2d 195 (C.A. 5). Similarly,
where the picket signs indicated that a strike had
economic objectives, it was held that this circum-
stance did not require a holding that the strike was
economic in character. American Manufacturing
Company of Texas, 98 NLRB 226, 243, reversed on
other grounds 203 F 2d 212 (C.A. 5).20
Moreover, the strike was prolonged and ag-
gravated by Respondent's continued unfair labor
practices. Thus, after the inception of the strike it
unilaterally changed wages and working conditions,
and when asked to resume bargaining, continued to
bargain in bad faith. Hence, even if the strike had
not been an unfair labor practice strike at its incep-
tion , the Respondent's unfair labor practices con-
verted the strike to an unfair labor practice strike.
N.L.R.B. v. Crosby Chemicals, Inc., 188 F.2d 91, 95
(C.A. 5); N L.R.B. v. Remington Rand, Inc., 130
F.2d 919, 928, fn 8(C.A. 2), General Drivers and
Helpers, Local 662 v. N.L.R.B., 302 F.2d 908, 911
(C.A.D C.), cert. denied 371 U.S. 827.
i' There is no contention or evidence that the desertion of the employees
who abandoned the strike destroyed the Union 's majority To the contrary,
the record shows that at the time of the strike , Respondent employed 23
men who were members of the Union Only 5 (plus Foreman Holdcrbaum
whose status as a member of the unit was in dispute ) abandoned the strike
And even if the Union 's majority had been destroyed, such destruction
could not be relied on by Respondent , as it was its unfair labor practices
that brought about such a situation Medo Photo Supply Corp v N L R B
supra, 687
i' The signs which read "On Strike for Contract " did not negate the fact
that the strike was an unfair labor practice strike As previously found, in
voting to strike , the Union had taken the position that it had been denied a
contract by virtue of Respondent 's unfair labor practice in refusing to bar-
gain in good faith
x" it is, of course , well settled that a strike directed against an employer's
unfair labor practice does not lose its character as an unfair labor practice
strike simply because it may also have economic objectives See, e g ,
N L R B v Remington Rand, Inc , 94 F 2d 862, 872, cert denied 304 U S
576
PORTAGE REALTY CORPORATION
Respondent relies on cases that are inapposite. In
N.L.R.B. v Getlan Iron Works , Inc., 377 F 2d 894
(C.A. 2), the court disagreed with the Board 's hold-
ing that evidence of the employer 's conduct sub-
sequent to a bargaining session demonstrated that
the employer had not bargained in good faith. The
court relied on the fact that at the last bargaining
session the employer agreed to some of the terms of
the contract proposed by the Union and rejected
others and had made a substantially economic
offer . In the case at bar , the Respondent had made
no offer whatsoever during the negotiations, but
limited itself to rejecting the Union 's proposal. The
case of Hawaii Meat Co. v. N.L.R.B., 321 F.2d 397
(C.A. 9), bears no relationship to the case at bar.
The only issue involved there was whether an em-
ployer faced with an economic strike may subcon-
tract his work without bargaining with the union
about that decision . Respondent 's reliance upon
Simmons, Inc. v . N.L.R.B., 315 F 2d 143 (C.A. 1),
is likewise misplaced . There , a dissident group of
employees , in disagreement with the union , caused
the employees to strike . The employer discharged
this group and erroneously included one employee
who had not participated in the action of the group.
Thereupon , the employees again struck to protest
the discharged . The court held that although the
discharge of the one employee was an unfair labor
practice , it was apparent that the second strike
would have occurred in any event because of the
employer 's discharge of the dissident group. Ac-
cordingly , it concluded that the strike was not
caused by the unfair labor practice of the employer
with regard to the individual employee who had
been wrongfully discharged . In so holding, the
court did not depart from the well -established prin-
ciple that " if an unfair labor practice had anything
to do with causing the strike, it was an unfair labor
practice strike " ( General Drivers and Helpers, Local
662 v. N.L.R.B ., supra ). The facts of the case at bar
place it squarely within the rule just quoted. Ac-
cordingly , I find and conclude that the strike which
occurred on June 2 was an unfair labor practice
strike from its inception and was prolonged and ag-
gravated by Respondent 's unfair labor practices
thereafter.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Portage Realty Corporation set
forth in section IV, above, occurring in connection
with the operations described in section I, above,
have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow
thereof.
