San Angelo Standard, Inc.

National Labor Relations Board - Board Decisions

Dec 2, 1954

110 N.L.R.B. 1091 (N.L.R.B. 1954)

SAN ANGELO STANDARD, INC. 1091
by the Employer at the rate of $1.10 per thousand pounds of fish
unloaded. Supervision of the lumpers is conducted by the foreman
of the Employer's processing plant. The Employer pays social-
security and withholding taxes, and injuries are reported to the plant
foreman. The lumpers have been members of the Intervenor for
many years and were specifically included in the 1946 contract. Since
then, they have been bargained for in negotiations between the Em-
ployer and the Intervenor, and grievances have been processed by the
Intervenor on their behalf.
In view of the foregoing, we do not agree with the Employer that
lumpers are independent contractors, as it is clear they are hired by
and work under the direction and control of the Employer.8 The
fact that they are paid on a different basis is not controlling.9
Although it appears that the lumpers do not work directly with the
fishermen, the status of lumpers as shore employees is not so far
removed from that of the boat employees as to preclude being included
in the same unit.Y° Furthermore, to exclude lumpers now would mean
denying them any representation, as they have been excluded from
the units of plant employees and of coast workers, respectively.
We find, in view of the above evidence indicating control by the
Employer, that the lumpers are regular part-time employees of the
Employer, rather than independent contractors. We further find,
particularly because of the history of collective bargaining, that they
are appropriately a part of the fishermen's unit.
We find that all fishermen employed by the Employer on its fishing
boats working out of Rockland, Maine, including the second engineer
and lumpers, but excluding the captain, the mate, the chief engineer,
guards, and all supervisors as defined in the Act, constitute a unit
appropriate for purposes of collective bargaining within the meaning
of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication.]
s Plainfield Courier-News Co., 95 NLRB 532, 534-7.
° Plainfield Courier-News Co., supra.
10 The Board has held that boat and shore employees may appropriately be part of
a single appropriate unit. O. F. Shearer tf Sons, 93 NLRB 1228 ; Hatfield Campbell
Creek Coal Company, 93 NLRB 999.
SAN ANGELO STANDARD , INC. and INTERNATIONAL STEREOTYPERS &
ELECTROTYPERs UNION OF NORTH AMERICA , AFL. Case No.
l6-CA-674. December 2,1954
Decision and Order
On April 13, 19,54, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, finding that
110 NLRB No. 181.
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that the Respondent cease and
desist therefrom and take certain affirmative action as set forth in
the Intermediate Report attached hereto. Thereafter, the Respondent
and General Counsel filed exceptions to theylntermediate Report ,nd
the Respondent filed a brief in support of its exceptions.
The Board has reviewed the rulings made by the Trial Exariiilier
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report. the exceptions and brief, and the entire record
in this case and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following additions and
modifications.'
1. The Trial Examiner found, and we agree, that the Respondent,
in violation of Section S (a) (1) of the Act, interfered with, restrained,
and coerced its employees in the exercise of their self-organizational
rights guaranteed by the Act. Apparently because the Respondent
conceded that the record supports such a finding, the Trial Examiner
did not detail the specific respects in which the Respondent violated
Section 8 (a) (1). However, he relied upon the facts established by
undenied testimony which he recited in connection with the discus-
sion of James' discharge. Accordingly, we find, on the basis of uncon-
troverted testimony, that the Respondent violated Section 8 (a) (1)
by the following conduct of its general manager and supervisors :
(a) On March 11, 1953, while interviewing James, an applicant
for employment, General Manager Woody told James, "As long ap
Mr. Harte or the Harte family had anything, had control of the
Standard-Times that there would never be a contract signed with the
Union"; that "the men that were nonunion employees that hadn't
joined the Union would have a job with Mr. Harte as long as they
wanted to work, all their lives if they wanted it"; that "if should
they [Respondent] not be able to put [James] to work that the Union
would be the difference of whether [he] went to work or not, that
since [he] did feel about the Union the way [he] did, that if they
put [him] to work and [he] was a-union man that it would be a iiiiark
against the office, against them trying to organize the shop."
(b) On March 16, 1953, General Manager Woody informed James,
when he returned to the plant for the Respondent's answer regarding
his application, "We have nothing'personal against you, we like you
and we like your work, but since you 'do feel the way you do about
the Union, we can't see fit to give you a job."
'After the hearing, the General Counsel, and the Respondent stipulated that the Re-
spondent had a gross income substantially in excess of $500 ,000. This stipulation is
hereby received and made part of the record We'find that the Respondent is engaged
in commerce within the meaning of the Act. ' See The Daily Press, Incorporated, 110
NLRB 573 - . _. __
SAN ANGELO STANDARD, INC. 1093
(c) Shortly after March 16, 1953, when Foreman Riehl told
Harlow, an employee in the pressroom of the Respondent's plant,
"It didn't look like that Jesse [James] could go to work with us on
account of that he had a card," but that it was the "policy of the office
that they didn't want a man to have a card."
(d) On or about April 12, 1953, Foreman Kirkham told night
shift pressman Perkins, "Well things are kind of in a bad shape
around here right now, the Union and everything, union men will
probably give you a pretty rough time at first but we are going to
get rid of the union men and get that all straightened out and then
it won't be so bad."
(e) On April 13, 1953, General Manager Woody told Perkins,
"They was going to get rid of the union men that was working there,
and get the shop straightened out where it wouldn't be messed up
so bad, and get things working again"; and that if he would "stay
out of the union he'd have a job there with the company for just
as long as he wanted it."
(f) On or about April 30, 1953, when Deans applied for a position,
(x rieral Manager Woody asked him if he "ever belonged to the
-Union"; and when Deans told Woody that he did not think that he
would join, Woody gave Deans an application and told him to bring
it back at a later date. At that time Woody also told Deans, "They
[Respondent] were having a little trouble"; and that, "They [Re-
spondent] were going to try to get rid of" union members, and that
"They [Respondent] never would sign a contract."
2. On the basis of the uncontroverted evidence in the record, we
also agree with the Trial Examiner that the Respondent, in violation
of Section 8 (a) (3) and (1) of the Act, discriminatorily denied
Jesse James employment because of his union membership.
3. We agree with the Trial Examiner that the Respondent did not
bargain in good faith with the Union, the duly certified bargaining
representative of the Respondent's employees in the stereotyping and
pressroom departments, and thereby violated Section 8 (a) (5) and
(1) of the Act. It is true, as the Respondent contends, that the Act
does not require an employer to make concessions to a union's demands
nor does it prevent the employer from seeking to reserve to itself the
right to handle certain terms and conditions of employment unilater-
ally. However, as the court so aptly stated in the Atlanta Broadcast-
ing case,' the employer is also legally bound ". . . to negotiate with
an open mind and sincere desire to reach an agreement in a spirit
of amity and cooperation."
