Portland Wire & Iron Works

National Labor Relations Board - Board Decisions

Mar 13, 1974

209 N.L.R.B. 666 (N.L.R.B. 1974)

666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tube-Lok Products, Eastern Division of Portland
Wire & Iron Works and Shopmen's Local Union
No. 518 of the International Association of Bridge,
Structural and Ornamental Iron Workers,
AFL-CIO. Case 14-CA-7378
March 13, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On October 2, 1973, Administrative Law Judge
Henry L. Jalette issued the attached Decision in this
proceeding. Thereafter, the Respondent and the
General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.'
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity
to present their evidence, the National Labor
Relations Board has found that we have violated the
law and has ordered us to post this notice.
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Shop-
men's Local Union No. 518 of the International
Association of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO, as the exclusive repre-
sentative of the employees in the bargaining unit
described below.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit
described below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Tube-Lok Products, Eastern Division of Port-
land Wire & Iron Works, Mattoon, Illinois, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order, as
modified below:
1. Delete paragraphs l (c) and 2(a) of the recom-
mended Order and reletter the remaining subpara-
graphs accordingly.
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
I While Respondent advised the employees that "our pension plan" was
not implemented because of the uncertainties of prospective bargaining
demands, and thereby violated Sec. 8(a)(I) of the Act, as found by the
Administrative Law Judge, the record does not support the Administrative
Law Judge's conclusion to the effect that a pension plan already formulated
was not implemented , in violation of Sec 8(a)(3). What the record shows is
that Respondent was giving serious consideration to a pension plan when it
decided not to proceed further with its formulation in the face of the
Union's becoming bargaining representative with the likelihood that it
would have a pension plan of its own to propose. We therefore do not
believe that the record warrants the finding of an 8(a )(3) violation and an
order that Respondent "Implement the pension plan which was withheld"
as recommended by the Administrative Law Judge
All production and maintenance employ-
ees at our Mattoon, Illinois, facility, exclud-
ing office clerical employees, professional
employees, watchmen, guards, and supervi-
sors as defined in the Act.
WE WILL NOT refuse to supply information
requested by the Union which is relevant to and
necessary for the purposes of collective bargain-
ing.
WE WILL NOT tell employees that there is
nothing to gain from collective bargaining.
WE WILL NOT tell employees that a pension
plan has not been put into effect, as proposed,
because they selected the above-named Union as
their representative for purposes of collective
bargaining.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
All our employees are free to become and remain
members of Shopmen's Local Union No. 518 of the
International Association of Bridge, Structural and
Ornamental Iron Workers, AFL-CIO, or any other
labor organization.
209 NLRB No. 108
TUBE-LOK PRODUCTS 667
TUBE-LOK PRODUCTS,
EASTERN DIVISION OF
PORTLAND WIRE & IRON
WORKS
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 210 North 12th Boulevard, Room
448, St. Louis, Missouri 63101, Telephone
314-622-4167.
DECISION
STATEMENT OF THE CASE
made untrue and misleading statements to employees that
Respondent was not subject to wage control provisions of
the President's economic stabilization program: that
virtually unlimited wage increases were legal and possible;
that Respondent had not increased wages to the maximum
amount allowable under existing, wage controls; that
Respondent's representations to the contrary were lies; and
that Respondent was lying to its employees "all the way."
In addition, Respondent alleged that Local 518 misrepre-
sented that it had achieved raises up to 62 cents an hour for
employees situated similarly to those employed by Respon-
dent. Respondent alleged further that on January 11, the
day of the election, the Union undertook a telephone
campaign to inform employees falsely that all limitations
on wage increases had been removed by the Federal
Government. After investigation, the Regional Director
issued a Supplemental Decision in which he overruled the
objections in their entirety and certified the Union.
Thereafter, Respondent filed with the Board a request for
review of the Regional Director's Supplemental Decision
which request was denied by the Board on the ground that
it raised no substantial issues warranting review. Since its
certification, the Union has requested that Respondent
bargain with it and Respondent admits that it has refused
to do so.
