S-B Mfg. Co.

National Labor Relations Board - Board Decisions

May 8, 1984

270 N.L.R.B. 485 (N.L.R.B. 1984)

S-B MFG. CO.
S-B Manufacturing Co., Ltd. and Local 659, Allied
Industrial Workers of America, AFL-CIO.
Cases 30-CA-6403, 30-CA-6403-2, and 30-
CA-6863
8 May 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 20 December 1982 Administrative Law
Judge Hubert E. Lott issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel and the Charging
Party filed limited exceptions and supporting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions2 only to the extent consistent with this
Decision and Order.3
t The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 In adopting the judge's conclusion that the Respondent violated Sec.
8(a)(5) and (1) of the Act by negotiating with the employee-management
committee instead of the Union over bargainable issues, we note that al-
though the Respondent's plant manager, Port, testified that an employee
who had once served as the Union's sergeant-at-arms was at one time a
member of the committee, there is insufficient record evidence to support
a finding that the Union had an official representative on the committee
or that it ever had knowledge of the committee's existence. In fact, Port
admitted that the Union's chief negotiator, Praxel, had never been in-
formed of the committee's existence. The Respondent argues that the
Board's decision in Citizen Bank of Willmar, 245 NLRB 389 (1979), is ap-
plicable to the facts herein. In that case the Board found that a union that
failed to exercise its right to demand bargaining over a unilateral change
in working conditions could not later effectively claim that the respond-
ent unlawfully refused to bargain. However, we find Citizen Bank of
Willmar to be inapposite because, unlike the situation in this case, two
union officers were actually present at the meeting in which the changes
were announced and there was no contention that the union had no
knowledge of the change in policy.
Member Hunter notes that the General Counsel's unfair labor practice
allegations concerning the employee-management committee were limited
to the contentions that the Respondent used these meetings in an effort to
bypass and undermine the Union. Since the record herein amply supports
the finding that the Respondent engaged in bad-faith bargaining, Member
Hunter finds it unnecessary to consider the additional allegations con-
cerning the employee-management committee. In addition, Member
Hunter agrees with his colleagues that the Respondent's response to the
Union's economic demands was equivalent to a claim of financial inability
to pay. Although the Union is clearly entitled to some financial informa-
tion, the Union's requests, inter alia, for the Respondent's tax returns,
audit reports, and details on management salaries and benefits appear to
be overly broad. In such circumstances, Member Hunter would leave the
final determination of what constitutes "relevant information" to the
compliance stage of this proceeding.
3 We shall issue an Order in lieu of the judge's recommended Order to
correct his inadvertent failure to provide for the reinstatement of all
270 NLRB No. 88
ORDER
The National Labor Relations Board orders that
the Respondent, S-B Manufacturing Co., Ltd.,
Wauwatosa, Wisconsin, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Discouraging membership in Local 659,
Allied Industrial Workers of America, AFL-CIO,
or any other labor organization, by discriminatorily
disciplining or otherwise discriminating against em-
ployees in any manner with regard to their hire
and tenure of employment or any term or condi-
tion of employment.
(b) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with the Union as the
exclusive bargaining representative of its employees
in the following appropriate unit:
All production and maintenance employees of
S-B Manufacturing Co., Ltd., at the Wauwa-
tosa, Wisconsin location, but excluding office
employees, professional employees, guards,
temporary summer/seasonal employees, fore-
men, assistant foremen and other supervisors
as defined in the Act, as amended.
(c) Unilaterally and without notice to or bargain-
ing with the Union, as the exclusive representative
of the employees in the unit described above, ter-
minating employees' health and other fringe bene-
fits.
(d) Refusing to bargain collectively with the
Union by negotiating directly with employees in
the above-described unit about terms and condi-
tions of employment without affording the Union
an opportunity to be present; by prohibiting or
frustrating communication between the Union and
unit employees; and by refusing to furnish the
Union with information relevant to and necessary
for the effective performance of its role as collec-
tive-bargaining representative.
(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act.
(a) Expunge from its files any reference to the
final warning given to John Tews and notify him
in writing that this has been done and that evi-
dence of this unlawful discipline will not be used as
a basis for future personnel actions against him.
health insurance and other fringe benefits to employee Anna Turtenwald
and other employees, and to correct certain inadvertent errors therein.
485
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) On request, bargain collectively with Local
659, Allied Industrial Workers of America, AFL-
CIO, as the exclusive representative of all employ-
ees in the appropriate unit described above with re-
spect to rates of pay, wages, hours, and other terms
and conditions of employment.
(c) Reinstate the health insurance and other
fringe benefits for all employees in the above-de-
scribed unit which were terminated by the Re-
spondent I October 1981.
(d) Make whole the employees in the above-de-
scribed unit in the manner set forth in the section
of the administrative law judge's decision entitled
"The Remedy," as amended, for the Respondent's
failure to pay health insurance and other fringe
benefits as required by its contract with the Union.
(e) Provide the Union with the information it re-
quested 31 March 1981 regarding all finalized job
standards, production quotas, employee pay rates,
and the names and addresses of unit employes re-
quested by the Union 21 May 1981.
(f) Provide the Union with the economic infor-
mation it requested 28 May 1981, including Federal
tax returns and audit reports for the last 3 years
along with balance sheets and income statements;
detailed supporting schedules of costs of goods
sold, including breakdowns of labor costs and su-
pervisory and other nonlabor wages and benefits;
and interim financial statements for the last period
for which the books were closed together with the
same data for a comparable period the preceding
year.
(g) Post at its plant in Wauwatosa, Wisconsin,
copies of the attached notice marked "Appendix." 4
Copies of the notice, on forms provided by the Re-
gional Director for Region 30, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in co';spicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(h) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
i If this Order is enforced by a Jtidgllenlit of a; United States C(ourt tof
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board,"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discourage membership in Local
659, Allied Industrial Workers of America, AFL-
CIO, or any other labor organization, by discrimin-
atorily disciplining or otherwise discriminating
against employees in any manner with regard to
their hire and tenure of employment or any term or
condition of employment.
WE WILL NOT refuse to bargain collectively con-
cerning rates of pay, wages, hours, and other terms
and conditions of employment with the Union as
the exclusive bargaining representative of our em-
ployees in the following appropriate unit:
All production and maintenance employees of
S-B Manufacturing Co., Ltd., at the Wauwa-
tosa, Wisconsin location, but excluding office
employees, professional employees, guards,
temporary summer/seasonal employees, fore-
men, assistant foremen and other supervisors
as defined in the Act, as amended.
WE WILL NOT unilaterally and without notice to
or bargaining with the Union, as the exclusive rep-
resentative in the unit described above, terminate
our employees' health and other fringe benefits.
WE WILL NOT refuse to bargain collectively with
the Union by negotiating directly with employees
in the above-described unit about terms and condi-
tions of employment without affording the Union
an opportunity to be present; by prohibiting or
frustrating communications between the Union and
unit employees; and by refusing to furnish the
Union with information relevant to and necessary
for the effective performance of its role as collec-
tive-bargaining representative.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL expunge from our files any references
to the final warning given to John Tews and notify
him in writing that this has been done and that evi-
dence of this unlawful discipline will not be used as
a basis for future personnel actions against him.