Like the Trial Examiner, we are not persuaded that the Respondent
approached the bargaining table in that spirit. This is reflected not
2 Atlanta Broadcasting Company, 193 F. 2d 641 at 642 (C A. 5), enfg 90 NLRB 808.
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
simply in the Respondent's adamant refusal to establish fixed terms
and conditions of employment for the duration of any contract that
might be executed as a result of the negotiations, but also in its con-
temporaneous commission of the unfair labor practices during the
period of negotiation which are discussed in the Intermediate Report
and summarized above. Indeed, it appears to us, as it did to the
Trial Examiner, that the Respondent's entire course of conduct dur-
ing this period was designed to avoid arriving at an understanding and
thus to demonstrate to its employees the ineffectiveness of the Union 3
In view of all the facts and circumstances, we find that the Respond-
ent did not bargain in good faith with the Union and thereby violated
Section 8 (a) (5) and (1) of the Act .4
Order
Upon the Entire record in this case, and pursuant to Section 10'(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that San Angelo Standard, Inc., San
Angelo, Texas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Stereotypers & Elec-
trotypers Union of North America, AFL, or in any other labor organ-
ization of its employees, by discriminating against applicants for
employment or against its employees, in regard to their hire or tenure
of employment or by discriminating against them in any other man-
ner in regard to any term or condition of employment except to the
extent permitted by Section 8 (a) (3) of the Act.
(b) Refusing to bargain collectively with International Stereotypers
& Electrotypers Union of North America, AFL, as the exclusive rep-
resentative of the Respondent's employees in the stereotyping and
pressroom departments.
(c) In any manner threatening its employees with reprisals for
engaging in union activities, or interrogating its employees or appli-
cants for employment as to their union affiliation or activities, or prom-
ising its employees or applicants for employment reward for refrain-
ing from union activities.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations, to join or assist International Stereotypers
& Electrotypers Union of North America, AFL, or any other labor
s See Atlanta Broadcasting Company, supra; Harden Manufacturing Company, _ 106
NLRB 1335: National Paper Company, 102 NLRB 1569.
' In so concluding we do not subscribe to the Trial Examiner 's gratuitous remarks con.
cerning the futility of a grievance procedure which does not provide for arbitration as
the final step
SAN ANGELO STANDARD, INC. 1095
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid and protection, or to refrain
from any or all of such activities except to the extent that such rights
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section 8
(a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Jesse James immediate employment in the position re-
quested on March 11, 1953, or in a substantially equivalent position
in the Respondent's stereotyping and pressroom departments, without
prejudice to the seniority or other rights and privileges to which he
would have been entitled had he not been discriminated against, and
make him whole for any loss of pay which he may have suffered by
reason of the discrimination against him in the manner provided in
the section of the Intermediate Report entitled "The Remedy."
(b) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social-security records,
timecards, personnel records, and all reports and other records neces-
sary to determine the amount of back pay due under the terms of
this Order.
(c) Upon request, bargain collectively with International Stereo-
typers & Electrotypers Union of North America, AFL, as the exclusive
representative of the employees in the unit herein found appropriate,
with respect to wages, rates of pay, hours of employment, and other
terms and conditions of employment, and if an understanding is
reached, embody such understanding in a signed agreement.
(d) Post in its plant at San Angelo, Texas, copies of the notice
annexed hereto as an appendix.5 Copies of such notice, to be furnished
by the Regional Director for the Sixteenth Region, shall, after being
signed by the Respondent's representative, be posted by the Respond-
ent immediately upon receipt thereof and maintained by it for sixty
(60) consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Sixteenth Region in writ-
ing, within ten (10) days from the date of this Order, as to what steps
the Respondent has taken to comply herewith.
5 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order,"
the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an
Order."
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in International Stereo-
typers & Electrotypers Union of North America, AFL, by dis-
criminating against applicants for employment or against our
employees in regard to their hire or tenure of employment, or
by discriminating against them in any other manner in regard
to any term or condition of employment except to the extent
permitted by Section 8 (a) (3) of the Act.
WE WILL NOT in any manner threaten our employees with
reprisals for their engaging in union activities nor will we inter-
rogate our employees or applicants for employment as to their
union affiliations or activities, nor will we promise our employees
or applicants for employment reward for refraining from union
activities.
WE WILL bargain collectively upon request with International
Stereotypers & Electrotypers Union of North America, AFL, as
the exclusive representative of all the employees in the bargaining
unit described below with respect to rates of pay, hours of em-
ployment, and other conditions of employment, and if an under-
standing is reached, embody such understanding in a signed
agreement. The bargaining unit is :
All employees in the stereotyping and pressroom departments
of the Company at its San Angelo, Texas, plant, exclusive
of the day foreman, night foreman, office and clerical em-
ployees, professional employees, guards and watchmen, all
other employees, wad all other supervisors as,defined in the
Act.
WE WILL offer Jesse James immediate employment in the job
requested by him on March 11, 1953, or a substantially equivalent
position without prejudice to the seniority or other rights and
privileges to which he would have been entitled had he not been
discriminated against, and we will make him whole for any loss
of pay suffered as a result of the discrimination against him.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist the
above-named or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage
SAN ANGELO STANDARD, INC. 1097
in other concerted activities for the purpose of collective bargain-
ing, or other mutual aid or protection, or to refrain from any or
all such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organ-
ization as a condition of employment as authorized in Section
8 (a) (3) of the Act.
All our employees are free to become, remain, or to refrain from
becoming or remaining members of any labor organization, except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment,
as authorized in Section 8 (a) (3) of the Act.
SAN ANGELO STANDARD, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Upon a charge duly filed on September 10, 1953 , by International Stereotypers &
Electrotypers Union of North America, AFL, herein called the Union , the General
Counsel of the National Labor Relations Board , hereinafter called the General
Counsel and the Board , respectively,' by the Regional Director for the Sixteenth
Region (Fort Worth , Texas ), issued his complaint dated October 19 , 1953, against
San Angelo Standard , Inc., herein called the Respondent , alleging in substance that
the Respondent : ( 1) By various enumerated acts and statements had interfered
with , restrained , and coerced its employees ; ( 2) had refused employment to Jesse
James because of his membership in the Union; and (3) had refused to bargain
collectively with the Union as the exclusive bargaining representative of the Re-
spondent's employees within the appropriate bargaining unit and was thereby en-
gaging in unfair labor practices affecting commerce within the meaning of Section 8
(a) (1), (3), and (5) and Section 2 (6) and ( 7) of the National Labor Relations
Act, 61 Stat . 136, herein called the Act . Copies of the complaint , the charge, and
the notice of hearing were duly served on the Respondent and the Union.
The Respondent duly filed its answer wherein it admitted certain allegations of
the complaint but denied the commission of any unfair labor practices.
Pursuant to notice , a hearing was held on December 1 and 2, 1953, at San
Angelo, Texas, before a duly designated Trial Examiner . The General Counsel,
the Union, and the Respondent were represented at the hearing by counsel. Full
opportunity to be heard , to examine and cross-examine witnesses , and to introduce
evidence bearing upon the issues was afforded all parties . On January 18 and 25,
1954, respectively , the General Counsel and the Respondent filed briefs.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
San Angelo Standard , Inc., is and has been at all times material hereto a corpora-
tion duly organized under and existing by virtue of the laws of the State of Texas,
having its principal office and place of blsiness in the city of San Angelo , Texas,
' This term specifically includes the counsel appearing for General Counsel at the
hearing.
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and is now and has been at all times herein mentioned continuously engaged at
said place of business in the publishing and distribution of daily and weekly
newspapers.