HENRY L. JALETTE, Administrative Law Judge: This
proceeding arose out of a charge and first amended charge
filed by Shopmen's Local Union No. 518 of the Interna-
tional Association of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO, herein called the Union, on
April 25 and May 23, 1973,1 pursuant to which complaint
issued on May 31, alleging that Tube-Lok Products,
Eastern Division of Portland Wire & Iron Works, herein
called the Respondent, had engaged in unfair labor
practices in violation of Section 8(a)(1), (3), and (5) of the
Act. On July 18, hearing was held in Charleston, Illinois.
On the basis of the entire record herein, including my
observation of the witnesses, and after due consideration of
the briefs filed by General Counsel and Respondent, I
hereby make the following:
FINDINGS OF FACT
1. INTRODUCTION
Respondent is an Oregon operation with a plant in
Mattoon, Illinois, where it is engaged in the manufacture,
sale, and distribution of rollover protective canopies for
heavy equipment and related products.2
On January 11, a majority of Respondent's employees in
a production and maintenance unit, by a secret ballot
election conducted under the supervision of the Regional
Director for Region 14 of the National Labor Relations
Board, designated and selected the Union as their
representative for purposes of collective bargaining with
Respondent. On January 16, Respondent filed timely
objections to conduct affecting the results of the election
alleging that at meetings of employees on the afternoon
preceding the election representatives of the Union had
All dates are in 1973 unless otherwise indicated.
z Commerce is not in issue. The complaint alleges, the answer admits,
and I find, that Respondent meets the Board's direct outflow standard for
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Refusal to Bargain
It is evident from the introductory section above that this
is a test of certification case. At the hearing, Respondent
offered to prove the allegations which had been the subject
of its objections to the election conceding, however, that it
was not proposing to adduce any newly discovered or
previously unavailable evidence, nor did Respondent assert
that there were any special circumstances which would
require the Board to reexamine the decision made in the
representation proceeding. In short, Respondent did not
raise any issue properly litigable in this proceeding
respecting the validity of the certification.3 Accordingly, I
find that Respondent was obligated to recognize and
bargain with the Union which had been duly certified and
that by its refusal to do so Respondent violated Section
8(a)(5) and (1) of the Act.
In addition to requesting recognition and bargaining, the
Union requested that Respondent supply it with certain
information respecting the employees in the unit and
respecting certain conditions of employment. The informa-
tion was clearly relevant to collective bargaining and
necessary to the Union's effective exercise of its representa-
tive status. Respondent concedes this and admits its refusal
to supply the information for the same reason that it
refused to recognize and bargain with the Union. As I have
found that the Union was duly certified and that
Respondent was obligated to recognize and bargain with it,
it follows that Respondent was obligated to supply the
Union with the requested information and its refusal to do
so was violative of Section 8(aX5) and (1) of the Act.
the assertion ofjunsdiction
a See Pittsburgh Plate Glass Company v N.LR.B, 313 U.S. 146, 162
(1941)
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Not content with two findings that Respondent violated
Section 8(a)(5) and (1) of the Act, General Counsel alleged
a third way in which Respondent refused to bargain. Thus,
according to Union Representative Ervin Huebner, on or
about April 23, he telephoned Respondent's attorney,
James Ruyle, in Portland, Oregon, and told him heatedly
that he was tired of getting the runaround from the plant
manager and the plant receptionist in Mattoon, Illinois,
and he wanted to know whether Ruyle or Plant Manager
Glen Hamner or some other company representative was
going to enter into negotiations. Ruyle replied that neither
he nor the Company would meet with the Union's
negotiating committee at that time, but that another lawyer
from his firm could meet with Hamner or some other
union representative if the Union would guarantee that
there would not be a wage ' increase , otherwise the
Company would not meet for fear of jeopardizing its
position with respect to the objections and the request for
review. This testimony of Hamner's was not denied, and
General Counsel contends it supports an additional 8(a)(5)
finding. I do not agree.
