Southwestern Porcelain Steel Corp.

National Labor Relations Board - Board Decisions

Dec 29, 1961

134 N.L.R.B. 1733 (N.L.R.B. 1961)

SOUTHWESTERN PORCELAIN. STEEL CORPORATION 1733
of said- notice , to be furnished by the Regional Director for the Second Region ; shall,
after being duly signed by an authorized representative of Customer Control, Inc.,
be posted by Respondent immediately upon receipt thereof , and be maintained by it
for 60 days thereafter , in conspicuous places; including all places where notices to
employees are customarily posted . Reasonable steps shall be taken by the Respond-
ent to insure that such notices are not altered , defaced, or covered by any other
material.
Examiner" In the notice . In the further event the Board's Order be 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."
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, we hereby notify our employees that:
WE WILL NOT discourage membership in District 65, Retail, Wholesale and
Department Store Union, AFL-CIO, or any other labor organization , by dis-
criminating in regard to hire or tenure of employment or any term or condition
of employment.
WE WILL NOT lay off, discharge , or otherwise discriminate against any
employee because he has given testimony under the National Labor Relations
Act.
WE WILL NOT in any manner interfere with, restrain ; or coerce our employees,
or otherwise infringe upon their exercise of the right to self-organization, to
form, join, or assist the above-named or any other labor 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
or protection, or to refrain from any or all of such activities, except to the
extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment , as authorized in Section
8(a)(3) of the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
WE WILL offer to George Losgar (employee ) immediate and full reinstate-
ment to his former or substantially equivalent position , without prejudice to his
seniority and other rights and privileges previously enjoyed by him, and will
make him whole for any loss of pay suffered as a result of our discrimination
in regard to his hire or tenure of employment.
All of our employees are free to become or remain, or to refrain from becoming
or remaining , members of the above-named or any other labor organization , subject
to the limitations provided in Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
CUSTOMER CONTROL, 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.
Southwestern Porcelain Steel Corporation and United Steel-
workers of America , AFL-CIO. Case No. 16-CA-14193. Decem-
ber 29, 1961
• DECISION AND ORDER
On June 1, 1961, Trial Examiner Eugene E. Dixon issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
134 NLRB No. 168.
1734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel and the Respondent filed exceptions
to the Intermediate Report and the Respondent filed a supporting
brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Leedom].
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 findings, conclusions, and recom-
mendations ;of the Trial Examiner.
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 the Respondent, Southwestern
Porcelain Steel Corporation, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Steelworkers of
America, AFL-CIO, as the exclusive bargaining representative of
all its employees in the following appropriate unit :
All production and maintenance employees at Respondent's
plant in Sand Springs, Oklahoma, including warehousemen, in-
spectors, shop janitors, and in-plant truckdrivers, but excluding
all office clerical employees, confidential employees, guards, and
supervisors as defined in the Act.
(b) In any like manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named or any other
labor organization, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection,
1 As the record and briefs in this case adequately present the positions of the parties,
Respondent 's motion for oral argument is hereby denied
2 The Trial Examiner found and we agree that the strike of August 2, 1960, was caused
and prolonged by the Respondent's refusal to bargain in good faith. The strike was
therefore an unfair labor practice strike and the strikers were unfair labor practice
strikers . In accordance with our policy, we shall therefore order reinstatement of the
strikers upon application , and backpay to begin 5 days after . the date of application for
reinstatement and to run until the Respondent 's offer of reinstatement Trinity Valley
Iron and Steel Company, a Division of C C. Griffin Manufacturing Company, Inc., 127
NLRB 417, enfd . 290 F. 2d 47 (CA. 5).
SOUTHWESTERN PORCELAIN STEEL CORPORATION 1735
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 organization as a condition of employment, as authorized by
the Act, as amended.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Steelworkers
of America, AFL=CIO, as the exclusive bargaining representative
of the employees in the heretofore described appropriate unit and
embody any understanding reached in a signed contract.
(b) Upon application, offer immediate and full reinstatement to
their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, to all those employees
who participated in the strike which began on August 2, 1960, and
have not already been reinstated, dismissing, if necessary, persons
hired by the Respondent on or after August 2, 1960.
(c) Make whole the employees specified above for any loss of pay
suffered by reason of Respondent's refusal, if any, to reinstate them
in the manner provided, by payment to each of them of a sum of money
equal to that which he normally would have earned as wages during
the period from 5 days after the date on which he applied for rein-
statement to the date of Respondent's offer of reinstatement less his
net earnings, if any, during said period, in the manner set forth in
"The Remedy" section of the Intermediate Report.
(d) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and all
other records necessary to analyze the amount of backpay, if any,
which may be due under the terms of this Order.