The Respondent in the course and conduct of its business operations at San
Angelo, during the 12-month period ending December 31, 1952, which period is
representative of all times material hereto , purchased raw materials , consisting
principally of newsprint , in the amount of at least $250,000, of which at least 33
percent was shipped in interstate commerce to the Respondent 's plant from points
outside the State of Texas. During the same period, the Respondent received at
least $140,000 in revenue from publishing of advertising for national advertising
agencies relating to products offered for sale, and the Respondent's circulation of
newspapers was approximately 40,000 copies daily, almost all of which were sold
within the State of Texas. During this same period , the Respondent was a member
of the Associated Press and received by telegraphic communication news from
within and without the State of Texas. Likewise, the Respondent furnished to the
Associated Press by telegraphic communication various items of local news. Dur-
ing the same period, Respondent was a member of Newspapers Enterprise Asso-
ciation and received certain feature news items from that source, and other material
from various other syndicates including the following: Mirror Enterprises Syndi-
cates; Associated Press News Features, United Feature Syndicate, Inc.; New York
Herald Tribune, Inc.; New York News Syndicate, Inc.; and King Features Syndi-
cate, Inc
The Respondent is engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
International Stereotypers & Electrotypers Union of North America, AFL, is a
labor organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference , restraint, and coercion
At the outset of its brief the Respondent states: "Respondent concedes that the
record will sustain a finding that Section 8 (a) (1) of the Act has been violated by
intimidatory statements by individual foremen ." This concession is justified by the
undenied testimony of at least three unimpeached witnesses.
Based upon the above concession and upon facts which will appear hereafter,
the Trial Examiner finds that the Respondent has violated Section 8 (a) (1) of the
Act.
B. The refusal to employ Jesse James
1. The facts
Having been told that employee Sanders had left his employment in the Respond-
ent's press and stereotype room and that an experienced employee was badly needed
in that operation at the Respondent 's plant, Jesse James , an experienced operator
who had worked for the Respondent in that department from 1945 until 1951, dur-
ing which time his salary had risen from $19 . 81 per week to $61.83 per week , applied
to Foreman Riehl for a job on March 11, 1953. After telling James that he had need
of an experienced man in his department due to the expected departure of Sanders
and that he would like to have James back, Riehl sent James to see General Manager
Woody.
James thereupon reported to Woody and informed Woody that Riehl had sent
him to Woody as Riehl required another experienced man in the pressroom and
would like to have an experienced man like James. Woody stated that he did not
know the situation but would talk it over with Riehl. Woody then related to James
the fact that there had been a Board election in the press and stereotype rooms re-
sulting in the certification of the Union as the bargaining agent since the time that
James had last worked for the Respondent and inquired of James as to what he
thought of the Union. James acknowledged that he thought "a lot" of the Union
and that, as soon as he returned to work in the pressroom, he would reinstate his
union card. It was a well known fact that James had joined the International Print-
ing Pressmen & Assistants' Union of North America, AFL, in September 1950, while
still in the Respondent's employ. Woody inquired whether James knew how Harte,
the owner of the Respondent, felt about the Union and James admitted that he did.
Woody continued by stating that "as long as Mr. Harte or the Harte family had any-
thing, had control of the Standard-Times that there never would be a contract
SAN ANGELO STANDARD, INC. 1099
signed with the Union" and that "the men that were nonunion employees that hadn't
joined the Union would have a job with Mr. Harte as long as they wanted to work,
all their lives if they wanted it." Woody stated further that the Union would make
the "difference" as to whether Respondent would be able to put James to work or not
and that, since James felt about the Union as he did, it would be a mark against the
office if they put him to work. Then, thanking James for having been honest about
his feelings toward the Union, Woody stated that he would talk to all concerned
and requested James to return in a day or two. -
After one previous vain attempt, James next saw Woody on Monday, March 16,
when he inquired as to what decision the Respondent had reached. Woody answered:
"Well, Jesse, . . . we have nothing personally against you, we like you and we like
your work, but since you do feel the way you do about the Union, we can't see fit
to give you a job."
After Respondent's refusal to employ James, employee Harlow asked Foreman
Riehl why James had not been employed and received the answer that it looked as
though Jesse could not go to work with Respondent on account of the fact that he
held a union card and that "it was the policy of the office that they did not want a
man to have a card." On another occasion Riehl expressed the opinion that James
was not hired because Woody thought James desired to work exclusively on the
presses.
Within a few days of March 11, Woody had employee Marshall Williams, a known
nonunion employee, transferred from the night shift in the pressroom to Sanders'
job on the day shift. Although this was said to be only a temporary arrangement
when made, Williams has remained on the day shift ever since.
To fill the vacancy left by Williams on the night shift the Respondent transferred
employee Jimmie Wilburn into the pressroom. Wilburn had been an employee of
the mailing room and, therefore, was known to be nonunion. On April 12, another
mail room employee, Gerald E. Perkins, was transferred into the pressroom after his
then foreman, O. C. Kirkham, informed him that the Respondent was having union
trouble there and assured Perkins that the Respondent was "going to get rid of the
union men and get that all straightened out and then it won't be so bad." On Kirk-
ham's orders Perkins reported to Woody who reiterated that the Respondent "was
going to get rid of the union men that were working" in the pressroom and that,
"if [Perkins] would stay out of the Union, he'd have a job there with the Company
for [Perkins] just as long as [Perkins] wanted it."
Finally about April 30, acting upon the suggestion of Marshall Williams, J. B.
Deans, Jr., applied to Woody for a job in the pressroom. After determining that
Deans had no pressroom experience, Woody asked Deans if he had ever belonged to
a union . After receiving a negative answer, Woody inquired what Deans thought
about a union. When Deans answered that he did not think he would join, Woody
had his secretary get an application for Deans. Before the end of the interview
Woody had informed Deans that the Respondent was having a little union trouble
but that they were going to try to get rid of the union men and that they would never
sign a contract with the Union. Deans was hired less than a week later.
2. Conclusions
The above findings are made upon the undenied, uncontradicted, and unimpeached
testimony of witnesses for the General Counsel. Respondent did not choose to call
Woody or Kirkham to affirm or deny any of the statements attributed to them.
Hence, unless the testimony of James and the other witnesses for the General
Counsel is, as the Respondent claims in its brief, so incredible or so contradictory
as to be unbelievable, such undenied testimony must be accepted here.
The Respondent bases its contention on two claims: (1) that James failed to
mention Woody's antiunion interrogation of him when speaking with Foreman
Riehl promptly after his two interviews with Woody; and (2) that Riehl was
quoted by different witnesses as attributing two different causes for Woody's action
in refusing employment to James, one being James' supposed preference to work on
the presses and the second being the fact that it was office policy not to hire a man
with a union card. Neither of these contentions is sound. The first contention is
factually incorrect for the record shows that James did mention Woody's antiunion
attitude to Foreman Riehl, contrary to the Respondent's assumption, for the two men
agreed that it would not be worthwhile to "give up" one's union card in order to se-
cure employment with the Respondent, a subject which could only have arisen from a
recital by James of Woody's antiunion comments. As to the Respondent's other
contention, the fact that Riehl may have expressed conflicting opinions as to the
motivation of Woody in denying employment to James to different employees in no
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
way impeaches the testimony of those witnesses . The important ' matter to be deter-
mined here is Woody's motivation-not Riehl's opinion as to Woody's motivation.
In this record there is nothing to contradict what Woody himself frankly stated his
motivation to be in refusing James employment-the fact that James carried a
union card.