WE WILL, on request, bargain collectively with
Local 659, Allied Industrial Workers of America,
AFL-CIO, as the exclusive representative of all
486
S-B MFG. CO.
employees in the appropriate unit described above
with respect to rates of pay, wages, hours, and
other terms and conditions of employment.
WE WILL reinstate the health insurance and
other fringe benefits for all employees in the above-
described unit which were terminated by us 1 Oc-
tober 1981.
WE WILL make whole the employees in the
above-described unit for our failure to pay health
insurance and other fringe benefits as required by
our contract with the Union.
WE WILL provide the Union with the informa-
tion it requested 31 March 1981 regarding all final-
ized job standards, production quotas, employee
pay rates, and the names and addresses of unit em-
ployees requested by the Union 21 May 1981.
WE WILL provide the Union with the economic
information it requested 28 May 1981, including
Federal tax returns and audit reports for the last 3
years along with balance sheets and income state-
ments; detailed supporting schedules of costs of
goods sold, including breakdowns of labor costs
and supervisory and other nonlabor wages and
benefits; and interim financial statements for the
last period for which the books were closed to-
gether with the same data for a comparable period
the preceding year.
S-B MANUFACTURING CO., LTD.
DECISION
STATEMENT OF THE CASE
HUBERT E. LOTT, Administrative Law Judge. The
consolidated cases were heard at Milwaukee, Wisconsin,
on March 31 and April I and 2, 1982. The charge in
Case 30-CA-6403 was filed by Local 659, Allied Indus-
trial Workers of America, AFL-CIO (the Union),
against S-B Manufacturing Co., Ltd. (Respondent), on
March 26, 1981.1 The charge in Case 30-CA-6403-2 was
filed by the Union on May 4 and a first amended charge
in the same case was filed on June 5. A consolidated
complaint issued on these charges on July 22. The
charge in Case 30-CA-6863 was filed by the Union on
December 7 and a consolidated complaint in all the
above cases issued on March 15, 1982. The issues in the
above cases are whether Respondent engaged in viola-
tions of Section 8(a)(1), (3), and (5) of the Act by issuing
a warning to John Tews and unilaterally terminating the
benefits of employee Anna Turtenwald, and whether or
not Respondent violated Section 8(a)(1) and (5) of the
Act by: (a) unilaterally changing employees' hours of
work, (b) refusing to furnish the Union with information
during contract negotiations, (c) failing to give its nego-
tiators sufficient authority to engage in meaningful col-
lective bargaining, (d) unilaterally changing employee
wage rates, (e) attempting to prevent the Union from
I All dates herein refer to 1981 unless otherwise indicated
communicating with its employees concerning the
progress of negotiations, (f) establishing an employee-
management committee to undermine the Union's status
as representative of its employees, and (g) engaging in
"surface bargaining" or overall bad-faith bargaining. Re-
spondent's answers to the consolidated complaints, duly
filed, denies the commission of any unfair labor practices.
The parties were afforded an opportunity to be heard,
to call, to examine and cross-examine witnesses, and to
introduce relevant evidence. Since the close of the hear-
ing, briefs have been received from the General Counsel
and from counsel for the Charging Party and Respond-
ent.
On the entire record and based on my observation of
the witnesses, and consideration of the briefs submitted, I
make the following
FINDINGS OF FACT
1. JURISDICTION
The Company, a partnership, with its principal place
of business located in Wauwatosa, Wisconsin, is engaged
in the manufacture and nonretail sale and distribution of
hardware products. It annually sells and ships goods
valued in excess of $50,000 directly to points located out-
side the State of Wisconsin. The Company admits, and I
find, that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. Re-
spondent further admits, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
1. UNFAIR LABOR PRACTICES
A. Background
The Union was certified as representative for Re-
spondent's production and maintenance employees in
April 1974. The parties signed their initial contract in
June 1975. Thereafter, the parties signed a series of 1-
year agreements, the last of which was the 1980-1981
agreement whose duration ran from May 1, 1980
through April 30, but which would continue in effect
until the parties reached a new agreement. The 1980-
1981 agreement was not signed until April 10 for two
reasons. The Union refused to sign it because the con-
tract for the first time did not incorporate the annual
wage increase into the minimum wage scale. Respondent
refused to sign unless the Union waived the contract
provision requiring Respondent to furnish copies of the
agreement to its employees. The Union eventually con-
ceded on both issues and the agreement was signed on
the above date. The parties stipulated that the 1980-1981
agreement is still in effect during all times material
herein.
Respondent's employee handbook which is distributed
to all employees states the following under the section
entitled "Position Toward Union Affiliation":
Union membership is not a requirement at our Com-
pany. We try to see that every employee receives
fair consideration and treatment regardless of mem-
487
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bership or nonmembership in the union. Most (more
than 70 percent) of the employees in the United
States are nonunion. So are most of the companies.
Many of the most successful companies are non-
union (IBM, Eastman-Kodak, Texas Instruments,
etc.). We do not believe that a union contributes to
the success of a company, or to the security of the
employees. Where there are unions, there are
strikes; where there are no unions, there are no
strikes. We are in favor of job security and we are
against strikes.
Our labor agreement with the union specifically
states: "Employees do not have to belong to the
union or pay a fee to the union in order to work at
the Company."
On March 16, the parties began negotiations for a new
collective-bargaining agreement; 13 negotiating sessions
took place at Respondent's plant on the following dates:
March 16; April 10, 21, 23, 24, and 28; May 1, 8, and 18;
June 1 and 15; September 18; and December 16.
The following individuals attended the bargaining ses-
sions for Respondent: attorney Barton Peck, Plant Man-
ager George Port, and Assistant Personnel Manager
Philip Kleba. The Union's negotiating committee consist-
ed of union business representative Fred Praxel, Local
president John Tews, Local vice president Scott Ellis,
and committee member Ron Bard.
B. The John Tews Warning
On April 14, John Tews made a written request that
Respondent post both parties' negotiating proposals on
the union bulletin board. That same day Respondent, in
writing, refused the Union's request stating that they had
never done this in the past and that their attorney ad-
vised that they were not required to do it. In subsequent
negotiating sessions, Respondent's spokesman, Barton
Peck, told the union negotiating committee that he had
refused the Union's request to post the parties' proposals
on the bulletin board because, without adequate explana-
tion, the employees would not understand the import of
the proposals. The Union's spokesman asked Peck if he
were implying that the employees were not smart
enough to understand the proposals. According to some
witnesses, Peck stated that he was not suggesting or im-
plying that that was the case. According to other (union)
witnesses, Peck asserted that the employees were not
smart enough to understand the proposals without fur-
ther explanation.
On May 30, John Tews mailed a letter to unit employ-
ees with copies of the parties' proposals attached. In the
letter Tews reported on the progress of negotiations and
concluded with a plea for more support from the rank-
and-file employees. Some excerpts from the letter are as
follows:
Early in April, I asked the Company to post both
the Company's and the Union's proposed changes
for the 1981-1982 contract.