Although the complaint alleges that Respondent violated
Section 8(a)(5) and (1) by the foregoing conduct, the
complaint failed to give notice to Respondent that the
violation was attributed to Respondent's attorney. The first
notice Respondent's attorney had of his involvement in the
litigation was when Huebner testified. Attorney Ruyle
made timely objection because to meet Huebner's testimo-
ny he would either have to testify in violation of the
Canons of Legal Ethics or withdraw from the case and
have another lawyer from Portland, Oregon represent
Respondent. The second alternative was clearly not
practical and attorney Ruyle chose to leave Huebner's
testimony undenied.
In my judgment, under these circumstances, plus the fact
that the incident is clearly trivia which adds nothing to the
case , and is of dubious merit (General Motors Acceptance
Corporation, 196 NLRB 137, is so different factually that it
does not support General Counsel's position), I shall
recommend that the allegation be dismissed.
B. The Alleged Interference, Restraint, and
Coercion
1. The April 18 incident
On April 17, Huebner went to the plant to meet Plant
Manager Hamner face to face and to request negotiations.
He was first told that Hamner was not at the plant but
remained there till the shifts changed and was advised by
three employees who were members of the Union's
negotiating committee that Hamner was indeed in the
plant . In view of this information Huebner presented
himself to the plant receptionist again and after a few
minutes Hamner appeared to talk to him and the
negotiating committee . Huebner told Hamner that his
purpose in being there was to request bargaining and
Hamner 's reply was to accuse Huebner of engaging in
illegal conduct by parking his car on company property
and talking to production employees on company proper-
ty. Hamner asserted that Huebner could be arrested for
this and Huebner replied it was possible Hamner could
have him arrested, but if that happened, as he was elected
representative of the people in the plant, they would
probably be right out on the street with him. Hamner
replied, "Don't threaten me with a strike." Huebner
disclaimed any threat of a strike and said what they
wanted to do was enter into negotiations. According to
Huebner, Hamner said "if you shut us down it is only
going to take us a matter of time. I would like to have my
work done in other plants. It won't take me that long to
have my work taken care of."
Employee and negotiating committee member James
Abernathy also testified about the incident of April 17 and
he confirmed Hamner's warning to Huebner that he was
subject to arrest for trespassing and Hamner's reply that all
the men would walk out with him. According to Aberna-
thy, Hamner replied to this by saying "if we went on strike
he would have the matter taken care of within 24 hours,
that the men would only be hurting themselves and the
person that would be receiving good paychecks and these
men would have no income at all, not a bit."
William J. Moomaw4 also testified about the incident,
confirming Hamner's warning about an arrest and Hueb-
ner's reply about the men walking out. According to
Moomaw, Hamner's comment was that he could probably
get his work done in the other plants.
The conversation of April 17 had concluded with a
promise by Hamner to get in touch with Respondent's
attorney and to notify Huebner about the start of
negotiations. On the following day, Moomaw was called to
Hamner's office and Hamner told him he had been unable
to talk to his people in Portland to set a date for
negotiations. According to Moomaw, Hamner remarked
that if they kept having a lot of union trouble they might
get the work done someplace else. He said that there were
two companies interested in buying the building.
Although the complaint alleges that Hamner threatened
an employee with plant closure on April 17, it appears that
the allegation is addressed to Hamner's conversation with
Moomaw on April 18 and not to Hamner's remarks on
April 17. As I construe Hamner's remarks on April 17, they
were not unlawful because Hamner merely was advising
the Union that if the employees went on strike, Respon-
dent would get its work done elsewhere as it had a right to
do.
The remarks attributed to Hamner on April 18 by
Moomaw are somewhat ambiguous, but arguably they
could be construed as a threat of plant closure because
employees have elected to be represented by a union for
purposes of collective bargaining. Whether such a con-
struction of the remarks would be warranted need not be
decided, because I do not credit Moomaw's testimony that
the remarks were made. Hamner denied making the
remarks and I credit him. Moomaw had a very poor
recollection of what was said, remembering only snatches
of conversations and pleading a lack of recollection about
all matters which he felt might reflect adversely on him. In
my judgment, his testimony was not deserving of credence,
and I shall recommend dismissal of this allegation.