(e) Post at its plant in Sand Springs, Oklahoma, copies of the notice
attached hereto marked "Appendix." 3 Copies of said notice, to be
furnished by the Regional Director for the Sixteenth Region, shall,
after being duly signed by the Respondent's representative, be posted
immediately upon receipt thereof and maintained 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.
(f) Notify the Regional Director for the Sixteenth Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
I 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 "
1736 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 bargain collectively upon request with United Steel-
workers of America, AFL-CIO, as the exclusive bargaining repre-
sentative of all our employees in the appropriate unit described
below with respect to rates of pay, wages, hours of employment,
and other terms. and conditions of employment, and, if an agree-
ment is reached, embody such understanding in a signed contract.
The appropriate unit is:
All production and maintenance employees at our plant in
Sand Springs, Oklahoma, including warehousemen, inspec-
tors, shop janitors, and in-plant truckdrivers, but excluding
all office clerical employees, confidential employees, guards,
and supervisors as defined in the Act.
WE WILL, upon application, offer immediate and full reinstate-
ment to their former or substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges,
to all our employees who participated in the strike which began
on August 2, 1960, and who have not already been reinstated, dis-
missing, if necessary, all persons hired on or after August 2, 1960.
WE WILL make each such employee whole for any loss of pay
suffered by him as a result of our failure, if any, to reinstate him
within 5 days after his application. -
WE WILL NOT in any like manner interfere with, restrain, or co-
erce employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist the above-named or
any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from engaging in any or
all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized in Section
8(a) (3) of the National Labor Relations Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
SOUTHWESTERN PORCELAIN STEEL CORPORATION,
Employer.
Dated-------------'--- By--------- I ----------------------------
(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.
SOUTHWESTERN PORCELAIN STEEL CORPORATION
INTERMEDIATE REPORT AND RECOMMENDED ORDER
1737
STATEMENT OF THE CASE
Upon charges filed September 22, 1960 , by United Steelworkers of America,
AFL-CIO, herein called the Union , and duly served on Southwestern Porcelain
Steel Corporation , herein called the Respondent or the Employer , the General
Counsel of the National Labor Relations Board , herein called the General Counsel
and the Board , issued a complaint on behalf of the Regional Director for the Board's
Sixteenth Region (Fort Worth , Texas ), alleging that Respondent had committed
unfair labor practices in violation of Section 8(a)(1) and ( 5) of the National Labor
Relations Act, as amended , 61 Stat. 136 , herein called the Act.
The complaint as amended at the hearing alleges that from about May 18, 1960,
Respondent refused to bargain with the Union as the duly designated bargaining
representative of Respondent's employees in an appropriate unit by (a) causing
unreasonable delays in scheduling meetings and engaging in surface bargaining;
(b) presenting a wage proposal of a definite lump sum for the purpose of adjusting
inequities but reserving to itself the selection of the individuals to be adjusted;
(c) proposing a grievance clause providing that if either side used it the contract
might be set aside; and ( d) entering into unilateral changes in rates of pay "applic-
able particularly but not exclusively to new employees." The complaint also alleged
that a strike which occurred on August 1 was caused and prolonged by Respondent's
unfair labor practices . In its answer Respondent denied the commission of any
unfair labor practices.
Pursuant to due notice, a hearing was held before the duly designated Trial Ex-
aminer at Tulsa , Oklahoma, from December 5 through 9, 1960. All parties were
represented by counsel and afforded full opportunity to present evidence , examine
and cross-examine witnesses , make oral argument , and file briefs and proposed find-
ings of fact and conclusions of law. Briefs were received from both the Respondent
and the General Counsel . After the close of the hearing a motion was made by Re-
spondent to correct the record in certain respects . No objections having been raised,
said motion is hereby granted.
From his observation of the witnesses , and upon the entire record in the case, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE RESPONDENT'S BUSINESS
Respondent is and at all times material herein has been a corporation duly organized
under and existing by virtue of the laws of the State of Oklahoma, having its princi-
pal office and place of business in the city of Sand Springs, Oklahoma, where it is en-
gaged in the manufacture, sale, and distribution of porcelain enamel signs and related
products. In the course and conduct of its operations during the 12-month period
preceding the hearing, Respondent purchased raw material valued in excess of
$50,000, which was shipped in interstate commerce to its plant from, points outside
the State of Oklahoma. During the same period, Respondent sold products valued
in excess of $500,000, of which more than $50,000 worth were shipped in interstate
commerce from its plant to points outside the State of Oklahoma. Respondent
admits and I find that Respondent is engaged in commerce within the meaning of
Section 2(6) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The unit and election
All production and maintenance employees at Respondent's plant in Sand Springs,
Oklahoma, including warehousemen, inspectors, shop janitors, and all in-plant truck-
drivers of Respondent, exclusive of all office clerical employees, confidential em-
ployees, guards, and supervisory employees as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of Section
9(b) of the Act. On April 27, 1960, in a Board-conducted election, a majority of the
employees of Respondent in the foregoing unit designated the Union as their repre-
sentative for the purposes of collective bargaining, and at all times since that date
1735 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union has been the exclusive representative of all the employees in said unit
for the purposes of collective bargaining in respect to rates of pay, wages, hours of
employment, and other ! conditions of employment.