They refused.
Their feeling is, that you are not smart enough to
understand them. I don't agree.
I feel everyone at S-B is intelligent enough to un-
derstand what these proposals mean. This is why I
took it upon myself to give you the opportunity to
review them. The Company wants to make a lot of
changes and very few, if any, will be any benefit to
the employees of S-B and their families. It doesn't
take a genius to figure that out.
We are not making much progress in our attempt
to negotiate a fair contract. The Company wants to
take a lot away and give nothing. We have one big
obstacle, not enough support ....
The Company doesn't want the Union. They'll
do anything they can to get rid of it. Don't help
them! . . .
On June 4 Tews received a "final warning" from Re-
spondent for violating Rule 8 of the Company's rules
which prohibits the publishing of false, vicious, or mali-
cious statements concerning any employee, or member of
supervision, or the Company. Respondent also cited
Tews for violating article 3 of the collective-bargaining
agreement which requires employees to be loyal and to
protect and promote the Company's best interests. Re-
spondent's position with respect to the warning is that
Tews made a false statement in his letter to the employ-
ees when he asserted that Respondent took the position
that they did not want to post the parties' proposals be-
cause the employees were not smart enough to under-
stand them. The final warning issued to Tews also states
that, if he commits another violation within 18 months,
he will be subject to discharge.
Analysis and Conclusions
The General Counsel argues that Tews was engaged
in protected union activity when he issued the letter with
proposals to the unit employees and that the letter con-
tains no language which would remove the communica-
tion from the Act's protection. Respondent argues that
the Union under article 3 of the collective-bargaining
agreement waived the right of employees to make false
statements which demean the Company.
After reviewing the cases covering this issue, I con-
clude that Tews' remarks dealt exclusively with protect-
ed union activity and that they do not rise to the level
which would remove them from the protection of the
Act. I find that, at best, there was a difference of opinion
over the interpretation of Respondent's reason for not
wanting the proposals posted. The Board has long held
that offensive, vulgar, defamatory, or opprobrious re-
marks uttered during the course of protected activities
will not remove activities from the Act's protection
unless they are so flagrant, violent, or extreme as to
render the individual unfit for further service. Dreis &
Krump Mfg., Inc., 221 NLRB 309 (1975). The Board has
also held that misstatements forfeit protection of the stat-
ute only when deliberately or maliciously false. I find the
statements made by Tews who is the local union presi-
dent and a member of the negotiating committee to be
nothing more than the Union's position or opinion with
respect to Respondent's bargaining tactics. His state-
ments, when viewed in the context in which they were
488
S-B MFG. CO.
made, in my opinion do not even rise to the level of or-
dinary campaign propaganda which employees encounter
in Board-conducted elections.
Under these circumstances, I find that in disciplining
Tews for issuing his letter Respondent has violated Sec-
tion 8(a)(1) and (3) of the Act. The General Counsel fur-
ther alleges that Respondent's action also violated Sec-
tion 8(a)(1) and (5) of the Act by inhibiting the Union's
attempts to communicate with the unit employees. This
issue will be addressed in another portion of the decision.
C. The Unilateral Termination of Benefits
This allegation relates to the unilateral termination of
benefits for Anna Turtenwald and is covered by several
paragraphs in the complaint: allegations 8(b), 9(b),
Il(b)(v), 12, and 13.
The parties stipulated that Turtenwald has been em-
ployed by Respondent since 1973 as an assembler. Be-
tween approximately 1976 and 1978, she was a member
of the Union's bargaining committee. For approximately
1-1/2 years, between June 1979 and January 20, she was
local union president. The parties further stipulated that
Turtenwald has been off work as a result of an industri-
al-related injury since January 20 and has been receiving
workmen's compensation during this time. On September
14 Respondent notified Turtenwald that it would not
provide health insurance or other fringe benefits for her
after the end of September. Pursuant to this notification,
Turtenwald's benefits were terminated on October 1.
The parties further stipulated that Respondent had not
previously terminated benefits for any employee on
workmen's compensation and that its policy relating to
employees in such status applies to all employees of Re-
spondent. The parties further stipulated that Turten-
wald's benefits were terminated without notifying the
Union. Respondent's witness, Philip Kleba, admitted in
his testimony that there was nothing in the contract that
covered employees who were absent due to an industri-
al-related injury such as Anna Turtenwald's.
Analysis and Conclusions
Respondent's admissions clearly give rise to a violation
of Section 8(a)(l) and (5) of the Act. Respondent admit-
ted that it terminated the benefits (Blue Cross-Blue
Shield, dental, life insurance, sickness and accident, and
long-term disability) of Anna Turtenwald without notify-
ing or discussing its action with the Union. Further, Re-
spondent admitted that the collective-bargaining agree-
ment has no provision covering employees who are on
leave of absence due to a work-related injury and that
the decision relating to Turtenwald would apply in the
future to all employees in a similar situation.
The benefits described above are clearly subjects of
collective bargaining and their unilateral termination by
Respondent violates Section 8(a)(l) and (5) of the Act as
alleged in paragraphs 8(b), 9(b), Il(b)(v), and 13. How-
ever, I find that the General Counsel has not met his
burden of proving that Respondent terminated Turten-
wald's benefits because of her prior union activities as al-
leged in complaint paragraphs 8(c) and 12. The unrefut-
ed evidence establishes that Respondent provided bene-
fits for Turtenwald for 8 months after her injury (and
her union activities). Further, Respondent intended to
apply its new policy to all employees. Under these cir-
cumstances, I will dismiss the 8(a)(l) and (3) portion of
this allegation which is contained in paragraphs 8(c) and
12 of the complaint.
D. Respondent's Unilateral Change in Hours of Work
It was stipulated by the parties that on February 26
Respondent reduced the hours for all bargaining unit em-
ployees from 40 to 32 hours per week. Respondent's uni-
lateral action was not alleged by the General Counsel as.
a violation of the Act. The Union wrote Respondent a
letter concerning the February 26 reduction in hours
which reads as follows:
Please be informed that the Union, in order to
avoid a layoff, has decided not to protest the Com-
pany's decision to work a 4-day, 32-hour week.
However, this decision applies to this occurrence
only and such action may be subject to the griev-
ance procedure in the future. The Union does not
condone the Company making a unilateral change
in the contract. We feel the Company should confer
with the Union as stated in Article II, Section 1 of
the contract. It must be understood that acceptance
of the 4-day week on this occasion does not create a
practice nor set a precedent. This action is taken by
the Union without prejudice.
Respondent replied to the Union's letter on March 6
wherein it stated in pertinent part:
In order to avoid any misunderstanding, consist-
ent with Article 22 of the current labor agreement,
the Company has specifically reserved the exclusive
right to "lay off" or to determine "the number of
hours and the Schedules of employment" for em-
ployees within the bargaining unit.