4 Moomaw's name is incorrectly spelled in the record
TUBE-LOK PRODUCTS
2. The May 4 incident
The complaint alleges that on or about May 5, Plant
Superintendent Starwalt interrogated an employee about a
meeting with a union representative and threatened plant
closure by telling an employee, Respondent's plant would
relocate to avoid unionization. Those allegations are based
on the testimony of Moomaw.
Plant Superintendent Starwalt admitted that on May 4
he telephoned Moomaw and asked him about a meeting,
but he denied making any mention of plant relocation.
According to Starwalt, he called Moomaw to find out what
had occurred at a meeting between Moomaw and Board
agents investigating the charge in the instant case;
however, he did so only because a few days earlier
Moomaw had approached him and Hamner and volun-
teered the information that he was to meet with a Board
agent and offered to provide them with information about
the meeting. They accepted the offer and when Starwalt
called Moomaw it was to obtain the promised information.
In so doing, Respondent displayed an inordinate curiosity
about the Board's investigation, but that curiosity had been
whetted by Moomaw and the question presented is
whether any employee was interfered with, restrained, or
coerced in the exercise of Section 7 rights by Respondent's
conduct. I fail to see how Starwalt's inquiry about the
meeting could have any tendency to interfere with, coerce,
or restrain Moomaw in view of Moomaw's offer of
information. Accordingly, I shall recommend dismissal of
the allegation of interrogation. As to the allegation of a
threat of plant relocation, I shall recommend dismissal
because I credit Starwalt's denial that he made any threat.
3. The April 23 letter
On April 23, Respondent mailed a letter to its employees
in which it explained its position with regard to bargaining
with the Union. The complaint alleges that three state-
ments in the letter were violative of Section 8(a)(1) of the
Act.
(1) After setting forth its objections to the election and
the Board's refusal either to set the election aside or direct
a hearing, Respondent stated, "With the NLRB refusal to
conduct a fair election we are [in] a period of a standstill as
far as the Union is concerned. We will, of course, continue
to pursue whatever legal avenues are available to obtain a
new election for you."
General Counsel contends that statement was tanta-
mount to a statement that Respondent would refuse to
recognize and bargain with the Union in order to test the
validity of the certification and that such a statement
violates Section 8(a)(1) of the Act. In support of this
contention General Counsel cites The May Department
Stores Company, 191 NLRB 928, where the Board,
Chairman Miller dissenting, held that a statement by an
employer to its employees that it would refuse to recognize
and bargain with a certified union in order to test the
validity of a certification violated Section 8(a)(1) of the
Act.
In my judgment, the statement of Respondent was too
ambiguous to warrant a finding that it was an announce-
ment to employees that Respondent was refusing to
669
recognize the Union. What does " we are at a period of a
standstill" mean? As a matter of fact, Respondent was
refusing to recognize the Union to test the certification, but
the issue is not what it was doing in that regard; rather, the
issue is what did it tell its employees. As it did not say it
was going to refuse to bargain and thereby commit an
unfair labor practice , and, as the statement it made
contained no threat of reprisal or promise of benefit, I find
that it was not violative of Section 8(a)(1) of the Act.
(2) The letter also contained the following statement,
"Frankly, we cannot believe that a majority of you wish to
commit yourselves to the obligations of union representa-
tion and the uncertainty of contract bargaining with
nothing to gain therefrom." General Counsel contends this
statement interfered with, restrained, and coerced employ-
ees because it impressed upon them the futility of selecting
a union as their collective-bargaining representative.