B. The negotiations
On May 18 the Union submitted to the Company its first contract proposal. This
was a complete contract except for wage rates which were to be covered in an
appendix later. Among'other things, the proposal called for a union shop and dues
checkoff, a grievance procedure culminating in arbitration and a no-strike clause.
From May 18 through November 23, 14 negotiation meetings took place. Unless
otherwise noted , as appears from the testimony of Floyd Rheam (Respondent's coun-
sel), during this period even with numerous concessions by the Union' not a thing of
importance was conceded by the Company.2 It consistently insisted on reserving to
itself control over numerous matters it considered to be management prerogatives .3
Even on matters of little' or no consequence or on which it claimed to have no ob-
jections it repeatedly insisted on having "another look at the language" or the oppor-
tunity to redraft or rewrite the item 4 Not only did the Company on many occasions
propose that the employees should have only what rights they had in law 5 but on
'Among the concessions made by the Union were: (1) dropping its original wage de-
mand from a $60,000 matter to some $20,000; (2) six instead of seven holidays ; (3) 90 in-
stead of 30 days' probationary period; (4) 5 Instead of 10 days' trial period on job trans-
fers , (5) dropping its demand for up to three garnishments before dismissal , and
(6) loss of seniority on a 2-day instead of a 3-day unannounced absence
9 Besides such meatless concessions as agreeing to the preamble to the Union's pro-
posal, the scope of the agreement, the recognition of the Union as the bargaining agent,
and the mutual intention of establishing a harmonious relationship for the efficient and
productive operation of the business, Respondent did agree to such things as bulletin
boards and equal pay to female employees.
8 See page 1740 for a list of matters that apparently came within this reservation by
Respondent. As for the Union's proposal, the following matters were indicated by Rheam
in his testimony to be within what Respondent deemed management's prerogatives
Article 7, machinery and tools ; article 8, section 2, starting time and lunch period ;
article 14, section 6, involving job posting and eligible bidders ; article 15, section 2,
joint committee on employee qualifications for filling vacancies. Also clearly within the
restriction was any form of arbitration. As reflected by Rheam's statement in the tape-
recorded meeting of August 24, the Company's position on any form of arbitration was,
"We have the money invested here and we are the ones that are taking the risk and we
think that we have the right and should make the ultimate decisions, and that's what we
propose to do. We don't propose to submit it to some outsider that knows nothing about
11our operation. . . .
4 ,Both Haubner and Union Negotiator Arthur K. Berkey testified that Rheam repeatedly
would indicate in the negotiations that various provisions of the Union's proposals were
all right in principle or seemed to be O.K. or did not give rise to any particular objection
but that he wanted to have another look at the language or that he might want to rewrite
it or that it might need rewriting. From Rheam's testimony the following appears:
(1) Article 5, section 1, on company rights. Rheam said it was not broad enough and
indicated he would like to submit a new draft, and section 2 of article 5 involving com-
pany rules Rheam said was all right but he would like to take a further look at the sec-
ond paragraph. (2) The Company agreed in principle with section 1 of article 15 (posting
of vacancies) but not the language and wanted to submit a revision of it. (3) Rheam sug-
gested that the second paragraph of section 6, article 15, be rewritten having to do with
eligibility to bid on jobs after having already transferred to one. (4) Article 5 of the
Union's second proposed contract concerning rate establishment and adjustment was "agree-
able in principle but . . . the language needed to be reworked." (5) Article 8, section 3
(jury service) of the Union's second proposal was agreeable "in principle" but Rbeam
"might want to take a further look at the language." (6) Article 11, section 1 (posting
and bidding for vacancies) was agreed to "in principle" (7) The Company offered to
draft and submit a new proposal regarding article 12, section 1, pertaining-to layoffs by
classifications. '(8) Rheam suggested that the "language should be changed" of section 4,
article 13, involving union leaves of absence. (9) Rheam "couldn't see too much wrong"
with sections 1, 2, and 3 of article 15 (disciplinary action) but thought the Company's
negotiators should talk further among themselves about it.
5 Whether or not the Company on occasion flatly stated that it would agree to no more
than the law required , as contended by the General Counsel's witnesses and denied by
the Respondent's witnesses, is unnecessary to decide since it is clear that on several occa-
SOUTHWESTERN PORCELAIN STEEL CORPORATION 1739
one or two occasions would not even agree to put in contractual form provisions
that it was already observing.6
Relatively early in the negotiations the Union indicated that its wage demands
would be substantial. By the June 22 meeting, having been furnished by the Com-
pany with information it had requested regarding names, classifications, seniority,
and wage rates of employees in the unit,7 the Union announced that it wanted a 25-
cent general wage increase and the correction of inequities in the wage scale. Whether
in this meeting or later, the Company indicated that the Union's proposal would
cost $60,000 a year and evidently made it clear it would not agree to it. In any
event in the next meeting which took place on June 28, the Union reduced its demand
and sought only a 25-cent increase to be divided between the inequities and a general
increase.
