Shovel Supply Co., Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1966

162 N.L.R.B. 460 (N.L.R.B. 1966)

460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining within the meaning of Section 9(b) of the Act ; and WE WILL,
if an understanding is reached , embody any such understanding in a signed
agreement.
WE WILL NOT, by any refusal to bargain, interfere with , restrain , or coerce
our employees in the exercise of their right to organize ; to form, join, or
assist a labor organization ; to bargain collectively through a bargaining agent
chosen by themselves ; to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection ; or to refrain from
any such activities ( except to the extent that the right to refrain is limited by
the lawful enforcement of a lawful union security requirement).
Dated-------------- ----- By-------------------------------------------
(Representati ve) (Title)
UNITED INSURANCE COMPANY OF AMERICA,
Employer.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 1700
Bankers Securities Building, Walnut and Juniper Streets, Philadelphia , Pennsylvania
19107, Telephone 597-7617.
Shovel Supply Company , Inc. and International Union of Electri-
cal, Radio and Machine Workers, AFL-CIO. Case 16-CA-9504.
December 30, 1966
DECISION AND ORDER
On August 22, 1966, Trial Examiner Josephine H. Klein issued
her Decision in the above-entitled proceeding, finding that the
Respondent has engaged in and is engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent filed exceptions
to the Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following modification :1
1 The charge herein was filed on October 29, 1965 . Section 10 ( b) of the Act prohibits
finding violations based on conduct which occurred more than 6 months before the filing
of unfair labor practice charges. In this Instance that date would be April 29, 1965.
Accordingly , and contrary to the Trial Examiner ' s finding that Respondent failed to
bargain In good faith from on or about April 16 , 1965, we find that such failure occurred
on and after May 7, 1965, the date of the parties ' second bargaining meeting.
162 NLRB 43.
SHOVEL SUPPLY COMPANY 461
We agree with Respondent that the Trial Examiner's Recom-
mended Order should not be adopted in its entirety. We believe that
in the circumstances of this case the Board's customary cease and
desist provisions, where an employer has been found to have failed
to bargain in good faith in violation of Section 8(a) (5) of the Act,
will suffice to remedy Respondent' s unfair labor practices herein
found.
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Delete paragraphs 1(b), 1(c), 1(d), 1(f), 2(b), and 2(c) from
the Trial Examiner's Recommended Order.
[2. Delete the second, fourth, and sixth indented paragraphs from
the Appendix.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on October 29, 1965, by International Union of Electrical,
Radio and Machine Workers, AFL-CIO ( the Union ), the General Counsel issued
a complaint on December 30, 1965, alleging that, since on or about April 16, 1965,
Shovel Supply Company, Inc. (Respondent ) has violated Section 8(a)(5) of the
National Labor Relations Act by refusing to engage in good-faith bargaining with
the Union , which on March 31 , 1965, had been certified as the exclusive bargaining
representative for Respondent's employees in the unit involved . The complaint also
alleged that on or about December 23, 1965, Respondent further violated Section
8(a)(5) by unilaterally granting its employees holiday pay for December 24 and
25, 1965.
Upon due notice, a hearing was held before Trial Examiner Josephine H. Klein
on February 28 and March 1, 1966, in Dallas, Texas. All parties were represented
and participated fully in the hearing . At the close of the hearing , I set April 4,
1966 , as the final date on which briefs might be filed . In response to a request by
Respondents , that time was extended to April 25, 1966.
On April 22, 1966 , the General Counsel moved to reopen the record for the
receipt of evidence concerning facts occurring since the close of the hearing. That
motion was granted and a notice of further hearing was issued . Thereafter , however,
the parties entered a stipulation concerning the relevant posthearing facts. The
stipulation , which has been received as an exhibit in lieu of additional hearing,
reads in part:
. . . all parties to this proceeding agree that reference to this exhibit may be
made in all briefs, and in all respects this stipulation is to be treated as any
other Exhibit of Record.
Briefs have since been received from the General Counsel and Respondent.
Upon the entire record in this case , from observation of the witnesses, and on the
consideration of the briefs , I make the following:
FINDINGS OF FACT
1. PRELIMINARY FINDINGS
The complaint alleges, Respondent admits, and I find:
(a) Respondent is a Texas corporation engaged in the manufacture , sale, and
distribution of earth moving equipment and related products . During the past year,
a representative period , Respondent shipped products valued in excess of $50,000
from its plant in Dallas, Texas, directly to points outside the State of Texas. During
the same period , Respondent received at its plant in Dallas, Texas, goods and mate-
rials valued in excess of $50 ,000 directly from States other than Texas. Respondent
is now, and has been at all times material herein , an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) The Union is, and has been at all times material herein, a labor organiza.
tion within the meaning of Section 2(5).
(c) On March 31, 1965, pursuant to a Board election held on March 23, 1965,
the Union was duly certified as the exclusive collective-bargaining representative of
Respondent's employees in the unit here involved. At all times since March 31,
1965, the Union has been, and is now, the exclusive representative of the employ-
ees in the unit involved for the purpose of collective bargaining with respect to
rates of pay, wages, hours of employment, and other terms and conditions of
employment.
H. THE UNFAIR LABOR PRACTICES ALLEGED
A. Prehearing conduct
1. Facts
The Union won an election on March 23 and was certified on March 31, 1965.
Its demand for bargaining was sent to Respondent on April 1.
The first bargaining session, held on April 16, was a short one. Part of the
Union's proposed contract was discussed, item by item, but apparently no substan-
tial agreements were reached. At the second meeting, held on May 7, 1965, nego-
tiation was commenced on the basis of Respondent's counterproposals, which served
as the basis of all subsequent negotiations. There were a total of 11 negotiating
sessions, the last being held on October 1, when the parties met with a representa-
tive of the Federal Mediation and Conciliation Service.
By some time around the end of August, agreement had been reached on a
number of provisions. At that time, Respondent prepared a draft contract embody-
ing all the items agreed on and leaving blank spaces for the provisions still in dispute.
The major stumbling blocks at that time were disagreement as to management-
rights clause and the Union's demands for paid vacations, premium pay for work
on the sixth and seventh consecutive days, time and a half for all work in excess of
8 hours in any 1 day, jury pay, and paid leave for death in the family. For present
purposes, consideration is focused on Union's demands listed above.
Early in the negotiations, Mr. W. A. Ford, director of the Union and its chief
negotiator, stated that the items listed were most important; that no contract with-
out these items could secure the requisite approval of the International Union. Par-
ticular importance was attached to the demands for paid holidays and time and a
half for work in excess of 8 hours in any day. Respondent refused to meet these
demands in any part. According to Ford's testimony, Respondent based its refusal
to make concessions on these points on "convictions" held by the Company's presi-
dent, Mr. L. C. Ferguson, Sr.' Ford's testimony in this connection, addressed spe-
cifically to the question of paid holidays, was as follows:
Well, Mr. Ferguson, Sr., L. C. Ferguson, had some pretty firm convictions
about that he wasn't going to give anybody any holidays or he wasn't going
to pay anybody for any time that they didn't work, and that he was not going
to agree to any holidays of any description. . . . He would agree with the
holidays, but without pay.