Respondent denies that the letter said anything to the
effect that collective bargaining would be futile, but the
above-quoted portion of the letter lends itself to no other
construction . As a preelection statement, the interference
with employees ' Section 7 rights that inheres to a statement
of the futility of selecting a collective-bargaining represent-
ative is readily apparent. Forewarned about the futility of
selecting a collective-bargaining representative, employees
may very well be dissuaded from exercising their Section 7
rights. In a postelection context, they have exercised their
right of selection and it is less apparent how a statement
that it was exercised in futility can interfere with that right.
But the employees' Section 7 rights are not exhausted by a
vote for union representation. Employees have the right to
lend support and adhere to the Union they had selected.
Their willingness to do so is interfered with when they are
told they have nothing to gain by doing so. Moreover, in
this case the postelection warning of futility was part of a
more complete statement to employees that the election
was invalid and that Respondent was seeking a new
election . Prospectively , therefore , the statement will oper-
ate to discourage them from again voting for union
representation because of the predicted futility of making
such a choice. For these reasons , the statement must be
deemed unlawful interference with the right of employees
to select a representative for purposes of collective
bargaining.
(3) The third statement in the letter alleged to be
unlawful is the following : "Our pension plan would also
have been implemented on that date as proposed except
for the uncertainties of prospective bargaining demands."
According to General Counsel, this statement was an
attempt to undermine the Union's support and was
violative of Section 8(a)(1) as a threat of loss of benefits. In
my judgment, the statement was more than a threat of loss
of benefits . It was a clear statement that a particular
benefit would have been given to the employees (that is,
implemented) but that it was being withheld from them
because they had selected a bargaining representative. The
coercive thrust of such a statement even in isolation is
readily apparent, but even more so when one notes that it
follows a statement that nothing is to be gained by
collective bargaining and a reminder that on January 1, a
23-cent per hour wage increase had been put into effect. I
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find that the statement was violative of Section 8(a)(1) of
the Act.
C. The Alleged 8(a)(3) Conduct
The complaint alleges that Respondent refused to
implement the pension plan in order to discourage union
activities on the part of its employees and thereby violated
Section 8(a)(1) of the Act.
If I understand Respondent's position correctly, it had
not adopted a pension plan, or decided to institute a
pension plan at the plant herein prior to the election;
rather all Respondent had done was consider the idea of a
pension plan and study various types of plans. However,
this study was abandoned after the election, not because
the employees had selected the Union to represent them,
but because, as stated in Respondent's brief, ". . . as is
well known, drafting and governmental approval of a
pension plan is a complex procedure, not logically to be
pursued when, with the prospect of collective bargaining, it
can be assumed that the energy thus expended will have
been in vain."
Respondent's arguments are not persuasive. In the first
place, they require that I overlook the anomaly of the
assertion that pension plan studies were dropped because
of the prospects of collective bargaining when contempora-
neously Respondent was refusing to recognize and bargain
with the Union on the ground the certification was invalid.
If it was invalid, there were no prospects of collective
bargaining to deter implementation of the pension plan.
In the second place, they require that I accept the
representations of Respondent, and Hamper's testimony,
that the pension plan as a condition of employment was
merely in the study stage as a possible benefit to be granted
employees. I cannot accept such representations because
they are contrary to the clear statement in the April 23
letter that "Our pension plan would also have been
implemented on that date as proposed." In short, accord-
ing to Respondent's own statement, its consideration of a
pension plan had proceeded further than the study stage
and it had in fact adopted a pension plan, referred to in the
letter as "our" pension plan. Thus, it had made a pension
plan a condition of employment.5
Respondent adverts to the nature of pension plans and
the fact that most contain no immediate benefits. It argues
from this that the effect of its withholding of a pension
plan on employees was nil. I do not agree. The absence of
immediate benefits may go to the remedy to be provided
for Respondent's unlawful failure to implement a pension
plan, but not to the effect of its failure. Had Respondent
implemented a pension plan as it proposed to do, the
employees would have had that plan as a condition of
employment when the Union, as their collective-bargaining
representative, entered into negotiations. While Respon-
dent could have proposed in negotiations a cancellation of
5 As the court stated in Armstrong Cork Company v N.LR B, 211 F.2d
843 (C A. 5), the definition of "condition of employment " includes not only
what the employer has already granted , but also what he "proposes to
grant."