The Company subsequently made a counterproposal on wages. It offered to
give up to 15 cents for the purpose of equalizing the inequitable or disparate rates
for similar work and submitted a schedule showing who would be raised and how
much.8 This, the Company pointed out, would cost it about $13,000 rather than
$60,000. The Union countered that under this proposal about half of the em-
ployees would not get increases and indicated that it could not possibly accept such
a provision. It then tried to get the Company to increase its offer to $20,000 and
let it be divided between a general increase and the inequities in a manner to be
determined by the Union. According to the testimony of Rheam (who was the
Company's chief negotiator and spokesman), the Company indicated it would
explore the matter with management. According to Union Negotiator 1Haubner's
testimony, the company negotiators indicated that "It was their (the Company's)
money and they were going to use it that way and that was it." The Company never
again mentioned the matter.
By the ninth meeting on August 1, only a little over half of the union proposal
had been touched upon. Furthermore, except for the rewriting of two of the Union's
proposed paragraphs by Respondent (sections 1 and 6 of article XV entitled "Posting
of Vacancies") and the above-mentioned wage matter, no formal counterproposals
had been made by Respondent up to this time. In the meeting of August 1, accord-
ing to the credited testimony of Union Negotiator Berkey, the following occurred:
After a recess which had been requested by ,the Company to discuss the possibility
of a revision by the Union of its union-shop proposal, the Company wanted to know
if the employees were going on strike. Berkey indicated that a meeting of the em-
ployees had been called for that night and that he had hoped to have a good report
to make regarding the negotiations but that they were not making progress, that it
seemed to him that the Company was "not trying to bargain a contract at all." In
explanation he pointed out that after nine meetings the Company had not made a
single proposal'except for the above two rewrites. At this point•Rheam stated that
if he had known the Union wanted a proposal be would have given it one and
thereupon took three copies of a proposed contract from his brief case and handed
it to the Union's negotiators.
Respondent's proposal among other things provided (1) for recognition of the
Union as the bargaining agent of the production and maintenance employees; (2)
sions that is all that the Company offered to do whether it said so in so many words or
not. Thus, as is shown in the Company's one and only full contract proposal, it set
forth therein at least three proposals all of which were required by law. In addition,
according to Rheam' s own testimony, in place of a union proposal that in the event of
any employment connected disability or sickness, the employee should have the right to
an examination by the company doctor at company expense, the Company insisted upon
the following:
The Company agrees that in the event of any employment connected disability or
sickness, the employee shall have all the rights and obligations prescribed by the
Oklahoma Workmen' s Compensation Laws then in force and effect.
8 Thus, the Company would not agree to pay overtime for all hours worked after 8 In
1 day notwithstanding that it had been doing so Nor would it agree that a certified
first-aid attendant continue to be available or that the Company continue to furnish
protective items or any new ones to be required by the Company in the future.
° On the several occasions during the negotiations that the Union requested informa-
tion from the Company it was always supplied.
8 For instance if a man was receiving 15 cents less than the top rate for a given classi-
fication, he would be increased 15 cents. If another was only 10 cents below the top rate,
he would receive only 10 cents. Likewise, no matter how much below the top rate a man
was, the maximum raise he could get under the proposal was 15 cents
1740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for payment of time and one-half for all hours worked in excess of 40 in 1 week, and
(3) that the Company would not interfere with , restrain, or coerce employees in
their exercise of union activities or discriminate against them for the same reason.
All three of these concessions were, of course , required by applicable law.9
In addition to the foregoing , Respondent 's proposal also reserved to itself com-
plete and ultimate control over merit increases , discharges , leaves of absence, pro-
motions, transfers , reductions in force, new jobs, shift preferences , and job bidding.
Besides the foregoing specific reservations of authority, Respondent included the
following catchall recital of its prerogatives:
ARTICLE XVI
FUNCTIONS AND PREROGATIVES OF MANAGEMENT
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 an employee for violation of such
rules or for other proper and just cause.
The right to select and hire, to promote to a better position, to discharge,
demote or discipline for cause , and to maintain discipline and efficiency of em-
ployees, to grant raises 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 just man-
ner, and while it is agreed that an employee, feeling himself to have been ag-
grieved by any decision of the Company in respect to such matters, or the
Union , is his behalf, shall within ten ( 10) days from the decision of manage-
ment of the Company, have the right to have such decision reviewed by one
of the officers of the Company and an earnest effort shall be made to settle
and compromise the protest of the decision through negotiation and discussion
between the Company and the Union , or the aggrieved employee or employees.