The Union's original contract proposal listed 8 holidays, including Christmas Eve
and Christmas Day. However, this proposal never was the subject of real bargaining.
Actual bargaining appears to have started from 6 holidays? During the negotiations,
the Union reduced the number of paid holidays, it was demanding. According to
Ford, he reduced his demand to as low as 1 paid holiday; Respondent's representa-
tives testified that Ford came down only to 4 holidays. The conflict is unimportant,
since Respondent remained adamant against providing any paid holidays or any
other form of pay for time not worked.
'Ferguson had been the "chief executive officer and head of the Dallas plant" of the
partnership which preceded the present corporate Respondent. See 118 NLRB 235, 238,
enfd. 257 F 2d 88, In which the partnership was found to have violated Section 8(a) (3)
and (1). Ferguson is the dominant figure in the present company but did not testify in
this case
2 The testimony spoke in terms of an original list of 6 holidays. However, Respondent's
first and final written proposals listed 5 holidays without pay and the Union's last
written proposal listed the same 5 days as paid holidays : New Year's Day, Fourth of
July, Labor Day, Thanksgiving Day, and Christmas Day.
SHOVEL SUPPLY COMPANY 463
The Union then said that as a compromise, it would take a wage increase, which
it would apportion to the various items in dispute. According to Ford, on this basis
the Union would demand a total increase in the neighborhood of 20 to 25 cents
per hour. At this point Respondent offered an across-the-board increase of 3 cents
per hour, which the Union immediately rejected. At the meeting of October 1, 1965,
with the participation of the Federal Mediation Service, the parties stuck by their
prior positions, but Respondent raised its monetary offer to 5 cents per hour if the
Union would accept the contract as written by Respondent. The Union rejected the
offer.
No further bargaining meetings were held. The Union filed its charge with the
Regional Director on October 29, 1965. The charge alleged refusal to bargain "On
or about October 1, 1965."
On or about November 30, 1965, the Union sent Respondent a new draft of a
proposed contract. In this version, the Union had provided the following specific
amounts of hourly wage increases in lieu of its original demands:
Cents per hour In lieu of
6 --------------------------------- paid holidays
2 --------------------------------- time and a half on 6th day
2 --------------------------------- time and a half on 7th day
3 --------------------------------- 3 days death in the family leave
1 --------------------------------- jury pay
The Union had eliminated its demand for time and a half for any work in
excess of 8 hours on any 1 day. In an accompanying letter, Ford said, "After these
proposed concessions have been granted, the Local and the International would
want a 10 cent an hour increase across-the-board."
So far as appears, Respondent did not directly reply to this union letter and
proposal. Instead, on or about December 13, 1965, it sent Ford a draft of the con-
tract it was then offering.3 Ford made no immediate reply because, as he testified,
the new draft "was nothing more than a reproduction of the original proposal the
company had proposed. . . . It was nothing in the world more than a re-draft of
what you already had." Comparison of the two drafts bears out Ford's statement;
except for changes agreed upon (which are discussed infra, II, A, 2, 6), Respond-
ent's last offer was substantially the same as its first.
On December 23, 1965, without any prior notice to or communication with the
Union, Respondent paid the employees for a full day on Christmas Eve at straight
time and for 5 hours at time and a half for Christmas Day.4 On neither of these
2 days did the employees work.
The present complaint was filed on December 30, 1965. On or about Febru-
ary 10 , 1966 , apparently at the request or suggestion of Board representatives, Ford
telephoned Malone, Respondent 's counsel , and summarized the concessions which
the Union was ready to make. He stated that the Union was prepared to take 4
instead of 6 paid holidays and 2 instead of 3 days death in the family leave. Fur-
ther, the Union would drop its demands for jury pay and a dues checkoff. Ford
also agreed that he would submit a shortened management right 's clause . With these
concessions , the Union then wanted a 10-cent across-the -board wage increase.
Malone agreed to discuss the matter with other representatives of Respondent and
report back to Ford, but, up to the time of the hearing, he had not been in touch
with Ford .5 There were no further negotiations or discussions before the hearing
in this case.
2. Discussion and conclusions
a. Unilateral grant of holiday pay
Respondent's unilateral grant of pay for Christmas Eve and Christmas Day,
which were observed as holidays, was clearly violative of Section 8(a)(5) and (1).
The result is the same whether it be called "holiday pay" or a "Christmas present,"
3 This proposal was introduced by Respondent in the course of cross -examining Ford.
Counsel produced a document which he stated was a covering letter to Ford. Ford was
unable to identify it as having been received and it was not introduced in evidence.
4 A. payroll check stub of one employee shows that Christmas Eve was included in
"regular time ," while Christmas Day was shown as "overtime "
5 This despite the fact that Malone had erroneously understood Ford as having agreed
to relinquish the Union 's demand for time and a half for work in excess of 8 hours in
any day.
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which Respondent chooses to call it. The fact is that the unilateral grant of such
benefit to employees who are represented by a bargaining agent violates the employ-
er's statutory duty to bargain. Werstein's Uniform Shirt Co., 157 NLRB 856;
American Sanitary Products Co., 157 NLRB 437.6 That Respondent had not commit-
ted itself to a continuing policy of granting paid holidays does not change the legal
conclusion. Cf. Stafford Trucking, Inc., 154 NLRB 1309.
Respondent's unilateral grant of holiday pay, which Respondent had adamantly
refused to grant on the Union's request, clearly would tend to undermine the right
of self-organization "by emphasizing to the employees that there is no necessity for
a collective bargaining agent." May Dept. Stores Co. v. N.L.R.B., 326 U.S. 376, 385.
b. Alleged bad-faith bargaining
Whether Respondent violated its statutory obligation to bargain in good faith, as
alleged in the complaint, must be decided largely on the basis of circumstantial
evidence concerning the totality of its conduct. N.L.R.B. v. Reed & Prince Mfg.
Co., 205 F.2d 131, 139 (C.A. 1), cert. denied 346 U.S. 887. While it is true,
generally speaking, that an employer is not required to make concessions on par-
ticular union demands in order to avoid a finding of bad-faith bargaining, and it is
not the Board's function to compose differences between the parties, the nature
and extent of his concessions made and the reasonableness of his positions are
indicative of his mental state, which in the last analysis, is the decisive fact in cases
such as this. Texas Coca-Cola Bottling Co., 146 NLRB 420, enfd. 365 F.2d 321,
(C.A. 5), and cases there cited; United Steelworkers, AFL-CIO v. N.L.R.B., 363
F.2d 272 (C.A.D.C.); East Texas Steel Castings Co., 154 NLRB 1080. Under the
well-established standards set forth in the cases cited, for the reasons hereinafter
set forth, I have concluded that from on or about April 16, 1965, Respondent
engaged in dilatory tactics and bad-faith bargaining, in violation of Section 8(a)(5)
of the Act, as alleged in the complaint.
Respondent made no concessions on any of the issues which, from the beginning
of the negotiations, the Union had indicated were its most important demands.