6 In that case, the withholding of the wage increase was also found to be
violative of Sec . 8(a)(5), although the complaint did not , as here , allege an
8(a)(5) violation in that respect An 8(a)(5) finding would also be
the plan, the Union would have been in a better bargaining
position than if it had to propose the very adoption of a
plan. While, on the one hand, an employer is not required
to bargain upward and may seek to bargain away benefits,
so long as he bargains in good faith, on the other hand, a
union is not required to bargain from scratch . It is entitled
to the maintenance of existing conditions until it agrees
otherwise or a bona fide impasse has been reached. By
failing to implement the pension plan as proposed,
Respondent effected a change in existing conditions to the
detriment of the employees.
Respondent argues its decision was motivated by sound
business considerations and that there is no evidence that it
was unlawfully motivated. I do not agree. According to
employee Abernathy, in the week preceding the election,
Hamner - and Starwalt held meetings of groups of employ-
ees in which they described existing benefits and informed
employees they were going to better the pension plan.
Starwalt did not testify on this subject and while Hamner
did, he did not specifically address his testimony to
Abernathy's averments. He did testify that there was no
pension plan in effect at the Mattoon plant thereby
indirectly contradicting Abernathy's testimony that they
were going to better the pension plan, but he said nothing
about the group meetings . I credit Abernathy, who either
misunderstood what was promised or was imprecise in his
testimony, and I construe his testimony as a promise by
Respondent to put a pension plan into effect. According to
Abernathy, the promise was made "if the Union was not
voted in ." Such a statement indicates clearly Respondent's
unlawful motive in refusing to implement its decision to
put a pension plan into effect.
But even apart from the foregoing, a finding of unlawful
motivation is warranted on the basis of Respondent's own
admission that the pension plan was not implemented
because of the uncertainties of prospective bargaining. In
United Aircraft Corporation, Hamilton Standard Division
(Boron Filament Plant), 199 NLRB 658, the employer
withheld a promised wage increase because in the interval
between the promise and the date it was to be effective the
employees had selected a union to represent them for
purposes of collective bargaining and the employer
anticipated that wages would be part of any package it
would be asked to agree to in collective bargaining. The
Board found that the withholding of a wage increase for
such a reason was unlawful conduct violative of Section
8(a)(3) and (1) of the Act .6 I find likewise.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section II,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
permissible here because Respondent by withholding implementation of the
pension plan acted unilaterally in" derogation of the Union's right to be
notified and consulted . However , an additional 8(a)(5) finding would add
nothing to the case. At the heart of the case is the validity of the
certification, and once that issue has been resolved there is no reason to
believe Respondent will act unilaterally.
TUBE-LOK PRODUCTS
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1), (3), and (5)
of the Act, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
As to a pension plan, I shall recommend that Respon-
dent implement the pension plan it had proposed to put
into effect and which it withheld because the employees
selected the Union as their representative for purposes of
collective bargaining.
As to Respondent's refusal to honor the certification and
to recognize and bargain with the Union, in order to insure
that the employees in the appropriate unit will be accorded
the services of their selected bargaining agent for the
period provided by law, I shall recommend that the initial
period of certification be construed as beginning on the
date Respondent commences to bargain in good faith with
the Union as the recognized bargaining representative in
the appropriate unit . See Mar-Jac Poultry Company, Inc.,
136 NLRB 785; Commerce Company d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5, 1964),
cert. denied 379 U.S. 817 (1964); Burnett Construction
Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A.
10, 1965).