Within this framework, the Company had the
right to unilaterally, without consultation from the
Union, institute the new schedule of hours. Be ad-
vised, therefore, that the willingness demonstrated
by the Company to offer the Union the opportunity
to make suggestions in this regard before the Com-
pany's decision was finalized is not to be considered
an abdication of its right to unilaterally institute
changes in the number of hours worked. Conse-
quently, whether or not the Union condones the
change in the number of hours of scheduled work,
whether now or in the future, is immaterial.
The parties stipulated that on March 19 Respondent
unilaterally and without notifying the Union reduced the
hours of all bargaining unit employees from 32 to 24
hours per week. This reduction remained in effect from
March 22 to June 1. On March 26 the Union filed a
grievance over this reduction which apparently was
withdrawn after the third step. The March 19 reduction
by Respondent is alleged by the General Counsel as a
violation of Section 8(a)(l) and (5) of the Act in com-
plaint paragraphs 9(a) and I l(b)(v).
489
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Article 22 (Management Rights) of the current collec-
tive-bargaining agreement states, inter alia, "Except as
otherwise limited by a specific provision of this agree-
ment, the management of the plant and the affairs of the
Company, and the direction of working forces are vested
exclusively in the employer, including, but not limited to,
the right to . . . determine the number of employees, the
number of hours, and the schedules of employment
.... " Article 2, section 1 of the collective-bargaining
agreement states that the Company "hereby recognizes
the Union as the sole collective-bargaining agent on all
matters relating to rates of pay, wages, hours of work, or
other conditions of employment for all production and
maintenance employees .... " These provisions have
remained the same in all the collective-bargaining agree-
ments since the first agreement was signed in 1975.
Respondent's only other unilateral reduction in hours
occurred in February 1975. During contract negotiations
that year the Union made the following proposal: "The
Company may at its discretion reduce the workweek to
32 hours (for a period of 4 weeks in the aggregate per
contract year), or lay off employees as necessary." This
union proposal was rejected by Respondent and the lan-
guage in the management-rights clause stated above was
agreed on by the parties. Respondent's witness, Philip
Kleba, testified that prior to the 1980-1981 negotiations
the Union in the last 2 years proposed changes in the
management-rights clause to eliminate management's
right to reduce hours, Respondent on all occasions re-
jected the Union's proposal and the parties agreed on the
current management-rights contract language. In Febru-
ary at a grievance meeting a dispute arose over whether
or not Respondent was obligated to bargain over the re-
duction in employee hours. Fred Praxel, the Union's ne-
gotiator, asserted that if Respondent reduced employee
hours it would have to negotiate with the Union. George
Port disagreed with Praxel, stating that Respondent had
the authority under the management-rights clause of the
current collective-bargaining agreement to unilaterally
reduce employee hours. Barton Peck, Respondent's at-
torney, first agreed with Praxel's interpretation of the
contract but apparently on further consideration changed
his mind.
On March 16 the Union, in its initial proposals for
changes in the collective-bargaining agreement, offered a
management-rights clause which eliminated hours from
the exclusive control of management. The Union during
negotiations, probably in May, offered the following pro-
vision as a proposal to Respondent:
Because of lack of work the Company may reduce
hours of work to 32 hours per week [sic] for a
period of 4 weeks per calendar year. Extensions
may be made by mutual agreement. If no agreement
is reached the Company shall lay off the number of
employees it deems necessary to adjust the work
force.
During the current negotiations, Respondent rejected
both of the Union's proposals which have just been
stated above. Respondent's position throughout the cur-
rent negotiations was that it needed the same contract
language with respect to hours in the management-rights
clause as is currently in effect and has been in effect
since the first collective-bargaining agreement.
Analysis and Conclusions
The Board and the courts have held that a statutory
right can be relinquished by the union under the provi-
sions of the bargaining agreement if it elects to do so.
But such relinquishment must be in clear and unmistak-
able language. Silence in the bargaining agreement does
not meet this test. Timken Roller Bearing Co. v. NLRB,
325 F.2d 746 (6th Cir. 1963). The Board has further held
that a waiver will not be lightly inferred but must be
clearly evidenced either by the terms of the parties' col-
lective-bargaining agreement or in the nature of the prior
contract proceeding. Southern Florida Hotel Assn., 245
NLRB 561 (1979).
In the case before me Respondent relied on the lan-
guage in the management-rights clause for justification
for its unilateral action and the parties' prior bargaining
history wherein the Union has unsuccessfully attempted
to have the hours' language changed. The Union on the
other hand relies on the language in the recognition
clause in support of its position that it never relinquished
its statutory right to negotiate over changes in employee
hours. The General Counsel argues that Barton Peck's
agreement with Praxel's statement that Respondent was
obligated to bargain over a change in employee hours at
a February grievance meeting indicates that Respondent
had an obligation to bargain over a change in hours. She
further argues that a notice posted by Respondent in
1978, wherein it cited the Union's opposition to closing
the plant between Christmas and New Year's as justifica-
tion for Respondent not closing the plant, as further evi-
dence that Respondent recognized its obligation to bar-
gain over hours reduction.
The management-rights clause currently in effect ap-
pears on its face to give Respondent exclusive control
over employee hours. There is nothing unclear or un-
equivocal about the language as I read it. However, even
assuming that the language in the management-rights
clause is subject to interpretation, I find that throughout
negotiations the Union has attempted to modify, elimi-
nate, or reduce management's exclusive control over em-
ployee working hours. It has met with repeated failure,
and has consistently agreed to the language proposed by
management. There is little doubt, after reviewing the
record evidence, that the Union has attempted to have
the hours provision in the management-rights clause
changed to no avail. The parties have negotiated over
this issue for years but the clause has remained the same
from its inception.
The Union by its action and negotiating position over
the years has virtually conceded that management has
the right to unilaterally change employee hours. That is
the only explanation for its constant struggle to recover
a statutory right which it obviously feels it bargained
away and which it does not have the strength to reclaim.
The General Counsel's arguments are not persuasive in
light of the overwhelming documentary evidence to the
contrary. I do not find, for example, that the remarks of
490
S-B MFG. CO.
Barton Peck at a grievance meeting or the 1978 state-
ment of Respondent concerning holidays in any way
alters the import of the contract language when com-
bined with the history of negotiations which reveals the
true meaning of what the parties intended.
Therefore, I will dismiss complaint allegations 9(a) and
I l(b)(v) relating to the unilateral reduction in hours.
E. Failure to Furnish Information
1. Noneconomic information
The parties stipulated that, on March 31, the Union re-
quested in writing that Respondent provide information
on all finalized job standards, production quotas, and em-
ployee pay rates. On May 21 the Union requested in
writing the names and addresses of unit employees. Re-
spondent refused to furnish any of the above information.
Analysis and Conclusions
In its brief Respondent admits that the Union was enti-
tled to the information requested and further admits that
it was derelict in failing to promptly comply with the re-
quest.
After considering the stipulation of the parties and Re-
spondent's admissions in brief, I find that Respondent
violated Section 8(a)(1) and (5) of the Act by refusing to
furnish the requested information as alleged in para-
graphs 10(a) and (b) and I l(b)(ix).