Ford, the Union's representative, testified that during the negotiations L. C. Fergu-
son, Sr., Respondent's president and dominant figure, expressed his unalterable
"conviction" against granting pay for any time not worked. Respondent has not
suggested any other basis for its intransigence.
The record belies any contention that Respondent's unyielding position was
grounded in good faith on a matter of principle. It appears that in the past, with
Ferguson at the helm, the Company had paid "year end bonuses," which, according
to the uncontradicted testimony of one employee, were paid "usually on the time
that we took off for Christmas." 7 Further, the Company had regularly granted
paid vacations, which clearly constitutes pay for time not worked. Additional, so
far as appears, Respondent refused to consider the Union's offer to take a wage
increase in lieu of holiday pay. Finally, the plausibility of Ferguson's "conviction"
as an explanation for Respondent's adamant position concerning paid holidays
completely evaporated when Respondent unilaterally granted pay for the Christmas
holidays in 1965. Respondent expressly disclaimed economic inability as the basis
of its refusal to agree to paid holidays.
Respondent's brief makes clear that the real reason for Respondent's position
concerning paid holidays was its desire to retain the "right" to take unilateral action
in this connection, as it did on Christmas 1965.8 In other words, Respondent was
demanding the right to grant or withhold paid holidays at will, unilaterally, as it
did for Christmas in 1965.
Respondent's adamant refusal to consider any contractual provision for paid
holidays, without giving any reasonable explanation for its position, was clearly
bad-faith bargaining, since the Company knew that such position would in all prob-
6 The violative nature of this conduct is not mitigated by the fact that Respondent's
counsel, who was also a member of its negotiating committee, had been consulted and told
Respondent "to go ahead and do it."
7 This fact was adduced on cross-examination by Respondent's counsel after the witness
had testified on direct examination that in his 9 or 10 years in Respondent's employ he
had never received a paid holiday
6 The brief says : ". . . The company did give its employees a Christmas present in
1905, but it did not establish a policy of granting holiday pay by so doing There was
and has been no change in the company policy regarding holiday pay. . . . Does the
General Counsel suggest that the company rescind the Christmas present?"
SHOVEL SUPPLY COMPANY 465
ability prevent the consummation of any agreement. George E. Seay, Esquire,9 who
participated in some of the negotiations on behalf of Respondent , testified as
follows:
Q. Have you ever negotiated a contract without provision for paid holidays?
A. No, sir, I never have, that is, where I got agreement from the union. I
have had some where they didn't offer a paid holiday, but we didn't get an
agreement.
This testimony casts some doubt on Seay's good faith in contending, at the bargain-
ing sessions in August, that the question of paid holidays should be postponed to
the end of the negotiations, to be decided with the other "economic" issues. If
Respondent was (as it maintains it still is) firmly resolved not to grant paid holi-
days, and Seay believed that no agreement could be reached without some provision
therefor, his suggestion that the issue be deferred to the end of the negotiations
could serve the purpose only of prolonging the matter, with Respondent thus creat-
ing a semblance of bargaining while knowing that no agreement would be reached.io
Cf. Rhodes-Holland Chevrolet Co., 146 NLRB 1304, 1305, 1316-17.
Similarly, Respondent's purported objections to any provision for time and a half
for work in excess of 8 hours in any day bear the indicia of bad faith. The evidence
shows that Respondent's plant regularly works overtime. Respondent's representa-
tives purported to fear that if the employees were paid premium pay for any work
during the early part of a week, they might then absent themselves toward the end
of the week. However, Respondent's witnesses conceded that they had no knowl-
edge of any such problem having arisen in plants which pay time and a half for
work in excess of 8 hours in any day, as is required under the Walsh Healey Act
(41 U.S.C. 35). Further, they failed to consider the fact that the Union had made
concessions concerning Respondent's proposed contract terms requiring employees
to work overtime on request, subject to stringent disciplinary action for refusal, and
providing for discharge for absence of 1 day without a valid excuse.
It bears repeating that I am not suggesting that Respondent was required to yield
to these demands by the Union. However, the unsubstantiality of the reasons given
for their rejection leads me to conclude that Respondent's position is motivated pri-
marily by a desire not to reach an agreement.
Although Respondent's brief states that "Respondent supported the rejections [of
the Union's demands] by reasonable argument," the record is barren of any rea-
sons for most of the rejections. Indeed, Charles M. Smith, one of Respondent's
negotiating team, affirmatively testified that Respondent gave no reasons for its posi-
tion on several items, including its opposition to the Union's proposals for night-
shift differential; washup time; Respondent's providing work tools, clothes, and pro-
tective items; sick leave; hourly pay setup for lost time due to accident; and pay for
the entire day on which an employee was injured. Respondent's brief provides no
elucidation, disposing of the matter with the statement that "No purpose will be
served by reciting herein the specific reasons why the company did not agree with
specific Union demands. . Certainly, the company's arguments cannot be termed
unreasonable." I find, on the present record, that Respondent has failed to provide
any support for many of its positions. The picture of arbitrary conduct which results
belies any good-faith desire to reach an agreement." Southwestern Porcelain Steel
Corp., 134 NLRB 1733, 1742, enfd. 317 F.2d 527 (C.A. 10).
In its brief, Respondent contends that its original contract proposal embodied "ini-
tial concessions in an attempt to reach a contract." 12 The Respondent's first con-
tract proposal was presented as a complete counterproposal to the one originally
9 Seay is the partner of Malone, who represented Respondent in the negotiations and
through the hearing in this case.
10 The suggestion that the question of paid holidays be deferred until all noneconomic
provisions had been agreed on appears inconsistent with Respondent's offer of a wage
increase of 3 cents per hour on August 27, which it raised to 5 cents on October 1, 1965.
n A glaring example of what, in the absence of any attempted explanation appears an
arbitrary position designed as a roadblock to an agreement is Respondent 's insistence
that vacation pay not be paid until the first regular payday after the employee's return
from vacation.
12 The items referred to are said to constitute "concessions because they represented
changes from past company practice " No record references have been supplied, and
I have found no clear evidence as to Respondent 's past practices on most of the matters
specified.
264-047-67-vol. 162-31
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
presented by the Union. It did, as Respondent states, contain provision for seniority
and a grievance procedure (including "recourse for any alleged unjust disciplinary
discharge"). While these two items are, to be sure, extremely important, it is diffi-
cult to consider them great "concessions ," since the Union could hardly serve its
function as a collective-bargaining agent for the unit employees without providing
them the minimum job protection provided by some form of seniority and grievance
procedures. Respondent's first counterproposal also did provide that the Union
could provide a bulletin board, at a place designated by Respondent, for notices of
meetings; all other notices to be posted had to be approved in advance by Respond-
ent.13 Respondent also lowered from 3 to 2 years the length of service required for
a 2 weeks' vacation. The Union's proposal had not requested this; instead, the
Union had requested a 3 weeks' vacation after 5 years, and 4 weeks after 10 years.