" Harold W Hinson, dibla Hen House Market No 3, supra
tz The prior history of the Porter case is as follows The original Board's
decision and order appears at 153 NLRB 1370 and was enforced by the
VI. THE REMEDY
35
Having found that the Respondent has engaged
in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act, I shall recommend
that it cease and desist therefrom and that it take
certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Respondent has refused to
bargain with the Union in violation of Section
8(a)(5) and (1) of the Act, I shall recommend that
it be ordered to bargain in good faith with the
Union, upon request, as the exclusive representa-
tive of all its employees in the appropriate unit
described concerning rates of pay, wages, hours of
employment, and other terms and conditions of em-
ployment and, if an understanding is reached, em-
body csuch an understanding in a signed agree-
ment. In addition, in order to restore the status quo
ante, I shall recommend that the Respondent be or-
dered to make whole the employees in the unit by
paying all health and welfare and pension contribu-
tions, as provided in the expired collective-bargain-
ing agreement, which have not been paid and which
would have been paid absent Respondent's unlaw-
ful unilateral discontinuance of such payments
found herein. Said payments shall continue until
such time as the Respondent fulfills its bargaining
obligation by either bargaining out a new agree-
ment covering the subject or bargaining to an im-
passe 21
The Union contends that the Board should go
further and require the Respondent "to commence
bargaining with an initial offer being the old con-
tract plus the wage increases already given, with, of
course, the concessions made by the Union." It ar-
gues that since the Respondent was willing to rid it-
self of the Union at this price, this should be its ini-
tial bargaining offer. This, the Union says, is not an
unreasonable offer even in a vacuum, because
Hartman and Place, Respondent's competitors, had
agreed to a 62-cent wage increase, effective June 1,
1969, and an additional 40 cents effective June 1,
1970. In support of its position, the Union relies on
H. K. Porter Co., 172 NLRB No. 72, upon remand
from the Court of Appeals for the District of
Columbia, enforced 414 F.2d 1123, cert. granted
34 LW 3114, where the Board ordered the em-
ployer to grant a checkoff provision to the union
because the employer's bargaining position oppos-
ing a checkoff was due solely to its desire to thwart
agreement on a contract.22
The Union's proposal formula is too simplistic. It
ignores the fact that in granting the 35-cent raise to
the journeymen and the 60-cent raise to the
foremen, the Respondent relieved itself of the other
working conditions, including fringe benefits, im-
posed by the preexisting contract. The raise thus
Court of Appeals, 363 F 2d 272, cert denied 385 U S 851, order clarified,
389 F 2d 295
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
granted does not, therefore , reflect what the
Respondent would have offered had it bargained in
good faith . Furthermore , to the extent that the
Union 's position is supported by the Porter case,
such support has evaporated . As this decision is
being written , the Supreme Court has reversed the
decision in that case, holding that " allowing the
Board to compel agreement when the parties them-
selves are unable to agree would violate the funda-
mental premise on which the Act is based-private
bargaining under governmental supervision of the
procedure alone, without any official compulsion
over the actual terms of the contract ." (397 U.S.
99, 108.)
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law and the entire record in the
case, I recommend that the Respondent, its of-
ficers, agents, successors, and assigns, shall.
1 Cease and desist from.
(a) Failing or refusing to bargain collectively
with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of em-
ployment with Local 413, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, as
the exclusive representative of its employees in the
appropriate unit described below and, if an agree-
ment is reached, embody such understanding in a
signed agreement. The bargaining unit is
All carpenter employees of Respondent, exclu-
sive of office clerical employees, guards, and
all supervisors as defined in the Act and exclu-
sive of all other employees.
(b) Bargaining directly and individually with em-
ployees concerning rates of pay, wages, hours of
employment, and other terms and conditions of em-
ployment, or offering, promising, or granting em-
ployees wage increases and/or other benefits and
improvements in their working conditions and
terms of employment to induce them to refrain
from becoming or remaining members of the
Union, or to induce them to abandon their mem-
bership in and activities on its behalf.