2. Economic information
On May 28 the Union in writing requested financial
data from Respondent which included copies of Federal
tax returns and audit reports for the last 3 years along
with balance sheets and income statements. It also re-
quested detailed supporting schedules of costs of goods
sold, including breakdowns of labor costs and superviso-
ry and other nonlabor wages and benefits together with
selling, general and administrative expenses including de-
tails on management salaries and benefits. At the same
time it also requested interim financial statements for the
last period for which the books were closed together
with the same data for a comparable period the preced-
ing year.
John Tews testified that Barton Peck, the Company's
chief spokesman, refused the Union's request for financial
data not because they were pleading poverty but because
Donald Schulz would under no circumstances open the
books to the Union. Peck further stated that he would
give no documentation or information even if it were to
convince the employees of their situation which should
be obvious because sales were down, costs were up,
there was too much inventory, and employees were only
working 3 or 4 days per week. According to Tews, Peck
further stated that Donald Schulz feels the Company's
records are company property and their business, and
that the Company did not ask the employees for their fi-
nancial information and the Union should not ask the
Company for theirs. Tews further testified that, in May
when the Union presented its economic proposals, Peck
said he would have to discuss them with Schulz. Peck
returned and stated that the Union's proposals on holi-
days, vacation benefits, and pension were rejected be-
cause it should be obvious to the Union that the Compa-
ny was in no position to grant any of the requests. Peck
further suggested that the Union should get the employ-
ees to solicit hardware stores to buy Respondent's prod-
ucts so their business would improve. Peck further stated
that the Company was in no position to grant these items
because of its business situation, orders were down, sales
were down, there was too much inventory, and the
Company was in recession. Tews further testified that
Peck maintained throughout the negotiations that the
Company was unable to grant a wage increase because
its costs were up.
Fred Praxel testified that, when he presented the
Union's economic proposals, Barton Peck told him that
he would discuss them with Donald Schulz but that "we
[Union] should look around us because the Company
was working a short workweek." It had too much inven-
tory and costs were up. He further stated that the econo-
my was bad and that "we were making these proposals
with our eyes closed and our fingers crossed." Praxel
further testified that Respondent's proposal contained
certain "give backs," i.e., the elimination of three paid
holidays, sickness and accident insurance, and bereave-
ment pay. Peck told the union negotiating committee
that these "give backs" were necessary because labor
costs were up, general costs were up, orders were down,
and the employees were working a short workweek.
Praxel testified that he requested the financial informa-
tion in order to evaluate the reasons for the Company's
position with respect to "give backs."
Respondent's witness, Philip Kleba, testified that
Barton Peck instructed the Company's negotiating com-
mittee to be careful what they said during negotiations
so that the Company would not be accused of pleading
poverty because, if they did, they would be forced to
"open up all of our records if requested." Kleba also tes-
tified that Peck proposed certain economic "give backs"
because of increased costs, future costs, and high inven-
tory. According to Kleba, Peck further indicated that
benefits being paid presently were based on a 5-day week
but that the employees were only working a 3-day week
so that the cost of benefits was too high. Kleba then tes-
tified from his notes that, when the Federal mediator
presented the Union's demand for financial information,
Barton Peck presented the mediator with the Company's
reply which was a refusal to furnish the data requested
because the Company was not pleading poverty. Peck
told the mediator that the Company was working 3 days
a week and if the Union could not see the handwriting
on the wall the Company did not know what else to do
or say to make them understand. Peck then told the me-
diator that they were not refusing to grant a wage in-
crease because they could not give more but because
they would not give more.
Analysis and Conclusions
The testimony of Tews and Praxel which is unrefuted
and credited indicates to me that the Company refused
to grant any economic concessions because of its finan-
cial condition. Although the Company's chief negotiator
491
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
kept repeating that the Company was not pleading pov-
erty, he gave as his reasons for refusing all of the
Union's economic demands that: Costs were increasing,
inventory was increasing, sales were decreasing, orders
were decreasing, the Company was in a recession, em-
ployees were working a short workweek, and the Com-
pany was in no position to agree to the Union's econom-
ic demands. Moreover, the same reasons were given as
the Company's justification for proposing certain eco-
nomic "give backs." It is my conclusion that regardless
of how many times Respondent uses the "magic words"
or self-serving explanations for its bargaining position,
the fact remains that it was pleading financial inability to
pay or its equivalent. It is also apparent from the evi-
dence that the Union demonstrated its need for the finan-
cial data requested. As Praxel testified, the Union was
not only faced with Respondent's flat denial on all eco-
nomic proposals but was also confronted with Respond-
ent's demand for substantial economic concessions which
it had gained over the years. In light of Respondent's
credited reasons for its bargaining position, Praxel, as he
testified, needed to know whether or not Respondent's
claims were accurate so that he could evaluate the
Union's bargaining position.
I further conclude, based on the unrefuted testimony
of the Union's witnesses, that it would have made no dif-
ference what position Respondent took on economic
issues since Respondent was unwilling to furnish finan-
cial data to the Union for any reason.
Accordingly, I find that by refusing to furnish the re-
quested financial data, Respondent has violated Section
8(a)(1) and (5) of the Act as alleged in paragraphs 10(c)
and I l(b)(ix) of the complaint.
F. Failure to Give Respondent's Negotiators Sufficient
Authority to Engage in Meaningful Collective
Bargaining
The parties stipulated that Donald Schulz, the compa-
ny president, must approve all noneconomic proposals
and that three other unnamed partners in addition to
Schulz had to agree to all economic proposals before
agreement could be reached with the Union.
The record indicates that the Union was told prior to
negotiations that final authority for approval of all pro-
posals was vested in Donald Schulz who was readily
available in the plant during negotiating sessions. The
record further indicates that no partner has been a
member of Respondent's negotiating committee since
1977. The record evidence also indicates that Respond-
ent's negotiating committee had authority to propose
economic "give-backs" and to reject all the Union's eco-
nomic proposals.
Philip Kleba testified that Respondent's negotiating
committee had authority to propose the existing contract
"as is." He further testified as follows to a series of ques-
tions asked by Loebel:
Q. Now the justifications in essence, do I under-
stand you viewed your role and somewhat Mr.
Peck's to be a conduit to take what the union says
back to Mr. Schulz just to relate to him what is
being said? And Mr. Schulz says something and you
relay that back at the bargaining meeting to the
union people? Is that what your roles were?
A. Basically what we had to do was listen to the
union give their justifications, their reasons.
Q. Yes.
A. Try and get the union to relay to us as fully
as they can so we can take those answers back to
Donald [Schulz] and justify them to Donald.
Q. And then explain to Mr. Schulz?
A. Yes.
Q. Is there any reason you didn't put a tape re-
corder on the table and take that to Mr. Schulz?
A. I believe that came up on several occasions.
And I don't believe I remember what the answer is.