In addition , Jesse James was a most impressive witness on the stand giving all the
appearance of a witness abiding by the oath he had taken . In the opinion of the
Trial Examiner he was a trustworthy, honest witness entitled to full credence. This
finding is buttressed by both the fact that the Respondent not only failed to impeach
his testimony but also chose not to, contradict him as well as by the fact that James
was corroborated in general by other credible witnesses.
The Respondent made one other, contention, i. e., that at the time James applied
for work the Respondent had no job opening. The evidence is to the contrary,
showing that on March 11, 1953, Foreman Riehl had serious need of experienced
operators in his pressroom and, especially so, if, as suspected, employee Sanders
did not intend to return to work. It is true that Woody apparently failed to under-
stand this need until James approached him on March 11 at the request of Foreman
Riehl. However, within a matter of days thereafter, Woody recognized the vacancy
by the transfer of Williams from the night shift to the day shift which necessarily
created a vacancy on the night shift. Although the date of Williams' transfer is
not definite on this record, it was made after James' initial appearance and within
a very few days thereof. Regardless of whether Williams' transfer was made::before
or after, Woody knew of the existing.vacancy at least prior to James' second call.
It is highly significant that Woody rejected James because he carried a union card-
not on the ground that there was no vacancy.2 In addition to his own uncontradicted
statement of his antiunion motivation in refusing James employment, Woody sub-
sequently confirmed this motivation by carefully making sure that each of the men
transferred into the pressroom thereafter was antiunion prior to his employment
or his transfer. Therefore Woody's actions confirmed the truth of his statement.
Respondent's brief implies that James was not employed because it was Respond-
ent's policy to promote men from within its existing organization exclusively. While
it is true that this so-called policy was applied on occasions, it is equally clear that
it was not applied in the case of Deans who was employed, only after giving assur-
ances of being antiunion, for the pressroom directly from working in a service
station unconnected with the Respondent.
Thus the fact that the Respondent discriminatorily refused employment to Jesse
James on March 16, 1953, because of his union membership is proved not only by
Woody's own admission but also by Woody's subsequent discriminatory hiring for
that vacancy. The Trial Examiner, therefore, finds that the refusal to employ
Jesse James on March 16, 1953, was in violation of Section 8 (a) (3) of the Act.
C. Refusal to bargain
1. The facts
As a result of a- Board -conducted ielection, the Union was duly certified on Decem-
ber 18 , 1952, as the bargaining agent for the appropriate unit consisting of all em-
ployees in the stereotyping and pressroom departments of the Respondent employed
at its San Angelo plant exclusive of the day foreman , night foreman, office and
clerical employees , professional employees, guards and watchmen , all other employ-
ees, and all other supervisory employees. Under date of December 18, 1952, the
Union wrote the Respondent requesting that it set a date for the negotiation of a
labor agreement covering the employees in the above -described unit. When no
answer to this request was received from the Respondent , the Union on January 11,
1953, repeated said request by letter which resulted in the setting of January 30
for such a meeting.
As agreed the Respondent and the Union met at the Respondent 's office in San
Angelo on January 30 , 1953 . There, as at the subsequent meetings , the Respondent
was represented by Ed Harte ,3 the Respondent 's president , Glenn Lewis and John M.
Scott, attorneys , and William Woody, business manager of the Respondent , together
with several other individuals present in order to assist the aforementioned. The
Union , on the other hand, was represented by C. A. Stewart , special representative
of the Union, Henry D. Dueser , a representative of the Union's Local 80, with a
committee of employees . At the commencement of the meeting the Union presented
2 See N. L. R. B. v Lummus Co., 210 F. 2d 377 (C. A. 5).
8 Harte was absent at one of the subsequent meetings
SAN ANGELO STANDARD, INC. 1101
a proposed agreement which Scott explained to his client was similar to the contract
then in effect between the Union and another of his clients, the Star-Telegram news-
paper of Fort Worth, Texas. The proposal was discussed paragraph by paragraph.
Harte, who was acting as Respondent's spokesman at this meeting, had no objections
to the recognition clause, the no-strike clause, or, after assurance by Scott that it
was legal and customary, to the severability clause. Otherwise Harte objected to
every other clause contained in the proposal on one or more of the following
grounds: (1) That the matter contained in the contract proposal was of no concern
to the Union and would in the future continue to be determined exclusively by the
management as it had been in the past; (2) that the Respondent would accept only
the present practices in the plant; (3) that the Respondent would under no circum-
stances agree to anything which would increase its cost in the slightest; and (4) with
p,4rticular reference to the arbitration clause, that no outsider would be allowed to
determine any dispute involving the Respondent. At the end of several hours, the
Union requested the Respondent to prepare a counterproposal for the following
meeting which would be arranged later.
The success of this meeting of January 30 was best described in the words of Scott
who told the union negotiators at the conclusion of the meeting that they "were
butting their heads against a wall," that they were not making any progress and
might just as well adjourn to some future date subsequent to a time when Stewart
could meet with Scott in Fort Worth and work out some of the more objectionable
features of the proposal.
On March 11, as found heretofore, Jesse James had an interview with Woody at
the Respondent's plant during which Woody admonished him during the course of
a discussion of James' membership that, as long as Mr. Harte 4 or the Harte family
had control of Standard-Times, there would never be a contract signed with the
Union.
On or about April 30, Woody informed an applicant for employment with the
Respoiident that the Respondent "would never sign a contract with the Union." On
other occasions around this time both Woody and Foreman O. C. Kirkham reiterated
that statement and added that the Respondent was planning to "get rid" of the union
employees.
The next meeting was held in San Angelo on May 8 when the Union handed the
Respondent its wage proposal calling for the same wages for the stereotypers and
pressmen as were being paid to the employees of the composing room , thus eliminat-
ing the 39 cents per hour differential then existing in favor of the employees of the
composing room . This proposal also contained a clause providing for the payment of
$1 when , an employee was recalled to the plant after finishing his shift . Speaking
for; "the'Respondent , Harte stated that the Respondent "would not consider" the
proposed wage rate as the current wages were all that the Respondent could afford
to pay. He rejected both the recall pay and a night differential on the grounds that
that would increase the Respondent 's costs which could not be done.
The talk then shifted to the case of Jesse James where the Union contended James
had ben refused employment because he held a union card . At this point Scott
told the Respondent that they should not question an applicant for work as to his
union affiliation or lack thereof and that they were not to discriminate against an
applicant because he had a union card.
Next the Union complained that it had been reported that union employees were
allowed to work overtime only on occasions when nonunion employees would not
or coul¬ work. Again Scott told the Respondent that they should see that over-
time was divided as equally as possible and that all the employees, whether or not
they had a union card, should be treated as equally and fairly as possible.
As the meeting was about to break up, the Union requested that the Respondent
prepare a counterproposal based on a standard hourly wage.
At or just after the meeting Scott told Stewart that the differences between the
parties were a question of economics and not of phraseology , and that , when the
parties had gotten to the point where counterproposals would be of benefit in the
negotiations , he and Stewart could draw the necessary articles in 30 minutes in
Fort Worth.