It is further agreed that the final decision of the Company, made by its repre-
sentative , shall be final and binding and shall not be further reviewable in any
manner.
The proposal also included a grievance procedure which in its final step provided
as follows: -
(c) The Shop Steward or Union representative shall meet with the authorized
representatives of the Company and attempt to settle said grievance. In the
event the grievance or dispute is not settled in this step within three working
days, the Union may notify the Company that a labor dispute exists between
the Company and the Union. The Union or the Company may in the event
of an unsettled dispute terminate the contract by giving the other three day's
notice in writing of its intention to terminate and each party shall have full
rights and authority that it would have if no contract had been written.
Whether or not there was any serious discussion of any of the matters contained
in the Company's proposal at the August 1 meeting is immaterial . 10 The fact is
that on hearing of the strike probability for the following day, the Company broke
9 One and three by the Act and two by the Fair Labor Standards Act.
10 In his testimony , Rheam said when he handed the proposal to Berkey:
He merely took it , looked at it, and he says , "Well, we reject this as of now." He
did not turn over any page. He merely looked at the first page
This is inconsistent with Rheam 's statement in the August 24 meeting when he said,
"Gentlemen , at our last meeting on August the 1st we presented you with a proposal and
we've had no answer on that, . . There were inconsistencies elsewhere in Rheam's
testimony . For instance , he testified at one point that "all of the rewrites that I
promised to give I did give . . . ' Yet at another point he testified about promising a
rewrite on article 2, section 2, at the June 28 meeting which he never presented even
though the subject matter came up for "considerable further discussion" at a subsequent
meeting. On this basis I have no difficulty in crediting the General Counsel's evidence
that repeatedly the Respondent had promised or indicated it would submit rewrites or re-
vised proposals on various matters contained in the Union's proposal and that it failed
to do so.
SOUTHWESTERN PORCELAIN STEEL CORPORATION 1741
off the meeting for the purpose of getting to the plant before closing time in order
to make preparations for the strike.
The following day, August 2, the employees went on strike.ll The Union sought
the services of the conciliation service and as a result negotiations were resumed on
August 24 with the conciliation representative, Walker, present.
At the August 24 meeting the Respondent insisted on the use of a tape recorder.12
The General Counsel's witnesses maintain that they objected to the Company about
the use of the recorder and the Company's witnesses maintain that no such objec-
tion was voiced by the Union. The evidence shows that the Federal conciliator,
Walker, tried to persuade the Company to forego use of the recorder without suc-
cess. The evidence also shows that the Union did complain to Walker about it and
had asked him to speak to the Company about its use. From the foregoing it would
appear that the Company may have assumed that Walker's request about it had
been made on his own initiative.
At the outset of the meeting the Company's proposed contract of August 1 was
brought up. Rheam made the statement that because the Union went on strike he
assumed it was rejecting the Company's proposal "and, therefore, we are withdraw-
ing the offer, the proposal that we have made on August 1st.. . He added,
however, that if the Union was interested in discussing it the Company would
"be willing" to do so. At this point Union Negotiator Berkey pointed out:
This thing that you call a proposal or counter proposal, obviously, there is no
resemblance to a valid, reasonable instrument for a contract between the Com-
pany and the Union on matters of wages, hours, or work and conditions of
employment. It has no force and effect; it has no authority for settling of dis-
putes; it provides nothing other than a fundamental right to terminate the
contract.
Obviously, if the Company did not live up to any part of its proposed agree-
ment here there is no recourse, there is no recourse whatsoever, other than ter-
minate the agreement. This we explained to you in the last meeting, and we
were, at least, not favorably impressed, we were impressed by the lack of agree-
ment in this document that you submitted as a proposal. It doesn't agree to any-
thing, not even the recognition of the Union.
Now, we are perfectly willing, as we have been since the issuance of the certi-
fication, to bargain in good faith with the Southwestern Porcelain Steel Com-
pany or its designated representatives, whoever they might be, for the purpose of
entering into a collective bargaining agreement covering the hours of work,
gates of pay, and other conditions of employment, as is normally and generally
considered by the Board as to the issues to be negotiated upon.
After Rheam had protested that it was the Company's opinion that it had bar-
gained in good faith and that the contract it had submitted "was a reasonable pro-
posal," some discussion of its provisions took place and Conciliator Walker finally
observed:
I would say you people are not bargaining. The Union has come up with a
proposal that was not satisfactory to management. Management brought a
proposal in that was not satisfactory to the Union. Management has now
withdrawn its proposal and you have talked on nothing else except the proposal
that has been withdrawn. In my opinion, that is the flimsiest kind of bargaining.