Analysis and Conclusions
It seems apparent from Respondent's admissions that
its negotiating committee had no authority to agree to
anything meaningful without first seeking the approval
of Schulz who was available for that purpose with re-
spect to noneconomic issues. It is equally clear that eco-
nomic proposals had to be cleared with partners who
were apparently not available. Although it was not al-
leged that this negotiating format caused any delay in ne-
gotiations, it seems clear that Respondent's methods pre-
vented any give-and-take negotiating at the bargaining
table, which is such an important ingredient for reaching
agreement. While I am cognizant that Respondent is not
required to be represented by an individual possessing
final authority to enter into an agreement, Respondent is
required to have someone present who can engage in
meaningful negotiations. This was clearly not the case.
By Respondent's own admissions, it seems apparent that
its negotiating committee merely acted as a conduit, re-
laying the Union's proposals to Schulz and the other
partners and then, in turn, relaying the partners' answers
to the union committee. In my opinion, this system can
do nothing but inhibit negotiations.
Respondent argues in brief that the Union was made
aware of Respondent's negotiating procedure and negoti-
ated on that basis, citing Rockingham Machine-Lunex
Co., 255 NLRB 89 (1981). I cannot accept Respondent's
argument for two reasons. There is no evidence that the
Union was ever informed that economic proposals had to
be approved by all the partners who I find were not
readily available for this purpose. Secondly, the Rocking-
ham Machine case at least envisions that Respondent's
negotiators have authority to reach tentative agreement,
which is not the situation in this case.
Accordingly, I find that Respondent violated Section
8(a)(l) and (5) of the Act as alleged in paragraph 1 l(b)(i)
by failing to give its negotiators sufficient authority to
engage in meaningful collective bargaining.
G. Unilateral Change in Wage Rates
The record evidence indicates that throughout negoti-
ations which lasted from March 16 to December 16, Re-
spondent rejected all the Union's economic proposals in-
cluding a proposed wage increase of 8 percent effective
May 1, 1982, which was made on June 15 and presented
in writing on December 16. However, on January 19,
492
S-B MFG. CO.
1982, Respondent increased wages of unit employees by
21 cents per hour without notifying or negotiating over
this increase with the Union. Wage increases have been
granted in the past by Respondent at approximately this
time of year and in the same manner. Throughout nego-
tiations, the Union proposed changes in the current
agreement which would remove unilateral wage in-
creases and hours reduction from the agreement.
Respondent argues in brief that, under article 7, sec-
tion 2 of the collective-bargaining agreement in effect at
the time, it had a right to grant the wage increase and it
has exercised this right in the past. Article 7, section 2
reads:
The wages and benefits set forth in this agree-
ment are minimums, and the company may from
time to time institute, change or establish benefits
and wages in excess of the minimums provided in
this agreement.
The General Counsel does not address this issue in her
brief and the Charging Party approaches the issue not so
much from the standpoint that the unilateral increase was
a violation but that Respondent's position at the bargain-
ing table with respect to wages evidenced bad-faith bar-
gaining.
Analysis and Conclusions
Based on the contract language, Respondent's past his-
tory of granting unilateral wage increases, and the
Union's current bargaining position with respect to
wages, I find that Respondent did not violate Section
8(a)(1) and (5) of the Act as alleged when it granted the
unilateral wage increase. However, Respondent's negoti-
ating position vis-a-vis wages will be addressed in para-
graph J of this decision. Accordingly, I will dismiss the
General Counsel's allegation contained in paragraph
I l(b)(vi) of the complaint.
H. Employee-Management Committee
Approximately 4 years ago Respondent formed a
safety committee which was changed to employee-man-
agement committee after 2 years. The purpose of the
committee as it is now constructed is to discuss safety
problems and to obtain feedback from employees on
most any subject. The committee is composed of six em-
ployees, the plant manager, and the assistant personnel
manager who meet at monthly intervals. Employee
members are chosen by Respondent on the basis of out-
going members' recommendations. The Union has no
representative on the committee, and union representa-
tive Fred Praxel was never informed of the existence of
the committee. In many cases, problems raised by em-
ployees are checked into and solved as a result of the
meeting, and the resolutions are shown on the minutes
which are posted monthly on each of the departmental
bulletin boards.
Examination of the minutes of the monthly meetings
for a 6-month period preceding the issuance of the com-
plaint wherein the allegation is contained indicates that
the following subjects were discussed and in many cases
resolved: (1) written reprimands and personnel files, (2)
the need for union representation, (3) safety rules, (4)
breaktime and quitting time, (5) posting of hourly pro-
duction rates, (6) fire drills, (7) availability of tools, (8)
disparate treatment of employees, (9) the amount of in-
coming orders, (10) government contracts, and (11) the
Company's economic condition. Prior to the most recent
6 months such items as heating, lighting and ventilation,
work rules, personnel policies applying to pregnant em-
ployees, and layoffs were also the subjects of discussion
at these meetings.
Analysis and Conclusions
The General Counsel contends that Respondent's sup-
port and participation in the meetings had the effect of
undermining the Union's status as exclusive representa-
tive of the employees. Respondent contends that the
meetings are nothing more than safety meetings which
the Union should have been fully aware; and since the
Union did not object to the committee, it in effect con-
doned its existence, citing Citizens National Bank of Will-
mar, 245 NLRB 389 (1979).
None of the charges in this case refer to this allega-
tion. However, the last complaint issued on March 15,
1982, raises this allegation for the first time. Respondent
answered this complaint and the issue was fully litigated
at the hearing. The General Counsel does not allege that
the formation of the committee constituted a violation of
Section 8(a)(l) and (5) of the Act, but argues instead that
Respondent is using these meetings in an effort to bypass
and undermine the Union. Under these circumstances I
cannot find nor do I find that the formation of the com-
mittee violated the Act. On the other hand, there is little
doubt that the subjects discussed and resolved at the
committee meetings dealt with the very matters that are
clearly within the exclusive province of the Union. I do
not agree with Respondent's argument that the Union
waived its right to negotiate over the subjects which Re-
spondent chose to take up directly with its employees.
The facts in the Citizens National Bank case are simply
not analogous to those in this case.
I further find that Respondent's actions in meeting
with its employees for the purpose of resolving bargaina-
ble issues violates Section 8(a)(1) and (5) of the Act and
exhibits an intention to undermine the Union and destroy
its effectiveness. I also find that Respondent's persistent
conduct constitutes a continuing violation of the Act.
Walker Die Casting, 255 NLRB 212 (1981), and Limpco
Mfg. Inc., 225 NLRB 987 (1976). Accordingly, I find
that Respondent violated Section 8(a)(1) and (5) of the
Act as alleged in complaint paragraph I l(b)(viii).
I. Respondent's Attempt at Preventing the Union from
Communicating with Employees
Throughout negotiations Respondent refused to allow
the Union to post the parties' negotiating proposals on
the Union's bulletin board and further refused the
Union's proposal to give the Union a key to its bulletin
board. Respondent's reason for rejecting the Union's pro-
posal was that the single key not only fit the union bulle-
tin board but also several other company bulletin boards.
When the Union proposed to have the lock changed at
493
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its own expense, Respondent rejected the offer. Further-
more, Respondent refused to allow the Union to post its
grievances over the John Tews discipline while at the
same time posting its answers to those grievances on the
company bulletin boards. Respondent argues that the
contract language limits the use of the Union's bulletin
board to "the notification of its members of meetings
and/or events pertaining to the members of its local
union." The General Counsel argues that this language
sanctions much broader use of the bulletin board.