As Harte was absent at the meeting of June 17, Woody acted as Respondent's
spokesman. The meeting itself was short and unimportant, being taken up almost
exclusively with the effects of the changeover from a weekly wage scale to the
hourly wage rate requested by the Union. The Union contended that certain of
its members were receiving less under the newly computed hourly rate than they
4 Annarently a reference to Houston Harte, the owner of the Respondent and father
of Ed Harte.
1102 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
had received formerly. Scott explained to the Respondent 's officials that no employee
should receive a reduction in pay due to this changeover . Thereupon the Union
accepted the new hourly rate as so conditioned . Again the Respondent was re-
quested , but failed , to produce any counterproposals . Again , as the meeting broke
up, the Union requested counterproposals from the Respondent for the following
meeting.
Between then and July 28 , the wage rate was satisfactorily transformed from
a weekly rate to an hourly rate so that the men were receiving the same take-home
pay as before.
The next meeting was held on July 28, when the Union again asked for the Re-
spondent 's counterproposal and was told that there was none. The Union then
presented a new counterproposal of its own modified to eliminate or change certain
of the features to which the Respondent had previously objected . This proposal was
discussed paragraph by paragraph . A difference regarding the recognition clause
was cleared up when the Union accepted the phraseology of the Board certification.
The Respondent objected to the clause in the proposal setting up standards of
employment ( a change from the apprenticeship program originally suggested by the
Union ). Harte insisted upon the Respondent's right to select and train its employees
according to its own standards without regard to the Union as it had in the past.
The Respondent agreed to the no-strike , no-lockout clause which the Union stated
was conditioned upon the inclusion of an arbitration clause. Even though Scott
stated that it was unusual for a company not to desire arbitration because historically
such clauses had been inserted into contracts for the protection of the companies,
Harte refused arbitration insisting that he "would never agree to any clause that
contained a provision whereby an outsider would make a decision concerning the
policies of his company."
On wages, the Union had proposed a journeymen 's scale of $2 per hour for the
day shift and $2.10 for the night shift , the same rate then being paid journeymen in
the composing room , and also a graduated pay scale for trainees over a 6-year period
of training . Harte refused both requests , the first on the basis that the Respondent
was operating in a drought area and would not agree to anything which increased
costs no matter how little, and the second on the ground that wage increases would
continue , as in the past, to be decided on the basis of "merit and seniority " as deter-
mined exclusively and unilaterally by the Respondent . These disagreements remained
undetermined to the end of the negotiations.
The Respondent also objected to the Union 's proposed standard 7-hour day with
overtime only after 40 hours for the reason that the night shift sometimes worked less
than 7 hours. The Union then proposed a 7-hour day for the day shift and a 51/2
or 6-hour day for the evening shift in accordance with figures developed by the
Respondent at the meeting but Harte also rejected this proposal . The Union then
proposed to forego all other contract clauses if granted a standard 7-hour workday
but again Harte refused because he said, contrary to the figures developed , that the
day shift did not always work 7 hours.
Respondent rejected the proposed $ 1 payment in the event an employee was re-
called after the end of his shift as Respondent contended that such payment would
tend to increase costs.
The proposed clauses pertaining to contract duration , vacation , negotiation,
changes or renewals of contract , reductions in force, written statement of reasons for
discharge , and the severability of the contract were accepted by the Respondent.
The proposal contained a clause providing for the insertion of the Union 's bylaws
into the contract . Scott explained to Harte that such inclusion was customary in
newspaper contracts and was so provided in the contract of the Star-Telegram.
Harte, upon being informed that he did not have to accept such a clause, rejected
it stating that the policy of the Star-Telegram and that of the Respondent were
different.
The Union then proposed a wage scale having a top bracket of $1.75 per hour
with the employees placed in the various brackets so as not to increase their then
wages so that there would be no appreciable increase in the Respondent 's costs. The
Union stated that it was making this offer in order to get a uniform scale of wages.
After Scott stated that he had never seen a contract negotiated that did not cost the
company some increase , the Respondent withdrew to caucus. About 15 or 20
minutes later Scott returned and stated that the Company would not accept the propo-
sition, that there was absolutely no flexibility in their attitude toward raising costs
of production , and suggested an adjournment . The meeting adjourned after the
Union had requested that the Company draw up a counterproposal on wages-and
hours.
The next session , held on August 31. was notable for the presence of Attorney
Charles J. Morris, representing the Union. He reiterated at the beginning of the
SAN ANGELO STANDARD , INC. 1103
session the request made in the letter suggesting the meeting that the sessions be con-
tinuous and that the Respondent present a counterproposal . Respondent answered
that it would wait to see how the negotiations were progressing before deciding on
continuous sessions but that its only counterproposal was that it was unwilling to
change the existing working conditions . Scott then reviewed the negotiations to date
for the benefit of Morris. Following a union caucus, the Union proposed that the
present working conditions be written into the contract and that a guaranteed 6-hour
working day be granted or alternatively overtime be paid after 7 hours, pointing out
that as this was the Respondent 's present practice , costs would not be increased. The
Union further proposed that the Respondent 's present sick leave, insurance , hospitali-
zation, and retirement policies be continued as a part of the contract . The Union
dropped its demand for the $1 payment of recall pay and accepted the Respondent's
holiday practice of a short day for holidays.
Scott , speaking for the Respondent , stated that sick leave would begin after 7
days of absence and would continue to the 30th day with the option in the Respondent
to continue it thereafter if it desired. The Union protested that both of these con-
stituted wide departures from the Respondent 's present practice which was to pay sick
leave, commencing immediately and for an indefinite period. There was some dis-
cussion as to whether or not any practice had been established in the stereotype
room since the conversion of the stereotype operators to an hourly wage. Scott
stated that the Respondent had no objection to having the Respondent 's failure to
pay the sick leave become a matter handled under the grievance procedure so long as
it did not become a subject for arbitration and so long as the Respondent 's decision
at the end of the grievance procedure would be final . The Respondent repeated that
it was opposed to arbitration of any kind on principle but would be agreeable to a
grievance procedure so long as the Respondent 's decision would be final with, of
course, the Union having the right to resort to strike action if dissatisfied. The
Union refused to accept the 7 -day delay on payment of sick leave.
The parties agreed upon a 5-hour night shift and a 6-hour day shift and the Re-
spondent agreed to pay overtime on recalls but not the $ 1 payment.
On wages the Respondent stated that it was offering the present scale ranging from
$1.33 to $1 .79 per hour, in which the employees could be moved up according to
merit and length of service at the discretion of the Respondent , as had been the Re-
spondent 's custom in the past. After a caucus the Union proposed a bracketed wage
scale from $ 1.87 per hour to $ 1.37 per hour with all employees so bracketed that no
cost increase would result to the Respondent . Under this proposal the Respondent
was to be given the unilateral right to increase the individual wages within the par-
ticular bracket but could only move a man to a higher bracket after consultation with
the Union . In addition , the Union submitted another proposal with bracketed rates
ranging from $ 1.33 to $1 .89 which would not have increased wages for any employee
and which also gave Respondent the right to increase individuals at will. The Re-
spondent then caucused and sent back word that it was refusing both proposals.
After the conference resumed Scott stated that the Company would not agree to any
wage scale except the present scale of wages , retaining , however, the right to move
employees up at the Respondent 's own discretion within the top figure but before
anyone would be increased beyond that top figure , Respondent would consult the
Union.