Respondent's proposal also provided that vacation pay would be paid if an employee
died or was discharged after the vacation had accrued but before it was taken. And,
finally, Respondent's brief refers to a report-in pay provision as a "concession"
included in its original proposal. It provided for 1 hour's reporting pay, whereas the
Union's proposal contract had called for 4 hours call-in pay and 8 hours reporting
pay.
Although it made no major concessions on the Union's important demands,
Respondent's first counterproposal was not on its face a bad-faith offer. Had it been
presented as a "hard" initial position from which to bargain, no violation of the
Act would be found. But it could not, in itself, be said to embody substantial con-
cessions calculated to arrive at an agreement, particularly in view of other terms,
such as management's having the unqualified right to contract out any or all of the
unit work or have such work done by nonunit employees. The subsequent course of
the negotiations demonstrates that Respondent did not approach the bargaining
table with any desire to reach agreement.14
In its brief, Respondent then sets forth, without explanation or discussion, three
lists of changes from its original proposal which were made in the course of the
negotiations. In Respondent's words, these enumerations are provided to "demon-
strate the considerable lengths the Respondent went to in an effort to reach an
agreement with the Union."
The following is an item-by-item summary of the written changes listed by
Respondent:
(1) Respondent agreed to eliminate from the recognition clause of its proposed
contract the statement: "and it is further agreed that members of the Union
will render to the Company diligent and efficient services." Respondent pre-
sented no explanation for its originally including this provision. Its omission
could be a "concession" on Respondent's part only it had been designated to
serve some undisclosed purpose, such as giving Respondent a colorable ground
to contend that a particular union member's alleged "lack of diligence" or
"inefficiency" constituted a breach of the agreement. Discipline of employees
was specifically provided for in other portions of the proposed contract.
(2) and (3) Respondent's original proposal called for time and a half on the
sixth [and seventh] day[s] in any week if an employee had worked "his regu-
lar shift for five or six days of that work week." In Respondent's final written
version, the quoted language has been changed to read "forty (40) hours in that
work week." This change could hardly be called a "concession," since the
revised language provided simply for what was already required by the Fair
Labor Standards Act (29 U.S.C., §207(a)(1)), i.e., time and a half for any
is Ford testified that Respondent later agreed to provide the bulletin board. But Re-
spondent's last written version of the proposed contract did not embody this change
14 Even if Respondent's first proposal had been made in good faith the Decision here
reached would be the same See Houston Sheet Metal Contractors Assn , 147 NLRB 774,
777: "Although the record indicates that Respondents may have initially approached
the bargaining table with a sincere desire to reach agreement, we are also convinced
that subsequent conduct showed a marked absence of good faith within the meaning of
the Act."
Finding that "Respondent engaged in a course of conduct, the totality of which failed
to comply with the statutory requirement of good-faith bargaining," I conclude that
Respondent's violation commenced on April 16, 1965, when the first bargaining session
was held. California Girl, Inc, 129 NLRB 209, footnote 3; Cabinet Manufacturing Co ,
140 NLRB 576, footnote 2, Stevenson Brick and Block Co, 160 NLRB 198.
SHOVEL SUPPLY COMPANY 467
hours over 40 in any week . 15 The Union 's original proposal called for time and
a half for Saturdays and double time for Sundays as such.
(4) Respondent 's original proposal provided that the first time an employee
refuses to work overtime when requested , "he may be given a disciplinary lay-
off of two days , without pay , and for the second refusal he will subject to dis-
charge." Respondent thereafter "changed" this provision by adding the follow-
ing sentence : "If, in the opinion of Management , the employee has a legitimate
excuse for his refusal the Company may waive the layoff." Whether or not this
addition has the effect (which it appears to have ) of making discharge for a
second refusal mandatory , it can hardly be said to constitute any "concession"
to the Union ; the layoff provision Respondent originally proposed was stated
permissively and the addition merely made it clear that the matter was entirely
within Respondent 's discretion.
(5) Respondent changed its original proposal concerning job classifications by
adding a provision that in preparing the schedule , "the Company reserves the
right to require aptitude tests for said classifications ." It is a great understate-
ment to say that the Union did not consider this change to be a "concession" by
Respondent . According to Mr. Smith , after Respondent had added the provi-
sion for aptitude tests, the Union sought to have it limited to future employees,
but Respondent would not agree to any such restriction.
( 6) Respondent added a provision for preparation of a vacation schedule.
Respondent did not accept the Union 's suggestions that preference as to vaca-
tion be given on the basis of seniority and that the schedule be established by
mutual consent.
(7) Respondent agreed to the Union 's request that the grievance procedure be
revised to provide that the arbitrator would have 30 days within which to ren-
der his decision rather than the 5 days which Respondent had originally pro-
vided.16 Since 5 days is so obviously unrealistic , 17 this concession can hardly
be deemed a major one , if Respondent 's original proposal was a good faith
offer. (As is discussed below, section B, Respondent has since attempted to
withdraw its agreement to any arbitration as part of the grievance procedure.)
(8) and ( 9) Respondent agieed to increase reporting pay from one hour to
two hours.
(10) Respondent agreed to reduce the "probationary " period for a new
employee from 150 to 90 days. The Union 's original proposal called for a 30-
day period.
(11) In the course of the negotiations , the seniority provision was changed by
the addition of a provision for posting of the seniority list on the bulletin board
for employees to check. However , there is no provision , as requested by the
Union, for employees to protest the list before it becomes final. Further,
Respondent 's original commitment to provide a revised list every six months
was deleted . The Union 's original proposal had called for Respondent's pro-
viding a list of changes every month.
(12) Respondent agreed to increase from 24 to 48 hours the time within a
laid-off worker is required to report after being recalled.
(13) Respondent agreed to increase from 3 to 5 days the time within which a
discharged or laid-off employee may make a written grievance to the Griev-
ance Committee or the Union.
(14) Respondent 's original proposal provided that any employee could be
required to undergo physical examinations by doctors selected by Respondent.
Respondent thereafter agreed that if the Union felt an injustice had been done,
the employee could be examined by another doctor chosen and paid by the
Union, and if the two doctors disagreed , they would secure a third, whose
decision would be binding. While making this concession to the Union,
Respondent added a provision giving the company the right to require poly-
graph examinations at any time , not only as a prerequisite to employment, as
' Smith , Respondent 's representative , testified that in its original proposal the Com-
pany "definitely agreed to time and a half for anything in excess of 40 hours in a week "
16 At first , Ferguson , Senior , would agree to increasing the time only to 10 days, but
counsel prevailed on him to raise it to 30 and kept this despite Ferguson 's subsequent
attempt to reduce it to 20.
17 That Respondent 's president was committed to rendering his decision on a grievance
within 5 days does not establish that any such restriction could be imposed on impartial
arbitrators.
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been originally provided. The change in this section was hardly a substan-
tial net gain to the Union.
(15) Respondent agreed to add one toilet to each restroom.
(16) The original proposal provided for automatic annual renewal of the con-
tract unless either party gave 60-day notice "of its desire to terminate same."