CONCLUSIONS OF LAW
1. Tube-Lok Products, Eastern Division of Portland
Wire & Iron Works, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Shopmen's Local Union No. 518 of the International
Association of Bridge, Structural and Ornamental Iron-
workers, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees em-
ployed by Respondent at its Mattoon, Illinois, facility,
excluding office clerical employees, professional employ-
ees, watchmen, guards. and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. Since February 12, 1973, the above-named labor
organization has been and now is the certified and
exclusive representative of all employees in the aforesaid
appropriate unit for the purpose of collective bargaining
within the meaning of Section 9(a) of the Act.
5. By refusing since on or about February 12, 1973, and
at all times thereafter, to bargain collectively with the
above-named labor organization as the exclusive bargain-
ing representative of all its employees in the appropriate
unit, and by refusing on or about February 15, 1973, and
thereafter to supply the Union with information relevant to
and necessary for purposes of collective bargaining,
r In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
671
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Sections 8 (a)(5) and (1)
and 2(6) and (7) of the Act.
6. By telling employees that it would be futile to select
a representative for purposes of collective bargaining and
that it would not implement a pension plan as proposed
because the employees had selected the Union as their
representative for purposes of collective bargaining, Re-
spondent has engaged in and is engaging in unfair labor
practices within the meaning of Sections 8(a)(1) and 2(6)
and (7) of the Act.
7. By failing to implement a pension plan as proposed
because employees had selected the above -named Union
as a representative for purposes of collective bargaining,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Sections 8(a)(3) and (1)
and 2(6) and (7) of the Act.
Upon the foregoing findings of fact , conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER?
Respondent, Tube-Lok Products, Eastern Division of
Portland Wire & Iron Works , its officers, agents, succes-
sors, and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning rates of
pay, wages , hours , and other terms and conditions of
employment with Shopmen 's Local Union No. 518 of the
International Association of Bridge, Structural and Orna-
mental Iron Workers, AFL-CIO, as the exclusive bargain-
ing representative of its employees in the following
appropriate unit:
All production and maintenance employees employed
at Respondent's Mattoon, Illinois, facility, excluding
office clerical employees, professional employees,
watchmen, guards, and supervisors as defined in the
Act.
(b) Refusing to supply the information requested by the
above-named Union on or about February 15, 1973, or any
other information requested which is relevant to and
necessary for the purposes of collective bargaining.
(c) Discouraging membership in, or activities in behalf
of, the above-named Union, or any other labor organiza-
tion of its employees, by withholding implementation of a
proposed pension plan because employees selected the
above-named Union as their representative for the purpos-
es of collective bargaining.
(d) Telling employees that collective bargaining would be
futile.
(e) Telling employees that a proposed pension plan has
been withheld because they selected the above-named
Union as their representative for the purposes of collective
bargaining.
(f) In any like or related manner interfering with,
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order and all objections thereto shall he
deemed waived for all purposes
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restraining, or coercing employees in the exercise of their
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Implement the pension plan which was withheld from
employees because they selected the Union as their
representative for purposes of collective bargaining.
(b) Upon request, bargain collectively with the above-
named Union as the exclusive representative of all the
employees in the unit described above, and, if any
understanding is reached, embody such understanding in a
signed agreement.
(c) Furnish to the above-named Union the information
requested on or about February 25, 1973.
(d) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
relevant and necessary to a determination of Respondent's
compliance with its obligation to implement a pension plan
as provided in this recommended Order.
(e) Post at its Mattoon, Illinois, facility copies of the
attached notice marked "Appendix." 8 Copies of said
notice, on forms provided by the Regional Director for
Region 14, after being duly signed by the Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and 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 Respondent to ensure
that said notices are not altered, defaced, or covered by
any other material.
Notify the said Regional Director, in writing, within 20
days from the date of this Decision, what steps Respondent
has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the allegations of the
complaint found not have been sustained by a preponder-
ance of evidence be dismissed.
8 In the event that the Board 's Order is enforced by a Judgment of a "Posted Pursuant to a Judgment of the United States Court of Appeals
United States Court of Appeals , the words in the notice reading "Posted by Enforcing an Order of the National Labor Relations Board."
Order of the National Labor Relations Board" shall be changed to read