If you have a proposal, if that is not the Company's proposal, bring up a pro-
posal that is the Company's position today. If that is not the Union's proposal,
bring a proposal and have it up-to-date. That's the only way I know to negoti-
ate a contract, is to find out where we are. I don't know what the Company's
position is now. They had a proposal and have withdrawn it. I don't know
what the Union's position is.
n That the failure to make any progress toward a contract was the cause of the strike
is clear and I so find notwithstanding a newspaper advertisement by the Union stating,
inter alia, that:
The strike was brought on by the company's refusal to cooperate with the Union on
an urgently needed safety program, refusal to recognize the union safety committee
and refusal to settle disputes between the employees and the company by peaceful
arbitration without a strike.
"The following findings about the August 24 meeting are based on the tape recording
made at that time and transcribed by the official reporter who took notes as the tape was
played in our hearing.
1742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Walker then added that he thought they could make some headway by having the
Company's "withdrawn" proposal "for a basis of the negotiation." Rheam stated
that he thought it could be used as such but that there were " some other things"
that the Company was going to ask for now "that did not exist at the time that this
proposal was made."
Pursuant to Walker's request, some days later the Union submitted a new complete
contract proposal to the Company. Whatever concessions it made over its first
proposal, it did not recede from its demand for union security and dues checkoff and
a grievance procedure including arbitration. The Company submitted no further
proposal. In the four meetings that followed no progress was made and the No-
vember 23 meeting adjourned sine die in anticipation of the hearing herein.
Conclusions
Section 8(d) of the Act provides that:
... to bargain collectively is the performance of the mutual obligation of the
employer and the representative of the employees to meet at reasonable times
and confer in good faith with respect to wages, hours, and other terms and con-
ditions of employment , or the negotiation of an agreement , or any ques-
tion arising thereunder, and the execution of a written contract incorporat-
ing any agreement reached if requested by either party, but such obligation does
not compel either party to agree to a proposal or require the making of a
concession.
In N.L.R.B. v. American National Insurance Co., 343 U.S. 395, the Supreme Court
held that the Board cannot pass judgment on the substantative terms proposed or
resisted in collective-bargaining relationships. It also held that insistence upon uni-
lateral control over conditions of employment which are bargainable matters is not
a violation of the Act per se. Such insistence may, however, be indicative of a lack
of the good-faith bargaining required by Section 8(d) of the Act depending upon a
"fair appraisal of the circumstances and the particular facts of the case." L. L. Ma-
jure Transport Company v. N.L.R.B., 198 F. 2d 735 (C.A. 5). Moreover, mere ob-
servance, even though meticulous, of the mechanical criteria for bargaining set forth
in Section 8(d) does not automatically fulfill the requirements of the Act. Thus,
frequent conferences willingly attended, the submission of contract proposals and
going through the motions of bargaining are not in themselves enough to satisfy the
law if in fact a respondent is not conferring on a give-and-take basis "with an open
mind and purpose to reach an agreement consistent with the respective rights of
the parties." L. L. Majure Transport Company, supra; N.L.R.B. v. Athens Manu-
facturing Co., 161 F. 2d 8 (C.A. 5); N.L.R.B. v. Tower Hosiery Mills, Inc., 180 F.
2d 701 (C.A. 4); Iron Castings, Inc., 114 NLRB 739.
I believe the record here as a whole indicates that Respondent did not bargain
in good faith as required by the Act and I so find. As pointed out by the court in the
Majure case, supra, the dividing line between good faith and bad faith in cases such
as this is difficult to ascertain. The General Counsel has pointed to numerous things
both general and specific in the negotiations which he contends are indicative of Re-
spondent 's bad faith here. Without attempting to delineate each and every factor in
the evidence pointed to by the General Counsel and considered by me in reaching the
conclusion that I do, I have the distinct impression from the overall evidence and
from my observation of the principals in the negotiations as they testified that regard-
less of the sincerity of any convictions Respondent may have had in connection with
any of the Union's demands, the Respondent was determined not to concede anything
notwithstanding convictions or lack thereof, if it might have any possibility whatso-
ever of resulting in a contract. It seems to me that Respondent's repeated insistence
on reviewing language on matters it said it had no objection to and its failure to
follow up its promises and suggestions that these matters be rewritten was indicative
of deliberate stalling to avoid any chance of having an accumulation of minor accords
which might conceivably result in a completed contract.13
Respondent's refusal to put in contractual form matters that it was already observ-
ing and its statement in the August 24 meeting that it now was going to seek increased
concessions over its previous proposal which, as Berkey pointed out, had "no
resemblance to reasonable instrument for a contract between the Company and the
Union on matters of wages, hours, or work and conditions of employment" and pro-
is That Respondent in each instance may not have specifically committed itself to doing
the rewriting does not absolve it from the responsibility to do so since it was Respondent
that was dissatisfied with the language and had made the suggestion that it be changed
SOUTHWESTERN PORCELAIN STEEL CORPORATION 1743
vided "nothing other than a fundamental right to terminate the contract ," are, I be-
lieve, additional indications of Respondent 's bad faith.