The Union objected that most of the union men were in the top bracket while the
nonunion employees were in the lower brackets so that the increases were bound to
go to the nonunion employees. The Respondent stated that the failure of any em-
ployee to receive an increase could be made the subject of a grievance but that no
grievance could be heard in regard to an increase actually granted.
The Respondent agreed to continuous sessions but, as Scott was unable to be present
the following day, the Union decided to discontinue the negotiations until Scott could
be present . It was agreed that in the interim Scott and Morris would exchange
contract proposals.
The next, and last, meeting of the parties occurred Sepember 8 in San Angelo.
The Respondent had no counterproposals . The parties then went over the contract
proposals prepared and presented by the Union on September 4, of which most of
the noneconomic proposals were acceptable to the Respondent after the addition of
such sentences as "The Company shall be an open shop and each employee shall have
the privilege of belonging or not belonging to the Union " and "Employees participat-
ing in such unauthorized work stoppage shall be subject to discipline if the Company
sees fit. including suspension or discharge."
On wages the Union proposed , and the Respondent rejected, the following:
The Company presently has in effect an hourly rate range for employees
within the unit from $ 1.33 to $ 1.79. This rate range will be continued during
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the period of this agreement, and in accordance with the Company's past prac-
tice individual employees may be moved upward within the range in accord-
ance with the Company's judgment of merit and the application of seniority.
Employees who feel that they have not received an increase in wages within the
rate range in accordance with the practice of the Company may present a
grievance and it will be processed and handled under the grievance procedure
provided in this agreement and the Union may represent the employees in all
the stages of such grievance. No employee's rate shall be reduced as a result of
this agreement.
The parties then tentatively agreed upon the phraseology of clauses regarding
hours of work, overtime after 40 hours, overtime on recalls without the $1 bonus,
vacations, grievance procedures, and holidays. There was some disagreement as to
the provision for time limitations for the filing of grievances but this was worked
out to the satisfaction of both parties. At this point the Respondent reiterated its
position that the grievance procedure agreed upon must end without arbitration, that
Respondent's decision must be final.
At this point Respondent offered its first counterproposal which read as follows:
Nothing in this agreement shall be deemed to limit or restrict the Company
in any way in the exercise of the customary functions of management, includ-
ing the right to make such rules not inconsistent with the terms of this agree-
ment relating to its operation as it shall deem advisable, and the right to hire,
suspend, discharge or otherwise discipline employees for violation of such rules
or for other proper and just cause.
The right to select and hire, to discharge or discipline for cause, and to main-
tain discipline and efficiency of employees, and to determine the schedules of
work is recognized by both Union and Company as the proper responsibility and
prerogative of management, to be held and exercised by the Company in a
fair and lust manner, and while it is agreed that an employee, feeling himself to
have been aggrieved by any decision of the Company in respect to such matters,
or the Union, in his behalf, shall have the right to have such decision reviewed
by top management officials of the Company under the grievance machinery
hereinafter set forth, it is further agreed that the final decision of the Company
made by such top management officials shall not be further reviewable by
arbitration.
The Union took the position that this management prerogative clause would be
acceptable in the event that arbitration was made the end result of the grievance pro-
cedure so that there would be some assurance that Respondent's decisions would be
"fair" and "just" but, otherwise, it was unacceptable. Respondent remained adamant.
The Union proposed that the Respondent's present retirement, life insurance, and
educational fund policies as well as its present medical, hospitalization, and retire-
ment plans be written into the contract. Trouble arose, however, because some, if
not all, of these plans contained clauses allowing cancellation, modification, or
amendment of the plan in whole or in part by the unilateral action of the Respond-
ent. The Respondent was agreeable to the retention of these plans or policies pro-
vided that their cancellation, modification, or amendment clauses remained in full
force and effect. Respondent stated that it would not treat the employees in the
unit any differently in regard to such cancellation or modification than it would the
remainder of the employees covered thereunder and that upon modification or can-
cellation of any of these plans or policies, the Union could reopen the agreement in
regard to that particular subject, and further that, if the Union was dissatisfied with
the result of the negotiations, it could strike. The Union argued that unless these
policies attained contract stability for the duration of the contract, the Union was
really getting nothing except an illusory benefit cancelable at the will of the Re-
spondent. The Respondent further objected to the requested contract stability for
these plans and policies during the contract period on the ground that to eliminate
the cancellation and modification features from the policy would in effect be giving
the employees in the unit a veto power over the right of the other employees of
the Respondent. Some of these plans and policies were group policies, some of
which provided for contribution from the Respondent alone and others for contri-
butions from the employees as well as from the Respondent.
Following a recess the Respondent requested a clarification of the Union's posi-
tion on arbitration. Morris explained that the Union was not adamant on arbitra-
tion but that such a clause was presently necessary in order to check the unlimited
discretion granted the Respondent under the terms of the proposed provision per-
mitting it to juggle the economic benefits granted the employees at its sole discre-
tion. The Union stated that it was insisting on arbitration so long as the Respondent
SAN ANGELO STANDARD, INC . 1105
retained absolute discretion over the ecomonic provisions of the contract but, if
the contract definitely fixed the economic benefits thereunder and the Respondent's
sole discretion were eliminated, the Union would reconsider the need for arbitration.
After a long conference by the Respondent, the Union pointed out that there was
substantial disagreement only on those economic matters over which the Respondent
insisted upon retaining unilateral discretion and control but that the Union would
agree to even that if granted arbitration as a means of preventing possible discrim-
inatory action by the Respondent under the terms of the management prerogative
clause . Morris continued that, if the economic benefits of the contract were made
binding for the contract period, the Union would recede from its demand for arbi-
tration . The Respondent thereupon reiterated its position requiring full discretion
through unilateral action over the economic benefits provided for in the contract and
again refused to consider arbitration as the end result of the grievance procedure.
Morris then accused the Respondent of not intending to sign an agreement as the
Union had given in on everything so that substantial agreement had been reached
on all issues but that the Union was not going to sign a conteract with substantially
worse conditions than the employees had enjoyed previously, especially as even
these were withdrawable at the Respondent's discretion without even the protection
of arbitration to prevent discriminatory action. Morris also pointed out that the
contract as proposed by the Respondent would place the employees in a much worse
position than they would be in without a contract because "the Company could use
the contract to beat the men over the head."
In discussing a future meeting Morris stated that, unless the Company was willing
to change its position, he could see no reason for any such meeting as the -Union
has already given in on everything. The Respondent answered that it did not intend
to change its position and that it wished to retain control over all items of an eco-
nomic nature. The meeting ended with Morris inquiring, "why sign a contract in the
first place, if the contract isn't going to tie down what these economic benefits are
and give the Company the right to juggle them as it sees fit?"
Since the end of that meeting, the Union, under date of November 2, requested
a further negotiation meeting for November 16, 1953. The second paragraph of
this letter read as follows:
I have been informed that your Company gave the composing room em-
ployees an increase of 10 cents per hour starting October 7, 1953. 1 am glad
to know that the outlook for your business is better and that there is some
"flexibility" in your operation after all.
The employees in the stereotype and pressroom will expect a comparable
wage increase. With this sort of increase in the cost of your stereotype and
pressrooms, it should be an easy matter to work out a standard hourly wage
for the competent stereotyper-pressman . I honestly request that you and your
representatives be prepared to work with the union representatives towards this
end.