In further support of this allegation, General Counsel
cites the discipline of John Tews for communicating
with unit employees concerning the progress of negotia-
tions and for attaching copies of the parties' proposals to
the employee letters. Respondent told the Union that, be-
cause the Union circulated the proposals, Respondent
might not give written proposals in the future. The Gen-
eral Counsel also supports this allegation with evidence
of Respondent's refusal to furnish names and addresses of
unit employees while, at the same time, it dealt directly
with its employees through the employee-management
committee on a monthly basis in an effort to thwart the
Union and destroy its effectiveness.
Analysis and Conclusions
After reviewing all the evidence in support of this alle-
gation, it appears abundantly clear and I find that Re-
spondent made every effort to isolate the Union from the
employees it represented. Some of Respondent's efforts
bordered on the ridiculous and some were more serious;
however, the cumulative effect achieved the desired
result of destroying any meaningful communication be-
tween the Union and the employees. Denial of bulletin
board privileges, which it freely gave to the employees
for their bulletin board, was not alleged to be a violation
of the Act and I cannot so find because of the contract
language; however, the other allegations discussed above
were found to be violations of Section 8(a)(1), (3), and
(5) of the Act. Accordingly, I find that Respondent's
conduct in preventing the Union from communicating
with its employees during negotiations, while at the same
time dealing directly with its employees over bargainable
issues, to be a violation of Section 8(a)(1) and (5) of the
Act as alleged in paragraph I I(b)(vii) of the complaint.
J. "Surface" or Overall Bad-Faith Bargaining by
Respondent
1. General information on 1981 negotiations
The evidence with respect to negotiations is not in dis-
pute since it was either unrefuted or stipulated.
(a) Respondent granted a general wage increase in Jan-
uary 1980 and insisted that these increases not be incor-
porated into the current agreement. Thus, the current
contract contained 1979 minimum wage scales which
were below what the employees were earning.
(b) During the course of the current negotiations, the
Union made 22 proposals for contract modification and
only the Union's proposal to change the dates of the
contract was agreed upon. Respondent proposed 39
modifications to the contract and the Union agreed to 9
of these, as modified through negotiations.
(1) Proposal 7 was modified to provide for 10-day re-
porting deadline following recall from layoff rather than
5 days, as proposed by Respondent. The current contract
has no deadline.
(2) Proposal 8 was modified to provide a 30-day limit
for involuntary transfer unless "mutually agreed upon by
employee and employer," rather than 90 days proposed
by employer. The current contract has 30-day limit with
no provision for extension.
(3) Proposal 11 was modified to provide for 25 work-
days' trial period for employees transferred under job
posting procedure, rather than 30 workdays proposed by
Respondent. The current contract provides for 30 calen-
dar days.
(4) Proposal 15 was modified to lower wage rate for
employees on light duty, "commencing with next pay
period," rather than immediately, as proposed by Re-
spondent. The current contract provides that an employ-
ee's wage rate would not be reduced while on light duty.
(5) Proposal 22, as proposed by Respondent, requires a
I-week notice of quit before employee qualifies for vaca-
tion pay. No notice required under the current contract.
(6) Proposal 24 was modified to require doctor's certif-
icate "submitted" rather than "approved" within 8 days
of beginning of medical leave of absence, on pain of ter-
mination. The current contract has no deadline for sub-
mission of certificate.
(7) Proposal 27 was essentially as submitted by Re-
spondent, with language changes which do not change
intent to permit Respondent to reschedule lunch periods
if needed. The current contract language places the
lunch period at noon.
(8) Proposal 28 was modified to provide for 2-day time
limit for union submission of second step grievance,
rather than I day, as proposed by Respondent. The cur-
rent contract has no time limit.
(9) Proposal 29 was modified to provide 2 days for
third step answer, rather than 3 days proposed by Re-
spondent. The current contract has 2-day limit.
(c) No economic changes were agreed to and no eco-
nomic improvements were proposed by Respondent for
the upcoming contract term.
(d) During the course of the 1981 negotiations, Re-
spondent made no counterproposals to the Union's pro-
posals on the following subjects: union security and
checkoff, elimination of unilateral wage increases, union
access to the union bulletin board, management rights,
elimination of unilateral hours reduction, and all pro-
posed improvements in economic benefits.
2. Wages and other economic issues
On June 15 the Union proposed an 8-percent wage in-
crease to be effective May 1, 1982. From the commence-
ment of negotiations the Union also proposed the elimi-
nation of unilateral wage increases from the current
agreement. Respondent rejected both proposals through-
out negotiations, insisting that it needed the right to
grant unilateral wage increases above the minimum rates.
Respondent made no economic counterproposals other
than to propose the elimination of three paid holidays,
bereavement pay, and sickness and accident benefits,
494
S-B MFG. CO.
pleading financial inability to pay. The last negotiating
session was held on December 16. On January 19, 1982,
Respondent unilaterally granted a 21-cent-per-hour in-
crease to all unit employees.
3. Management rights
From the beginning of negotiations, the Union pro-
posed a management-rights clause which, inter alia,
eliminated hours from the exclusive control of manage-
ment. Respondent, throughout negotiations, insisted on
the present management-rights clause which reads:
Except as otherwise limited by a specific provi-
sion of this agreement, the management of the plant
and the affairs of the company, and the direction of
working forces are vested exclusively in the em-
ployer, including, but not limited to, the right to
hire, the right to discipline or discharge for cause,
the right to lay off, terminate or otherwise relieve
employees from duty for lack of work or other le-
gitimate reasons, the right to promote or demote
employees, the right to transfer employees between
jobs, the right to change the content of jobs, the
right to assign work, the right to determine the
number of employees, the number of hours, and the
schedules of employment, the right to prescribe and
enforce reasonable work rules, the right to deter-
mine the work to be done and the manner and
methods for efficiently doing the work, and the
right to determine suppliers, prices, products, and
the hours and whether any of the work will be sub-
contracted or be performed by supervisors. The list-
ing of specific rights in this agreement is not intend-
ed to be nor shall it be restrictive nor a waiver of
any of the rights of management, whether or not
such rights have been exercised by the company in
the past. The reasonableness of the company's rules
will be subject to the grievance procedure.
Respondent also insisted that work rules would not be
subject to the grievance procedure. No agreement was
ever reached on these items.
4. Union security
During negotiations the Union proposed various forms
of union security: standard union-shop clause with
checkoff, agency shop, and a maintenance-of-membership
clause. Respondent rejected all these proposals maintain-
ing that the Company's position that open shop will be
continued as it has for the past 7 years for reasons expli-
cated in the employee handbook. The Union offered to
agree to accept liability for all strikes, whether author-
ized or not (which was one of Respondent's proposals),
if Respondent agreed to some form of union security.
Respondent rejected the Union's proposal.