This language was amplified to provide for a party giving notice "of its desire
to change, modify or terminate same." (underscored words were added). This
change was simply clarifying and made no substantive change in meaning.
Although it was suggested by the Union, it cannot be viewed as any "conces-
sion" by Respondent.
To the foregoing list of changes made in the written contract proposal, Respond-
ent's brief adds reference to 3 changes "made by notation in negotiations." These
changes were:
(1) Leave without pay for death in the family. This provision (which is not
included in Respondent's last proposal) hardly constitutes any great concession.18
(2) Two ten-minute rest periods per day. This "concession" has not been
incorporated in Respondent's December versions of the contract. It might be
noted that the company rules submitted by Respondent provided for 1 rest
period per day. Although the Union's original contract proposal called for 2,
the abbreviated set of rules the Union later submitted accepted Respondent's
provision for 1 rest period per day.
(3) Statement that the present insurance program would remain in effect Mr.
Smith testified that this committment was made in writing at the meeting on
August 27. However, the version of the contract' Respondent sent to the Union
in December contains no reference to insurance, despite the fact that Mr. Ford
had previously objected to this deficiency in Respondent's original proposal.
The claimed "concession" was in response to the Union's suggestion that it
might like to investigate the possibility that a better insurance plan might be
available. Respondent, however, did not even inform the Union of the cost of
the existing plan to Respondent.
Finally, Respondent's brief lists 6 "changes . . . made by the company":
(1) Elimination of a proposed provision permitting Respondent to put jobs on
a piece rate basis. Significantly, however, the Union had accepted the original
provision on this subject, and it has not been eliminated from the last written
version of the proposed contract which Respondent sent to the Union in
December.
(2) Respondent did agree to eliminate "attitude, ability to get along with peo-
ple and willingness to work" as qualifying factors in promotions, etc. Since
"ability and qualifications to perform the work skillfully and efficiently" is
retained as a factor, and the company alone is given the right "to apply and
determine" that factor, it cannot be said that it has relinquished much by elim-
inating reference to personality factors, unless its original proposal amounted to
an undisclosed attempt to secure a protective umbrella for arbitrary action.
(3) Respondent claims to have added a provision making discharges for mis-
conduct "subject to grievance procedure." Its final written version of the con-
tract, however, does not contain the announced provision. In any event, as
Mr. Charles Smith, one of Respondent's negotiators, testified, it would be super-
fluous because from the beginning there had been a separate section applying
the grievance procedure to "Any employee who is discharged or laid off for
disciplinary reasons and who wishes a hearing concerning such discharge or
layoff."
(4) Respondent states that it agreed "to first submit the company working and
safety rules to the Union." Mr. Smith, for Respondent, testified that his com-
mitment was written into the contract in a meeting on August 27. However, the
written version sent to the Union in December provides, in this regard, only
that Respondent shall have the right-
To establish safety and working rules and penalties for violation of said
rules; provided, however, Company shall not establish any rules which
are in violation of any of the terms or provisions of this Agreement.
18 Particularly in view of Smith's admission that, while he didn't know of any specific
instance, he felt "like [the company] probably would have . . . permitted anyone time
off to attend a funeral of someone in the family " before it started bargaining with the
Union.
SHOVEL SUPPLY COMPANY 469
This is the same wording that was contained in the original proposal, to which
the Union objected.
Respondent did produce its proposed rules at one of the bargaining sessions
and they were discussed. In the main, the Union had very few substantial
objections.19 However, the Union requested that the provision for discharge for
unexcused absence of 1 day be changed to 3 days. Respondent's latest version
of the contract retains the 1-day provision as part of the management-rights
clause.
(5) Respondent did accede to the Union's request that the words "including
physical" be deleted from the provision of the proposed contract giving
Respondent the right "To determine the qualifications of employees." The pro-
posed contract , however, still contains a provision that "At the discretion of
the Company , employees . may be required from time to time to take
physical examinations , including x-rays," and failure to pass such examination
may be cause for discharge. ( See supra.)
(6) Respondent did add a provision, suggested by the Union, that trainees
would have seniority from the date of hire if they were permanently assigned
to the production department.
The foregoing summary of the "changes" in its proposals to which Respondent
points shows only very minor "concessions," and those accompanied in several
instances by increased demands by Respondent . The Board's language in Rhodes-
Holland Chevrolet Co., supra, 1305, is apropos:
In assessing Respondent's bargaining attitude we have taken into account
that Respondent did at times recede from previously expressed positions on
minor items , but, considering the totality of Respondent 's bargaining conduct,
we are nonetheless satisfied that Respondent used such seeming reasonableness
merely as a cloak to mask its real intent to put off more meaningful bargaining.
To me, the Company's conduct in making the numerous "changes" listed by
Respondent, rather than evidencing any attempt to reach a contract, "looks more
like a stalling tactic by a party bent upon maintaining the pretense of bargaining."
N.L.R.B. v. Reed & Prince Mfg. Co., supra, 139.
The one thing Respondent never did was actually sit down and try to work out
a compromise which might have been acceptable to the Union or provide the basis
for discussion.
Even after the Union indicated that it would accept a contract with only "some"
of its original demands, and would accept a wage increase in lieu of demands to
which Respondent had been most adamantly opposed, the most Respondent was
willing to offer was a wage increase of 5 cents per hour if the Union accepted the
contract as then proposed by Respondent. With the Union asking 10 cents per hour
in addition to its other demands (which it valued at 16 cents on an "in lieu" basis),
Respondent could scarcely contend that it increased its wage offer from 3 to 5
cents with the slightest expectation that it would be acceptable. Cf. N.L.R.B. v.
Reed & Prince Co., supra, at 138:
The plain fact is that after months of negotiations, as the Board observed,
"practically all the Union could report to its membership in the way of prog-
ress was the 10-cent wage offer-freely given by the Respondent in an infla-
tionary period of rising wages...." 20
On all the evidence , including the demeanor of the witnesses , and consideration
of the briefs filed by the parties, I find that from on or about April 16, 1965, to
March 1, 1966, when the hearing in this case was concluded, Respondent engaged
in bad-faith, sham bargaining, thus violating Section 8(a)(5) of the Act, as alleged
in the complaint.
11 Ford felt that much of the material contained in the Company's proposed rules
did not properly qualify as rules. He produced a copy of an abbreviated version which
he testified he had sent to Malone, but which Malone did not recall having received
90 Since the hearing in this case, the present Respondent has voluntarily given a wage
Increase more than double the 5 cents which was its best offer to the Union in the course
of negotiations . See infra, section II, B.
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Posthearing conduct
1. The facts
Under date of March 22, 1966, John Edward Price, Esquire, of Fort Worth,
Texas, filed with the Chief Trial Examiner a request on behalf of Respondent for
extension of the time for filing briefs from April 4 to May 10, 1966. After stating
that Malone, who had appeared for Respondent up to that time, had been injured,
Price's letter read, in part:
... As a result it became necessary for [Mr. Malone] to withdraw from the
case, and Respondent was forced to employ the undersigned for the purpose
of writing the brief to the Trial Examiner.21
The purpose of this letter is to request an extension of time for filing the
brief to the Trial Examiner until May 10, 1966. This request is made so that
I might have an opportunity to familiarize myself with the record. I only
received the transcript of testimony today, and I have not yet received a copy
of the exhibits.