This request was refused on November 4 on the ground that Scott would be
unable to be present in San Angelo before the opening of the hearing in the instant
case which was then scheduled for November 30.
On November 9 the Union replied, suggesting that, as wages were to be the main
topic of the negotiations, a lawyer was unnecessary and reiterating its suggestion
for a meeting for November 16 or 20. Under date of November 16, Harte
answered that Scott's presence was necessary and, while Harte was willing to meet,
he assumed Stewart would be in San Angelo for the hearing when a date for a new
meeting could be arranged.
2. Conclusions
The question posed for determination here is whether the Respondent bargained
in good faith with the Union as the duly certified bargaining representative of its
employees in the appropriate unit comprising the employees of the Respondent's
electrotyping and pressroom. The appropriateness of the unit and the Union's
majority representation therein are unquestioned here. Nor does the Respondent
question the fact that, due to the aforementioned certification of the Union, it
became obligated to bargain collectively with the Union, an obligation presently
defined in the Act as "the performance of the mutual obligation . . . to meet at
reasonable times and confer in good faith with respect to wages, hours, and other
terms and conditions of employment . but such obligation does not compel
either party to agree to a proposal or require the making of a concession."
On the other side of the picture neither the General Counsel nor the Union ques-
tioned the fact that the Respondent was willing to, and did, sit down at the negotia-
3382 07-5 5-vol. 110-71
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion table with the Union on six separate 'occasions over an 8-month period from-
January 30 to September 8, 1953, so that there is, and can be, no contention here
that the Respondent refused "to meet and confer" at reasonable times.
Hence the only question to be determined is whether the Respondent conferred
"in good faith" in regard to wages, hours, and working conditions.
"Good faith" is not specifically defined in the Act. By this very omission Con-
gress adopted the many existing court and Board definitions of that term extant
at the time the Taft-Hartley Act was passed. These decisions indicate that "good
faith" requires the parties to enter upon and conduct negotiations as reasonable
men with the purpose and intent of reaching mutually agreeable solutions to the
problems of wages, hours, and working conditions of the employees presented and
of putting these solutions into written form if requested.
The court in N. L. R. B. v. Shannon & Simpson Casket Co., 208 F. 2d 545, 548
described the Respondent's obligation as follows:
Once a union has been duly certified as the statutory bargainig representative
of a unit of employees, the employer is under a duty to enter into sincere, good
faith negotiations with that union, with an intent to settle the differences and
to arrive at an agreement. N. L. R. B. v. Montgomery Ward & Co., 133 F.
2d 676, 686 (Cir. 9); N. L. R. B. v. Biles Coleman Lumber Co., 98 F. 2d 18,
22 (Cir. 9). Mere pretense at negotiations "with a completely closed mind
and without this spirit of cooperation and faith is not a fulfillment of this duty."
N. L. R. B. v. Reed & Prince Mfg. Co., 118 F. 2d 874, 885 (Cir. 1), cert.
denied, 313 U. S. 595; see also, N. L. R. B. v. American Ins. Co., 343 U. S.
395, 402.
It is necessary to turn now to the facts of the present case in order to determine
if this Respondent fulfilled the "good faith" portion of its obligation to bargain.
While it is interesting to note that the Respondent failed to answer the Union's
original letter requesting a meeting to negotiate a contract, it is perhaps not signifi-
cant in view of the six meetings actually held thereafter.
However, it is significant that in March, after the first negotiation meeting, it is
undenied that William Woody, Respondent 's business manager, and , indeed, its
spokesman at the third of the six meetings, told an applicant for employment that,
so long as the Harte family retained control of the Resopndent, it would never sign
a contract with the Union. Coming from such a responsible member of the Re-
spondent's supervisory hierarchy, such a statement indicates rather conclusively
that the Respondent failed to enter into these negotiations "with the intent to settle
the differences and to arrive at an agreement" as required by good faith. A fore-
man's undenied reiteration of this same statement tends to confirm the Respondent's
determination to prevent the arrival at any agreement as, indeed, does the undenied
intent expressed by these same responsible individuals "to get rid" of the union
employees.
Subsequent events at the bargaining table have made Woody appear more factual
than prophetic in his remarks. At least six times during the negotiations the Re-
spondent's attorney himself appears to have expressed his disapproval of his client's
tactics: (1) His candid description at the end of the first meeting that the Union
"was butting its head against a stone wall"; (2) his instructions to the Respondent
that it was not to discriminate against union men in hiring or in the distribution
of overtime work; ( 3) his evident surprise at the Respondent 's objection to arbitra-
tion as a "matter of principle"; (4) his vain explanation to his client that it was
standard practice in collective -bargaining agreements in the newspaper field to
include therein the Union's bylaws as had been done by another of his clients,
Fort Worth Star-Telegram; (5) his statement that he had never seen a contract
negotiated yet without some increase in costs; and ( 6) his description of the Re-
spondent's stand on economic items as "inflexible."
From the very first of the negotiations to the very conclusion thereof the Re-
spondent's position remained adamant and inflexible: On all matters of hiring,
training , promotions , demotions , wages, hours, and working conditions the Re-
spondent must have the sole and absolute final determination-as it had had in the
past-without interference or check from any source. Respondent insisted on hav-
ing the final determination of grievances without appeal to any impartial source.
This also accounts for the Respondent's objection "on principle" to arbitration.
Nothing was to prevent it from being as arbitrary as it desired to be in its own
determinations . By thus retaining full unilateral control over the above-mentioned
bargainable issues, the Respondent in fact thwarted the statutory guarantee that
these items were the subjects of collective bargaining.
It is true that , except for the economic items, the parties came to agreement on
numerous items proposed for the contract . However , these agreements were reached
SAN ANGELO STANDARD, INC. 1107
because the Union withdrew its own demands and accepted the then practices of
the Respondent . The Respondent conceded nothing. The Act provides that it does
not "compel" agreement or "require" concessions . The very use of these mandatory
words would seem to indicate that a reasonable man might come to an agreement
or even might make a concession . But not this Respondent.
How sincerely did the Respondent desire to reach an agreement9 That can be
tested by the Respondent 's position on the wage question . When the Union proposed
a wage scale for the pressroom employees equal to that of the composing room em-
ployees, amounting to approximately a 30-cent per hour increase in pay, Respondent
refused to "consider" the same because , as it said , being in a drought area it could
not even consider an increase in cost no matter how small. To satisfy this objection
of the Respondent , the Union then proposed a graduated wage scale which would
not have increased the Respondent 's cost by so much as a penny as it was identical
with the wages then being paid by the Respondent . This offer the Respondent
refused on the grounds that it must have the sole right to increase individual wages
as much as it wanted at its own sole unilateral discretion . Such reversal of position
hardly indicates a desire to arrive at agreement.
For some period of time prior to the advent of the Union , the Respondent had
voluntarily provided for pension funds, health and accident policies, sick leave, and
other similar benefits for its employees . During the negotiations the Union proposed
that these same benefits be written into the agreement . Each of these policies
provided for its amendment , modification , or cancellation in whole or in part by
the unilateral action of the Respondent without notice to the employees . Respondent
refused to include these benefits in the contract unless its own unilateral right to
amend, modify , or cancel in whole or in part was expressly retained. In other
words, the Respondent refused to permit these economic benefits to become binding
upon the Respondent for the contract term but insisted upon maintaining its right
to withdraw the same at any time and for any reason it saw fit. Thus , just as it did
in all of the other economic items, the Respondent insisted on making a contract,
if at all, more illusory than real.