As indicated in the Statement of the Case, supra, the General Counsel alleged in
the complaint that the Respondent refused to bargain by (a) causing unreasonable
delays in scheduling meetings and engaging in surface bargaining , (b) presenting a
wage proposal of a definite lump sum for the purpose of adjusting inequities but
reserving to itself the selection of the individuals to be adjusted; (c) proposing a
grievance clause providing that if either side used it the contract might be set aside;
and (d) entering into unilateral changes in rates of pay "applicable particularly but
not exclusively to new employees." I am not sure whether the General Counsel
means that each of the above items considered separately constitute independent vio-
lations of Section 8(a) (5) of the Act. While I might not consider some of them as
such, I do not believe and find (perhaps for reasons different than the General Coun-
sel's) that they all contribute in some measure to what I conclude was Respondent's
failure to bargain in good faith.
Thus, as to unreasonable delays in scheduling hearings, while I would not on
the evidence herein find bad faith on the part of Respondent in this connection as
such, this does not mean that in the overall picture in this respect Respondent's
conduct was conducive to effective collective bargaining . Although both sides
had occasion to postpone or delay meeting, the great majority of such delays or post-
ponements were caused by the Company. While most of these occasions were
supported by plausible excuses, I would not include among them the vacation of
one of the company negotiators, Walton C. Russell.14 Nor do I deem the strike
as being a legitimate excuse for a lapse of some 24 days between meetmgs.15
As for the unilateral change of wage rates alleged by the General Counsel to
have been made by Respondent applicable "particularly but not exclusively to new
employees" the facts are these: Respondent's practice for years before the strike
was to hire all employees as general laborers at a minimum rate no higher than
$1.25 an hour and as they learned ,or demonstrated needed skills to promote them
and increase their rate . In order to operate after the strike started Respondent
obviously could not rely on its on-the-job training to develop needed skills and began
hiring skilled classifications at rates comparable to those it had been paying.16 It
also hired several general laborers after the strike began at rates 10 to 15 cents higher
than it had customarily paid to new hires in that classification before. There is no
evidence that any incumbent employee received a raise after the strike began.
While I would not impugn Respondent's good faith by the change it made in its
procurement of skilled classifications after the strike began, I do consider it evidence
of bad faith on Respondent's part to have begun hiring general laborers at rates
higher than it had paid such classifications prior to the strike.
Also, whether or not the grievance procedure proposed by the Respondent can
be interpreted as the General Counsel has interpreted it, I find that as a means of
settling grievances it amounted to a virtual nullity. As I have previously observed
in a similar case with Board approval, the submission of such empty and meaning-
less clauses "show a preoccupation with the form of bargaining" as distinguished
from the substance and tends to further cast doubt upon the Respondent's good
faith. White's Uvalde Mines, 117 NLRB 1128, 1161.
I do not agree with the General Counsel that Respondent's lump sum wage pro-
posal reserved to Respondent the selection of those to whom increases would be
made in a manner that in itself was illegal or necessarily demonstrated bad faith
on the part of Respondent for that reason. If•it had been shown that those who
would have gotten increases under Respondent's proposal were opposed to the Union
or had voted against it there might be merit in the General Counsel 's contention.
is In a letter dated May 27, 1960 , to Respondent's president, C F Maroney, the Union
objected to a delay to June 6 for the second meeting caused, according to the Union, by
Russell's vacation In the Company's reply the following day, Rheam pointed out that
he was going to be involved for at least 2 days in an "unfair labor practice case" starting
June 1 Nowhere in the record, however, was there a denial that Russell's vacation was
the reason Respondent would not meet between May 26 and June 1.
151n making this observation I am aware of and find that-during this period an in-
junction proceeding involving the picketing and restraining both the Union and the
Company from coercive conduct was disposed of by consent of both sides
11 Most of these new hires were at or near the top rates being then paid by Respondent
for the classifications in question.
1744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
But all the evidence shows is that Respondent was willing to make an increase to
a certain class of employees on the basis of a stated formula.
Rather than showing bad faith, the question is whether or not Respondent's wage
offer indicates just the opposite and absolves Respondent of any alleged unfair labor
practice. In view of the record as a whole I am of the opinion and find that not-
withstanding this offer, Respondent had no intention of entering into a contract
with the Union and did not bargain in good faith as required by the Act. Re-
spondent undoubtedly was fully cognizant of the untenable position the Union would
be in if it were to accept an offer resulting in a wage increase to only about half
of the employees. Accordingly it could make the offer with reasonable assurance
that it could not and would not be accepted. And even if accepted it did not have
to result in a contract unless the Union were willing to agree to the complete sur-
render of any authority or voice in the employees' terms or conditions of employ-
ment as demanded by Respondent under its view of its prerogatives.