5. Information to the Union
During negotiations Respondent proposed to eliminate
provisions in the current contract which provide the
Union with advance notice when an employee is to be
terminated, and provide the Union with quarterly copies
of the adjusted seniority list used to determine promo-
tions, recalls, vacations, and transfers. The reasons ad-
vanced by Respondent during negotiations for the elimi-
nation of the termination notice was that it wanted to
avoid liability for a possible slander or libel suit for im-
proper dissemination of reasons for discharges. Respond-
ent justified its proposal regarding the seniority list by
stating that it could not afford to furnish the list more
frequently. The seniority list is three or four pages long
since there are only 61 employees in the unit and is ad-
justed periodically because absenteeism reduces seniority.
The Union countered with a proposal to agree to a
yearly seniority list if Respondent would not adjust se-
niority for absenteeism. Respondent rejected this propos-
al.
6. Seniority
Respondent initially proposed changing the current
contract from plantwide seniority to departmental senior-
ity. On May 1 the Union countered with a proposal to
agree to departmental seniority if Respondent would pay
insurance premiums and provide supplemental unemploy-
ment benefits. This proposal was rejected by Respond-
ent. On May 8 Respondent proposed to drop its propos-
als on departmental seniority if the Union would drop all
noneconomic proposals. The Union countered with a
proposal that it would drop all noneconomic proposals
except those concerning adjustment of seniority, unilater-
al wage increases, and unilateral hours' reduction. Re-
spondent rejected the Union's proposal. No other coun-
terproposals were made on any subject by Respondent
during negotiations.
7. Final offers
On June 15 the parties made their final proposals. Re-
spondent proposed the current agreement with agreed-to
modifications and the right to unilaterally change the in-
surance carrier. On the same date and again on Decem-
ber 16, in writing, the Union proposed: (a) maintenance-
of-membership shop plus union shop for all new employ-
ees, (b) effective May 1, 1982, the Company may reduce
the workweek to 32 hours for a period of 6 weeks in the
aggregate each contract year. Extension of the 32-hour
week may be made by mutual agreement of the parties,
(c) change article 7, section 2 (wages) to read "All em-
ployees covered by this agreement shall receive a wage
increase of 8 percent effective May 1, 1982," (d) 2-year
labor agreement effective May 1, 1981, through April 30,
1983, (e) parties to drop all other open issues, and (f) the
Union to drop all charges pending with the National
Labor Relations Board.
Analysis and Conclusions
The totality of Respondent's conduct throughout ne-
gotiations in my view exhibits a total rejection of the
principles of good-faith bargaining. With respect to
every important issue, Respondent insisted on the Union
relinquishing its statutory rights. In effect Respondent in-
sisted on exclusive control over wages, hours and work-
ing conditions. While it could be argued that the Union
relinquished these statutory rights in the past, I know of
no case which holds that the Union has by its action
495
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
given up these rights in perpetuity. Therefore, Respond-
ent's position throughout negotiations with respect to
these statutory rights can only be viewed as an attempt
to frustrate bargaining and destroy the Union. Gulf States
Canners, 224 NLRB 1566 (1976); Tomco Communications,
220 NLRB 636 (1975). Furthermore, Respondent's bar-
gaining position concerning wages and other economic
issues was clearly a sham when viewed in light of Re-
spondent's later action of granting a wage increase, not-
withstanding the fact that it may have had the right to
grant a unilateral wage increase.
Coupled with these major violations, Respondent took
untenable positions on many minor issues to frustrate
bargaining. Respondent refused to grant the Union a key
to its bulletin board. It also proposed to eliminate notifi-
cation to the Union in discharge cases for the spurious
reason that it was concerned over libel or slander suits
when, in fact, the contract never provided that the
Union be given reasons for terminations. It further pro-
posed to eliminate furnishing quarterly seniority lists for
reasons which were patently unwarranted. Furthermore,
it insisted on the right to unilaterally change insurance
carriers for no apparent reason and made no meaningful
counterproposals to anything proposed by the Union
throughout negotiations.
Finally, during negotiations Respondent committed nu-
merous violations of the Act. It unilaterally changed em-
ployee benefits, disciplined the Union's president, and re-
fused to furnish relevant information. It also sent negotia-
tors to the bargaining table who obviously had no au-
thority to engage in meaningful collective bargaining,
dealt directly with employees instead of the Union, and
frustrated communications between the Union and the
employees. In summary, I am hard-pressed to find any
element of good faith in Respondent's total conduct. Ac-
cordingly, I find that Respondent's conduct from the be-
ginning of negotiations was calculated to either frustrate
negotiations or require the Union to surrender every stat-
utory right. In my opinion and I so find, Respondent's
actions in this respect constitute overall bad-faith bar-
gaining in violation of Section 8(a)(l) and (5) of the Act
as alleged in complaint paragraphs 1 l(b)(ii), (iii), and (iv).
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Local 659, Allied Industrial Workers of America,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees of S-B
Manufacturing Co., Ltd., at the Wauwatosa, Wisconsin
location, but excluding office employees, professional
employees, guards, temporary summer/seasonal employ-
ees, foremen, assistant foremen, and other supervisors as
defined in the Act as amended, constitute a unit appro-
priate for collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times material herein, Local 659, Allied In-
dustrial Workers of America, AFL-CIO, has been the
exclusive representative for purposes of collective bar-
gaining of all the Respondent's employees employed in
the unit described above in Conclusion of Law 3.
5. Respondent has violated Section 8(a)(3) and (1) of
the Act by disciplining John Tews.
6. Respondent has violated Section 8(a)(l) and (5) of
the Act by:
(a) Disciplining John Tews.
(b) Unilaterally terminating the benefits of Anna Tur-
tenwald and all other employees.
(c) Failing to furnish relevant information to the
Union.
(d) Failing to give its negotiators sufficient authority
to engage in meaningful collective bargaining.
(e) Negotiating with its employees instead of the
Union over bargainable issues.
(f) Prohibiting communications between the Union and
the employees.
(g) Refusing to engage in good-faith bargaining since
March 16.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
8. Except as found above, Respondent has not engaged
in other unfair labor practices as alleged.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices, I shall recommend
that it be ordered to cease and desist therefrom and take
affirmative action necessary to effectuate the purposes of
the Act and to post appropriate notices. I shall further
recommend that Respondent be required to expunge
from the personnel records of John Tews the final warn-
ing which was given to him on June 4 and all references
thereto. For the reasons previously discussed, I shall fur-
ther recommend that Respondent be ordered to reim-
burse Anna Turtenwald and any other employees, with
interest, for losses sustained as a result of Respondent's
unilateral termination of her/their health insurance and
other benefits and to reinstate her benefits. It is also rec-
ommended that Respondent be ordered to bargain in
good faith with the Union concerning any decision made
by Respondent to change employee benefits and other
terms and conditions of employment of employees in the
unit set forth above, and the effects of such decision on
the employees including the decision to terminate bene-
fits of employees on disability leave resulting from a
work-related injury. I shall also recommend that Re-
spondent be ordered to cease and desist from bargaining
in bad faith and to take appropriate affirmative action as
set forth in the Order to remedy this bad-faith violation.
[Recommended Order omitted from publication.]
496