Likewise the Respondent was willing to permit the establishment of a grievance
procedure provided that the Respondent 's ultimate decision should be final and
unappealable . Such grievance machinery is hardly more than a delusion. This
was just another illustration of the Respondent 's fixed determination to retain uni-
lateral control over all those questions of hiring , training , promotion , demotion,
hours, wages, and working conditions which , under the Act, are subjects of collective
bargaining . Furthermore it was no mere coincidence that the Respondent failed
to produce the counterproposals requested at each meeting by the Union in its
endeavors to reach an agreement with the Respondent . The Union had abandoned
all its demands and had agreed to accept Respondent 's present practices but the
Respondent refused to even put its present practices into binding or any form.
In this connection it is highly significant that the Respondent finally at the sixth
and last meeting made its only two counterproposals : ( 1) On the question of
payment of sick leave, it proposed to pay sick leave only from the 8th to the 30th
day of illness unless the Respondent itself decided to pay for a longer period of time,
both limitations being innovations and reductions from present practices; and (2) a
broad management prerogative clause, quoted above and taken verbatim from the
American National Insurance Company case ,5 whereby both parties purported to
recognize many bargainable matters to be the sole prerogative of the Respondent.
The above-cited case determined that such a broad management prerogative clause
is a bargainable matter despite its attempt to withdraw matters from collective
bargaining which under the statute are made matters of collective bargaining. It
also affirmed the lower court in holding that the mere proposal of such a management
prerogative clause is not a per se refusal to bargain but that the employer's conduct
is still subject to the general "good faith" test. Here, however, the Respondent's
tactics from the very first session of the negotiations are conclusive that the Respond-
ent would sign a collective -bargaining agreement only if thereby it retained undis-
puted , unilateral , and unappealable control over all bargainable matters pertaining
to hire, training , promotion , demotions , wages, hours , and working conditions. Thus
the proposal of this management prerogative clause at the sixth session was merely
a corltinuation of the Respondent 's determination to retain such unilateral control
notwithstanding the express provisions of Section 8 (a) (5) of the Act. The Re-
spondent 's actions and its proposals justified the Union's claim made at the very
conclusion of the sessions that the Respondent never intended to sign a contract
with the Union unless it could use that contract to "beat the employees over the
6 343 U. S. 395 , affg. 187 F. 2d 307 (C A 5).
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
head" with it and that the employees would be worse off with a contract than
without one.
On the other hand , the Respondent made much of the fact that it was the Union
which finally broke off the negotiations at the final session . The Union did break
off the negotiations at this time after being informed that the Respondent "didn't
intend to change its position and that it wished to maintain control over all the
items of an economic nature which had been discussed ." With such a positive
statement of position as that , further negotiations were bound to be fruitless and
futile . The law does not require the performance of futile acts.
Respondent had authoritatively declared at the very outset of negotiations that
it would never sign a contract with the Union . Its actions thereafter amply prove
the truth of its assertion . As it is obvious that the Respondent never intended to
agree to or to execute a binding contract with the Union from the very outset of the
negotiations , it is clear that the Respondent has failed to fulfil the requirements of
good-faith bargaining from at least March 11, 1953, when it originally made the
above-quoted statement . The Trial Examiner , therefore , finds that the Respondent
has failed to bargain in good faith with the Union since March 11, 1953, in violation
of Section 8 (a) (5) and ( 1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in
connection with the operations of the Respondent described in section I, above,
have a close , intimate , and substantial relation to trade, traffic , and commerce among
the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
It having been found that the Respondent discriminated in regard to the hire and
tenure of employment of Jesse James on March 11 , 1953, by refusing him employ-
ment, the Trial Examiner will recommend that the Respondent offer to Jesse James
immediate employment in the position he sought or a substantially equivalent one
without prejudice to his seniority or other rights and privileges , and make him whole
for any loss of pay he may have suffered by reason of said discrimination by pay-
ment to him of a sum of money equal to that which he would have earned as wages
from the date of the discrimination against him to the date of the offer of employ-
ment less his net earnings during such period , in accordance with the formula set
forth in F . W. Woolworth Company, 90 NLRB 289.
It having been found that on March 11 , 1953, and at all times thereafter, the
Respondent refused to bargain collectively with International Stereotypers & Electrp-
typers Union of North America, AFL, it will be recommended that the Respondent,
upon request , bargain collectively with said Union.
In the opinion of the Trial Examiner, the unfair labor practices , committed by
the Respondent in the instant case are such as to indicate an attitude of opposition
to the purposes of the Act generally . In order, therefore , to make effective the
interdependent guarantees of Section 7 of the Act , thereby minimizing industrial
,strife, which burdens and obstructs commerce , and thus effectuate the policies of
the Act , it will be recommended that the Respondent cease and desist from infringing
in any manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record, the
'Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Stereotypers & Electrotypers Union of North America, AFL, is
a labor organization within the meaning of Section 2 (5) of the Act.
2. All employees in the stereotyping and pressroom department of the Respondent
at its San Angelo plant, exclusive of the day foreman, night foreman, office and
clerical employees , professional employees , guards and watchmen , all other em-
ployees, and all other supervisory employees constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (c) of the Act.
3. At all times since December 18, 1952, the Union has been, and now is, the
exclusive representative of all the employees in the aforesaid appropriate unit for
the purposes of collective bargaining within the meaning of Section 9 ( a) of the Act.
GENERAL ELECTRIC COMPANY 1109
4. By failing and refusing on, and at all times since, March 11, 1953, to bargain
collectively with International Stereotypers & Electrotypers Union of North America,
AFL, as the exclusive representative of the employees in the aforesaid appropriate
unit, the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (5) and (1) of the Act.
5. By refusing employment to Jesse James on March 11, 1953, thus discriminating
in regard to the hire and tenure of employment of said Jesse James thereby dis-
couraging membership in International Stereotypers & Electrotypers Union of North
America, AFL, the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (3) and (1) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair practices within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
GENERAL ELECTRIC COMPANY' and INTERNATIONAL UNION OF ELEC-
TRICAL, RADIO AND MACHINE WORKERS, CIO 2 and UNITED ELECTRI-
CAL, RADIO AND MACHINE WORKERS OF AMERICA (UE) ; AND LOCAL
937, UNITED ELECTRICAL, RADIO AND MACHINE WORKERS OF AMERICA
(UE). Case No.7 CA--817. December 2,1954
Decision and Order
On January 29, 1954, Trial Examiner Earl S. Bellman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, all the parties filed exceptions to the
Intermediate Report. The General Counsel, the IUE, and the UE
filed supporting briefs.3
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations with the following modifications.
We agree with the Trial Examiner that the Respondent did not
violate Section 8 (a) (1) and (2) of the Act by the following conduct
which occurred during the pendency of representation proceedings
involving the Respondent's Detroit Apparatus Service Shop, herein
called the Detroit Unit : The Respondent's failure on June 17, 1952,
to forestall the automatic renewal of its national agreement of 1950
with the UE, the incumbent Union ; amending the said contract on
3 Herein called GE.
2 Herein called IUE.
8 However, the UE subsequently withdrew its exceptions and part of its brief.
110 NLRB No. 182.