An extension was granted until April 25, 1966.
On March 28, Price wrote to the Union as follows:
Effective April 4, 1966, the Company proposes to raise wages 5 percent
across the board. The Company hereby withdraws its previous offer of 50
per hour.
The Company withdraws its previous offers on the following matters:
1-Arbitration as a final step in the grievance procedure.
2-The last offer concerning contracting out work.
3-Its last offer concerning foremen working.
If the Union wishes to meet and discuss these matters before April 4, please
advise. If we cannot arrange a meeting prior to April 4, the Company proposes
to let the wage increase go into effect without precluding bargaining on wages.
The undersign's authority to act as bargaining spokesman for the Company
may be verified by calling Mr. L. C. Ferguson at the Company office.
In reply, the Union stated that it had no objection to the 5-percent wage increase
but that: "we strongly object to the Company withdrawing things that we have
previously agreed to." The Union stated its willingness to meet at any time. A
meeting was then held on April 2. Respondent was represented by Attorneys Price
and Norman R. Bennet 22 At this meeting, Price first presented the following sub-
stitute for arbitration as the final step in the grievance procedure, which had previ-
ously been agreed on:
Step 4. The decision of the president [of the Company] as set forth in Step
3 will be final and binding with respect to the issues.
Except that after exhausting the foregoing steps, if either party feels that the
provisions of the contract have been violated then that party shall retain any
rights it may have had under the existing Civil law, including filing a breach
of contract suit and/or the right to strike 23 However, the Union agrees that if
it decides to strike it shall;
(a) Within 10 days of the receipt of the decision of the president give
the company written notice of its intention to strike; and
(b) Within 30 days of receipt of the president's decision actually com-
mence the strike.
21 It might be noted that Scay, Malone's partner, who had participated in some of the
contract negotiations testified at the hearing It is not apparent, therefore, why Malone's
unfortunate incapacity "forced" Respondent to retain new counsel, totally unfamiliar
with the case.
Respondent, of course, has the right to retain any counsel it desires The change of
counsel would perhaps not be worthy of note except for the subsequent course of Re-
spondent's conduct.
22 The letterhead on Price's letter of March 22 identifies Bennet as an associate in
Price's office.
23 The words "either party" misleadingly convey an impression of some mutuality.
Since Respondent's proposal makes the decision of its president "final and binding in all
respects," Respondent could not conceivably "feel that the provisions of the contract
have been violated" by the resolution of a grievance
SHOVEL SUPPLY COMPANY 471
Price next withdrew Respondent's most recent offer-a contract term concerning
subcontracting of work, which had provided that Respondent would have the right:
To contract out any work
(1) Where the Company does not have trained employees available or
on layoff status hereunder; or
(2) does not have the technology, tools, equipment or facilities there-
for; or
(3) the performance of such work in the plant, in the judgment of the
Company, is not economically feasible.
In its place, Respondent now insisted on its original proposal for the unqualified
right "To subcontract all or any part of the operation."
Price next announced Respondent's withdrawal of its most recent proposal con-
cerning working foremen, which read:
The Company reserves the right to have work done by members of Man-
agement, Supervisory Employees, and employees outside of the bargaining unit
when in its judgment such action is desirable for the orderly and efficient
operation of the Plant, as long as it does not deprive any hourly paid employ-
ees of regular shift work in the unit. [Emphasis supplied.]
Respondent now demanded elimination of the final proviso against depriving unit
employees of regular shift work (the portion emphasized).
In addition to these three items, which had been mentioned in his letter of March 28,
1966, Price also requested elimination of Article 13, the "No-Discrimination, No-
Strike and No-Lockout" provision which had been contained in the Respondent's
original proposal and accepted by the Union after initial objection.
2. Discussion and conclusions
The grievance procedure, including binding arbitration as the final step, had
originally been drafted and proposed by Respondent. It was agreed on at least as
early as August 10, 1965.24
Under Price's latest proposal, there would be no practical recourse against arbi-
trary action by Respondent on employee grievances except for a strike-and that
within limitations which would severely circumscribe the Union's scope in devising
tactics. While Respondent has not stated any reasons for its present proposals, pre-
sumably it would seek to justify elimination of the no-strike clause as a quid pro
quo for deletion of the provision for arbitration. Textile Workers Union v. Lincoln
Mills, 353 U.S. 448, 455. But the restricted right to strike now proposed certainly
is no satisfactory substitute for arbitration. Since the decision of Respondent's
president on any grievance is to be final, it is clear, as the General Counsel observes
in his brief, that "Respondent could pick and choose those times which it was
willing to chance a strike by its employees without giving anything in return." 25
And the fact is that the Union had agreed to the no-strike provision, despite Ford's
initial strong objection to its breadth.
The major purpose of the Act is to minimize "strikes and other forms of indus-
trial strife or unrest" (Sec. 1). Presumably an employer's own self-interest is also
best served by eliminating strikes. Indeed, Seay, testifying concerning a bargaining
session in which he participated on behalf of Respondent, said that he:
... argued that that was all the company got out of the contract, really, or
one of the main features that they got out of it was this no strike provision
and the rights of management clause.26
24 The parties apparently remained in disagreement as to whether grievances should be
processed during or outside working hours and whether members of the grievance com-
mittee should be paid by Respondent for the time spent on processing grievances So far
as appears these issues are still open
a The "quid pro quo" rationalization could hardly cover both elimination of arbitra-
tion and deletion of the no-discrimination and no-lockout provisions of Respondent's
original proposal
3 ,Over the General Counsel's objection, I admitted in evidence "minutes" of the bar-
gaining session of August 10 prepared by Seay Those "minutes" contain the following
paragraph : "Mr Seay got down to Article 13, Section 2, and said be could not understand
why Ford would object to that section of the No Strike clause As a matter of fact, that
was all the Company got out of a Contract, was the No Strike clause, and that Ford
had agreed to No Strike clauses of this character before Mr. Ford said lie felt that it was too
restrictive and too detailed and went too far, and that he did not agree to a No Strike
clause in that language " As previously noted, the Union thereafter did accept Respond-
ent's proposed no-strike provision.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There was evidence that at several points during the negotiations Ford had, in
effect, threatened a strike if agreement was not reached. However, no strike vote
was actually taken. Apparently heartened by this course of events, Respondent now
appears prepared to gamble the no-strike clause for provisions which would rele-
gate the Union to no remedy other than immediate strike or extensive and pro-
longed litigation.
I thus consider Respondent's position with respect to the grievance procedure and
elimination of the no-strike clause a flagrant example of bad faith and a direct
flouting of the basic purpose of the Act.27 H. K. Porter Co., 153 NLRB 1370, 1373
enfd. sub nom. Steelworkers v. N.L.R.B., supra.