For these and other reasons, I find that from May 18, 1960, Respondent refused
to bargain with the Union as required by Section 8(a) (5) of the Act. I also find
that the strike which took place on August 2, 1960, was caused and prolonged by
Respondent's refusal to bargain and thus was an unfair labor practice strike. Thayer,
Inc., of Virginia, 125 NLRB 222; White's Uvalde Mines, supra.
Among the reasons for my conclusion that Respondent has refused to bargain
are certain admissions by Respondent reflected in the following evidence:
According to the undenied and credited testimony of John Breashears, Orville
Bryan, a supervisor in the metal department,17 asked him sometime in July 1960
how he was going to pay for his new car when he was out on the picket line. When
Breashears wanted to know who said anything about a picket line, Bryan com-
mented, "Well, the company is not going to sign a contract withthe Union."
According to the undenied and credited testimony of Albert Preston Woods, a
former supervisor of Respondent, a day or two after the election as he was passing
Respondent's president, Maroney, in the hall, the latter said, "Well, they won the
election but now they've got to get a contract." Later that day according to Wood's
further credited testimony, Maroney told him in the office, `The boys have won
the election, but that didn't mean that they were going to get a contract" because
he was under no obligation whatsoever to sign a contract and that he would "negoti-
ate their ass off if that's what they want." 18
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection 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 com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, it shall
be recommended that the Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act. As the Respondent
on May 18, 1960, and at all times thereafter has refused to bargain collectively with
the Union as the certified representative of its employees in an appropriate unit
with the good faith required by the Act, it will be recommended that the Respondent,
upon request, bargain collectively with the Union, and, if an understanding is
reached, embody such understanding in a signed agreement.
It has also been found that the strike by the Respondent's employees which began
on August 2, 1960, and was in progress at the time of the hearing was caused and
17 Although Respondent claimed that Bryan was only a leadman and vigorously denied
that he was a supervisor within the meaning of the Act, the evidence shows the contrary
and I so find. Thus It appears that Bryan took an employee, Julius Cooper, to the office
for loafing with the result that he left Respondent's employment. Two of Bryan's super-
visors (Emery Vess and Don Bushnell) who were involved in this matter admitted that
they would give more weight to Bryan's recommendations than to those of the rank-and-
file employees. It also appears that Bryan regularly attended supervisory meetings with
management at which no rank-and-file employees were ever present
"As for his comment to Woods, Maroney testified that he could not recall exactly what
was said and admitted that the remarks attributed to him by Woods "might be pretty well
in line with what I might have said, but I'll say this: at no time have I said I would not
sign a contract."
PULLEY FREIGHT LINES, INC. 1745
prolonged by the Respondent's unfair labor practices and thereby was an unfair labor
practice strike. Employees who were on strike on that date and thereafter thus be-
came unfair labor practice strikers who were entitled to reinstatement upon appli-
cation irrespective of whether their positions had been. filled by the Respondent's hire
of other employees as replacements for them. Accordingly, in order to restore the
status quo as it existed prior to the strike and thereby to effectuate the policies of the
Act, it will be recommended that the Respondent shall, upon application, offer rein-
statement to their former or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, to all their employees who were on
strike on and after August 2, 1960, dismissing, if necessary, any persons hired
after that date. It is also recommended that the Respondent be ordered to make
whole those employees who were on strike on and after August 2, 1960, for any
loss of pay they may have suffered or may suffer by reason of the Respondent's
refusal, if any, to reinstate them, by payment to each of them a sum of money equal
to that which he normally would have earned as wages during the period from 5 days
after the date on which he applied for reinstatement, to the date of Respondent's
offer of reinstatement. Loss of pay shall be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth Company, 90 NLRB 289;
N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Southwestern Porcelain Steel Corporation is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. United Steelworkers of America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. The aforesaid labor organization at all times since April 27, 1960, has been
the duly designated exclusive bargaining representative of Respondent's employees
for the purposes of collective bargaining within the meaning of Section 9(a) of the
Act in the following appropriate unit:
All production and maintenance employees at Respondent's Sand Springs,
Oklahoma, plant, including warehousemen, inspectors, shop janitors and all in-
plant truckdrivers, exclusive of all office clerical employees, confidential
employees, guards, and supervisory employees as defined in the Act.
4. By failing and refusing at all times since May 18, 1960, to bargain collectively
with the aforesaid labor organization as the exclusive representative of the employees
in the foregoing 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. 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.]
Pulley Freight Lines , Inc. and District Lodge 118, International
Association of Machinists , AFL-CIO. Case No. 18-CA-19258.
December 29, 1961
DECISION AND ORDER
On October 19, 1961, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
134 NLRB No. 169.
630849-62-vol. 134-111