(c) Unilaterally changing the wages or working
conditions of employees without notifying, consult-
ing, or bargaining with the Union prior to making
such changes, except that nothing herein contained
shall be construed as requiring Respondent to
revoke any wage increase or other benefits which it
has heretofore granted.
(d) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of the right to self-organization, to form,
join, or assist any labor organization, to bargain col-
lectively through representatives of their own
choosing, and to engage in other concerted activi-
ties for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from
any and all such activities, except to the extent that
such right may be affected by an agreement requir-
ing membership in a labor organization as a condi-
tion of employment, as authorized in Section
8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of
1959
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request , bargain collectively with
Local 413, United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, as the exclusive
representative of the employees in the aforesaid ap-
propriate unit with respect to rates of pay, wages,
hours of work , and other terms and conditions of
employment and, if an understanding is reached,
embody such understanding in a signed agreement
(b) Make whole the employees in the ap-
propriate unit by paying all health and welfare and
pension contributions , as provided in the expired
collective-bargaining agreement , which have not
been paid and which would have been paid absent
Respondent 's unlawful conduct found herein, and
continue such payments until such time as the
Respondent negotiates in good faith with the Union
to a new agreement or an impasse.
(c) Post at its office and facility at South Bend,
Indiana, copies of the attached notice marked "Ap-
pendix."23 Copies of said notice, on forms provided
by the Regional Director for Region 25, after being
duly signed by an authorized representative, shall
be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter , in conspicuous places, in-
cluding 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.
(d) Notify said Regional Director , in writing,
within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.24
29 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the Na-
tional 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 the event that this Recommended Order is adopted by the Board,
this provision shall he modified to read "Notify the Regional Director for
Region 25, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith " _
PORTAGE REALTY
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail or refuse to bargain collec-
tively with respect to rates of pay , wages, hours
of employment, and other terms and condi-
tions of employment with Local 413, United
Brotherhood of Carpenters and Joiners of
America, AFL-CIO, as the exclusive represen-
tative of our employees in the unit described
below, and , if an agreement is reached, em-
body such understanding in a signed agree-
ment . The bargaining unit is:
All carpenter employees employed by
us, exclusive of office clerical employees,
guards, and all supervisors as defined in
the Act and exclusive of all other em-
ployees.
WE WILL NOT bargain directly and in-
dividually with our employees concerning rates
of pay, wages, hours of employment , and other
terms and conditions of employment , nor will
we offer , promise, or grant employees wage in-
creases and /or other benefits and improve-
ments in their working conditions and terms of
employment to induce them to refrain from
becoming or remaining members of the Union,
or to induce them to abandon their member-
ship in and activities on behalf of the Union.
WE WILL NOT unilaterally change the wages
or working conditions of our employees
without notifying , consulting , or bargaining
with the Union prior to making such changes,
except that nothing herein contained shall be
construed as requiring us to revoke any wage
increase or other benefits which we have
heretofore granted.
WE WILL NOT in any like or related manner
interfere with , restrain, or coerce our em-
ployees in the exercise of the right to self-or-
CORPORATION 37
ganization, to form, join, or assist any labor or-
ganization, to bargain collectively through
representatives of their own choosing, and to
engage in other concerted activities for the
purpose of collective bargaining or other mu-
tual aid or protection, or to refrain from any
and all such activities, except to the extent that
such right may be affected by an agreement
requiring membership in a labor organization
as a condition of employment, as authorized in
Section 8(a)(3) of the National Labor Rela-
tions Act, as amended, as modified by the
Labor-Management Reporting and Disclosure
Act of 1959
WE WILL, upon request, bargain collectively
with Local 413, United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, as
the exclusive representative of the employees
in the aforesaid appropriate unit with respect
to rates of pay, wages, hours of work, and
other terms and conditions of employment,
and, if an understanding is reached, embody
such understanding in a signed agreement.
WE WILL make to the appropriate funds,
from the date of the expired agreement, all
such health and welfare and pension payments
which we have not made and which we would
have made absent our unilateral changes
PORTAGE REALTY
CORPORATION
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must nog be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 614 ISTA Center, 150 West Market
Street, Indianapolis, Indiana 46204, Telephone
317-633-8921.
427-835 0 - 74 - 4