Testimony of Charles Smith, Respondent's representative, itself demonstrates the
bad faith of its withdrawal of the proposed wording of the provision concerning
working foremen and its present demand for the unqualified right to have nonunit
employees perform unit work. At the hearing, Smith stated that the Company
"never desired or never asked" that its foremen be "full-time working production
men." He stated that "part of our business simply require on occasions that some-
body other than a person in a bargaining unit do some of the work." He then
added that the provision in its December proposal "worked around the problems
that we had and should have been an adequate compromise." The "compromise"
proposed by Respondent would have permitted work by supervisors and other non-
unit employees " as long as it does not deprive any hourly paid employees of regular
shift work in the unit." The Union's written contract proposal of November 1965
had included this provision minus the words "regular shift." The parties thus were
close to agreement on terms which would protect the legitimate interests of both.
There being no apparent justification for Respondent's present withdrawal of its
suggested "compromise," I can conclude only that it was motivated by a bad-faith
desire to avoid reaching agreement. As Ford noted in his testimony, an unrestricted
right in Respondent to assign unit work to nonunit employees would permit elimina-
tion of all overtime.
Respondent has not explained how the limitations on its right to contract out
work which it previously offered have become inconsistent with its legitimate and
reasonable needs. The unrestricted right to contract work out, which Respondent
now demands, would leave the employees entirely at the Respondent's mercy.
It would be difficult to conceive of any proposals that Respondent could make
which would strike more directly at the heart of an agreement than the unrestricted
right to contract out work or have unit work performed by nonunit employees. As
said in "M" System, Inc., 129 NLRB 527, 551, "The terms on which the Respond-
ent conditioned agreement were such as to leave the Union better off without a
contract than with one. Even without a contract, the Union, under the statute,
would have had the right, for example, to be consulted in advance and to bargain
about" contracting work out and having unit work performed by nonunit employ-
ees. (Respondent's proposed "Rights of Management" clause would give Respond-
ent the unqualified right to "Discontinue the operations or any phase or department
thereof; to close the plant or plants, relocate same or any part thereof or liquidate
or dissolve the corporation.")
Nor can Respondent's decision to grant a 5-percent wage increase be viewed as
any indication of a good-faith desire or attempt to reach agreement . The language
of another Trial Examiner concerning raises granted by another company for
which Price was the bargaining agent is entirely apropos in this case . In American
Aggregate Co., supra, the Board adopted the Examiner's Intermediate Report,
which said, in part (p. 920) :
As I read the April letter [concerning proposed raises ], it was not an
invitation to the Union to consider and discuss the raises as a counterproposal
to the Union's wage demands. It announced a fiat coupled with lip service to
the statutory duty to bargain with the Union. Unmistakably implicit in its
language is the thought that if the Union representative wished he could talk
with Price, but that, talk or not talk, and quite regardless of what might be
said, the Respondent was going to do exactly what it had announced... .
In the present case, the 5-percent wage increase was not put forward as a counter-
proposal to the Union's demands and Price's letter refers to possible further bar-
271n American Aggregate Co., Inc, 125 NLRB 909, 921, enfd. 285 F2d 529 (CA 5),
Price, bargaining for another employer, also proposed a procedure under which strikes.
were the employees ' only real remedy.
SHOVEL SUPPLY COMPANY 473
gaining only as to wages. See Herman Sausage Co., Inc., 122 NLRB 168, 171-172,
enfd. 275 F.2d 299 (C.A. 5).
It will be recalled that the Union had at one time offered to take monetary
wage increases in lieu of its other demands. In lieu of 6 paid holidays, it had
offered to take 6 cents in wages, and it had later reduced its demand to 4 paid
holidays. It had also offered to take 3 cents in lieu of 3 days death in the family
leave, and had subsequently reduced this demand to 2 days. Additionally, it had
offered to forgo jury pay, for which it had previously offered to take a 1-cent
wage increase. Substantial agreement had been reached on payment for work on
the 6th and 7th consecutive days, in lieu of which the Union had asked 4 cents in
wages. Thus, it was likely that, with the agreements reached and Respondent's out-
standing offers on many issues, a final contract could be reached by a wage increase
of substantially less than the 20 to 25 cent total the Union had asked on an "in
lieu" basis. The record contains evidence of wages paid to nine employees. These
average $2.13 per hour. If they are representative, a 5-percent increase would be
over 10 cents. As Respondent emphasizes in its brief, it put the 5-percent wage
increase "into effect without precluding bargaining on wages," and has never
claimed economic inability to meet the Union's demands.
The inference is inescapable that Respondent feared that the 5-percent wage
increase which it had decided to grant would bring it dangerously close to agree-
ment, and that its withdrawal of prior agreements and offers was motivated solely
by the desire to avoid this result.
With no attempt to counteract this inference, in his brief, Respondent's counsel,
who is also its bargaining agent, says simply:
Counsel for General Counsel seems to be saying that having once made an
offer the company is precluded from later changing its position. If the Union
was so anxious to have these items incorporated in a contract, then it should
have agreed to a contract while these proposals were on the table. The law
does not require the submission of irrevocable offers by either party.
At least as early as 1954, the Court of Appeals for the Fifth Circuit rejected this
cavalier approach to an employer's bargaining obligation saying, in N.L.R.B. v.
International Furniture Co., 212 F.2d 431, 433 (C.A. 5):
The Respondent's reversal of position, its withdrawal of previous agree-
ments, and its insistence upon substituting terms that had once been discarded,
are indicative of a lack of good faith.
That court has reaffirmed this ruling as recently as July 21, 1966. San Antonio
Machine & Supply Corp. v. N.L.R.B., 363 F.2d 633. There have been numerous
similar holdings by the Board and the courts. In addition to the cases cited by the
court in San Antonio Machine, see, e.g., Newberry Equipment Co., 157 NLRB
1527; The Marley Co., 150 NLRB 919, 922; Mrs. Fay's Pies, Inc., 145 NLRB 495.
508, enfd. 341 F.2d 489 (C.A. 9); Newberry Mill, Inc., 141 NLRB 1167, 1168 .28
On the basis of the stipulation of facts, with attached documents, submitted by
the parties on June 1, 1966, I find that after the hearing in this case Respondent
not only continued in its refusal to bargain in good faith but increased the extent
of its bad faith.
I therefore conclude that at all times since on or about April 16, 1965, the date
of the first negotiating session, Respondent has failed to bargain with the Union in
good faith, in violation of Section 8(a)(5) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above, occurring in con-
nection with the Respondent's operations described in section I, above, have a
close, intimate, and substantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
IV. THE REMEDY
Having found that Respondent flagrantly violated Section 8(a)(5) of the Act
by unilaterally granting holiday pay for December 24 and 25, 1965; by dilatory
28 In view of the plethora of pertinent Board and court decisions, I feel it worthy of
note that Respondent's brief contains no citation of authority. Nor, indeed, does the brief
contain any analysis of the record in the light of precedent or any record references.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tactics and sham bargaining throughout; and by withdrawing agreements previously
given and proposals previously made, I will recommend the entry of an appropriate
order. Respondent will be required to restore its agreement on all issues as to
which agreement had been reached in the course of the negotiations and, as to any
other issues, restore its best prior offer. These agreements and offers are to remain
outstanding until superseded by mutual agreement of Respondent and the Union
or until any such offers have been definitely rejected by the Union. In addition,
since the Union agreed to Respondent's granting a 5-percent wage increase, subject
to further bargaining as to wages, Respondent will be forbidden to withdraw it,
in whole or in part, until a final collective-bargaining agreement has been reached
and signed.29
Respondent's recent conduct manifests a marked intensification of the nature of
its violations. Respondent's attempted withdrawal of its agreement to arbitration of
grievances and a no-strike clause-the "complete effectuation of the federal policy"
(Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578)-leads me to
conclude that, absent special provision in the remedial order, Respondent might
propose other provisions inimical to the Federal policy. Because of the worsening
course of Respondent's conduct, it is doubtful that the Board's usual bargaining
order will be fully effective. Cf. Steelworkers v. N.L.R.B. [H. K. Porter Co.], 363
F.2d 272 (C.A.D.C.):
It is clear from the record in this case that the prior order of the Board,
drawn, as is the order in suit here, in terms of the statute, requiring the com-
pany to bargain in good faith, was ineffective... .
To avoid the repetition of Board proceedings which was necessary in Steelworkers
[H. K. Porter Co.], I will recommend that the order in the present case provide
that, in addition to being required to restore the agreements for arbitration and a
no-discrimination, no-strike, and no-lockout clause, Respondent be prohibited from
proposing or urging any change in the outstanding proposal which would have the
effect of encouraging resort to strikes or lockouts as means of composing differ-
ences between Respondent and its employees or the Union.
These specific provisions will, of course, be included in addition to the cease-and-
desist and affirmative bargaining orders customary in cases of this sort. While the
order will not require Respondent affirmatively to agree to any of the Union's
specific demands, it will have the effect of prohibiting Respondent from "reiterat-
[ing] positions which (assuming this Decision stands) it has heretofore espoused in
bad faith." Roanoke Iron & Bridge Works, Inc., 160 NLRB 175.
CONCLUSIONS OF LAW
By unilaterally granting pay for holidays observed on December 24 and 25, 1965;
by engaging in dilatory tactics and sham bargaining; and by withdrawing from tenta-
tive agreements reached and rescinding concessions and proposals previously made,
Shovel Supply Company, Inc., Respondent, has engaged in unfair labor practices
within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act since
April 16, 1965.
RECOMMENDED ORDER
Respondent, Shovel Supply Company, Inc., its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith concerning wages, hours, and
other terms and conditions of employment with International Union of Electrical,
Radio and Machine Workers, AFL-CIO, as the exclusive representative of all
employees in the following appropriate unit:
All production and maintenance employees, including all shipping and receiv-
ing employees, employed at Respondent's Dallas, Texas, plant, exclusive of
office clerical employees, over-the-road truckdrivers, guards, watchmen, and
supervisors as defined in the Act.
(b) Withdrawing tentative agreements previously reached with the Union except
to the extent that such agreements may be superseded by subsequent mutual agree-
ment of the Union and Respondent.
2D No specific provision is necessary concerning the pay granted for the Christmas holi-
days in 1965 , since that is a fully executed transaction not now subject to reopening or
recission by Respondent
SHOVEL SUPPLY COMPANY 475
(c) Withdrawing proposals of contract provisions it has previously made to the
Union except to the extent that such proposals may be superseded by agreement
reached with the Union or rejected by the Union.
(d) Proposing or urging any changes in the terms of its outstanding contract
proposals which, if adopted, would tend to encourage or increase resort to or reli-
ance on strikes or lockouts in the conduct of Respondent's labor relations.
(e) Making any unilateral changes affecting employees in the unit represented by
the Union with respect to wages, hours, and conditions of employment (including
holiday pay, bonuses, presents, or other benefits irrespective of their designation).
(f) Bargaining in bad faith with the Union or engaging in dilatory tactics during
negotiations.
2 Take the following affirmative action, which I find will effectuate the policies
of the Act:
(a) Upon request, bargain collectively in good faith with the above-named Union
as the exclusive representative of all the employees in the appropriate unit and
embody in a signed agreement any understanding reached.
(b) Renew its offer to accept the contract terms embodied in its original contract
proposal as modified by later concessions to or agreements with the Union.
(c) Keep in effect, subject to further collective bargaining, the 5-percent wage
increase put into effect on April 4, 1966.
(d) Post at its plant in Dallas, Texas, copies of the attached notice marked
"Appendix." 30 Copies of said notice to be furnished by the Regional Director for
Region 16, after being signed by a representative of Respondent, shall be posted by
Respondent immediately upon receipt thereof, and be maintained by it for a period
of 60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken to
insure that such notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 16, in writing, within 20 days from
the date of this Recommended Order, what steps Respondent has taken to comply
herewith 31
301n the event that this Recommended Order is adopted by the Board the iNords "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
311n the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read : "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively in good faith concerning wages,
hours, and other terms and conditions of employment with International Union
of Electrical Radio and Machine Workers, AFL-CIO, as the exclusive repre-
sentative of the employees in the unit described below by making unilateral
changes affecting employees with respect to wages, hours, and terms and con-
ditions of employment.
WE WILL NOT refuse to bargain collectively in good faith with the above-
named Union by engaging in dilatory tactics.
WE WILL NOT unilaterally make changes in wages and other terms and con-
ditions of employment (including holidays, bonuses, presents, or other benefits,
no matter how designated), without consulting and negotiating with the above-
named Union.
WE WILL NOT refuse to bargain collectively in good faith with the above-
named Union by withdrawing from agreements previously reached or with-
drawing offers or concessions we have previously made.
WE WILL on request bargain collectively in good faith with the above-named
Union as the exclusive bargaining representative of all the employees in the
unit described below, and WE WILL embody in a signed agreement any under-
standing reached.
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL restore our acceptance of all agreements tentatively reached with
the Union and our best previous offers on all other contract terms.
The bargaining unit is:
All production and maintenance employees, including all shipping and receiv-
ing employees, employed at our Dallas, Texas, plant, exclusive of office cleri-
cal employees, over-the-road truckdrivers, guards, watchmen, and supervisors
as defined in the Act.
All our employees are free to become, remain, or refrain from becoming or
remaining members of the above-named or any other labor organization.
SHOVEL SUPPLY COMPANY, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, Room
8A24, Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Tele-
phone 335-4211, Extension 2145.
Bricklayers & Masons International Union Local No. 3 and Frank
S. Llewellyn , Secretary and Eastern Washington Builders
Chapter of the Associated General Contractors of America,
Spokane, Washington . Case 19-CB-1059-1. December 30, 1966
DECISION AND ORDER
On June 29, 1966, Trial Examiner David Karasick issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices within the meaning of the National Labor Relations Act, as
amended, and recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondents filed exceptions to
the Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following modifications.
The Trial Examiner found that the Respondents violated Section
8(b) (3) of the Act by insisting to impasse upon a nonmandatory
162 NLRB No. 46.