The Freeman Co.

National Labor Relations Board - Board Decisions

Dec 16, 1971

194 N.L.R.B. 595 (N.L.R.B. 1971)

THE FREEMAN CO.
The Freeman Company and General Drivers and
Helpers Union, Local No. 749, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Cases
18-CA-2959 and 18-CA-3002
December 16, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On January 28, 1971, Trial Examiner George L.
Powell issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, 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 General Counsel, the Respondent,
and the Intervenors 1 each 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.
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, the briefs, and
the entire record in the case, and hereby adopts the
findings,2 conclusions, and recommendations of the
Trial Examiner only to the extent consistent herewith.
1. The Trial Examiner found, inter alia, that
during the period between October 1969 and April 10,
1970, Respondent violated Section 8(a)(5) of the Act
by negotiating with the Union with no intention of
entering into a final or binding collective-bargaining
agreement. We disagree.
After conducting an organizing campaign during
August and September 1969,3 the Union, on Septem-
ber 22, filed a petition with the Board's Regional
Office seeking a representation election among
certain of Respondent's aircraft parts manufacturing
1 The following employees intervened at the hearing. Gerald Mach,
Stanley Schoenberner, Harry Ugofsky, Ed Holec, Andy Nielsen, Edmund
Rempfer, Ted Schneider, William Dvoracek, Sally Sudbeck, Kathy Boska,
Jim Boska, Margaret Dvoracek, Ruth Sternhagen, Marie Lane, Louise
Slagle, Judy Wieseler, Arlene McHenry, Fern Sternhagen, Josephine
Braunesreither, Adeline Brown, Evelyn Jensen, Glenn Taggart, Alphonse
Schrempp, Chris Christopherson, Phay Howen, Richard Wood, Kathleen
Neville, Charles Huber, Elmer Anderson, Reuben Hieb, Wanda Welby,
Karen Eilmis, and Kenny Kaiser
2 Respondent excepts to certain credibility resolutions made by the
Trial Examiner It is the Board's established policy not to overrule a Trial
595
plant employees. At the same time, the Union wrote
Respondent requesting recognition on the basis of the
Union's claimed majority status. After initially
declining to recognize the Union, Respondent's
attorney, William Harding, met with Union Business
Agent Clem Weber on October 1 and executed a
recognition agreement without first conducting a card
check. The agreement was executed in consideration
of the Union's withdrawing its representation peti-
tion, which it subsequently did.
Weber had met with the employees on September 30
to discuss their problems and, at the October 1
bargaining session, he orally presented approximately
35 demands to Respondent. He also asked Harding
for a list of employees showing their job classifications
and pay rates. This information was supplied to the
Union on October 23. No in depth discussion of the
Union's demands occurred at the October 1 meeting
and Weber, at its close, indicated that it would take
the Union about 3 weeks to prepare written contract
proposals, which the Union would then send to
Attorney Harding.
The Union sent its written proposals to Harding on
October 23, noting that clauses concerning the
workweek, overtime, wages, and job classifications
and descriptions would be submitted in the future.4
The Union also asked for a meeting on November 3.
By letter dated October 24, Harding confirmed this
date for the meeting.
The parties met on the evening of November 3.
Weber, at Harding's request, read each of the
proposed contract's 36 articles, explaining the Un-
ion's understanding, of each section's language.
Harding indicated that counterproposals to certain
sections would be submitted, but that as to other
clauses Respondent was not sure whether it would
tender counterproposals. The Union agreed to certain
changes in its proposals, which were sent to Respon-
dent on November 6. At the close of the meeting
Harding said he wanted to check his calendar for a
date on which to resume negotiations. At this meeting,
the Union also requested certain information regard-
ing dates of hire, hours of work, and shifts.
On November 11, Harding sent Weber certain
corrections and additions to the Union's proposals
and asked for a copy of a trust agreement referred to
in the Union's proposed contract. He also indicated in
Examiner's resolutions as to credibility unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Such a
conclusion is not warranted here. Standard Dry Wall Products, Inc, 91
NLRB 544, enfd. 188 F.2d 362 (C.A. 3).
3 All dates are 1969 unless otherwise indicated.
4 Such proposals were apparently omitted by the Union pending receipt
by it of the information requested on October 1. The wage data was
received on October 23, and other materials concerning employee working
conditions, e g., shifts and hours of work, were furnished the Union during
negotiations. However, it never submitted the above-enumerated contract
proposals.
194 NLRB No. 84
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his letter that he would require at least 3 weeks to
prepare counterproposals. Harding suggested a meet-
ing during the first week of December rather than
during the November 17-21 period previously sug-
gested by Weber. On November 18, Weber sent
Respondent certain requested literature about the
Union's pension plan and indicated that he was
looking forward to a meeting with Respondent the
first week in December.
On November 25, Harding sent Weber information
previously requested about the hours of work, dates of
hire, and shifts. On December 11, Respondent sent
the Union its counterproposal containing 60 articles.
The next meeting was held on December 14. At this
meeting, the parties discussed, inter alia, the transfer
of employees between job classifications; the supervi-
sory status of certain employees; the length of the
then current workweek, which the Union contended
was longer than 40 hours; and the number of stewards
the Union would have. The counterproposals were
discussed article by article through article 22, with
some agreement being reached. The parties agreed to
rewrite other clauses. Additional meetings were
scheduled for January 5, 6, and 7, 1970.5
At the January meetings, the remainder of Respon-
dent's counterproposals was discussed. Certain arti-
cles were agreed to; some articles were bypassed;
Respondent agreed to add to other articles or rewrite
their language; and the Union agreed to rework the
clause dealing with medical and maternity leave, as
well as other provisions of its proposed agreement.
However, as the record does not reveal the details of
the discussions between the parties, it is impossible to
determine what give-and-take, if any, occurred during
these meetings. At the end of the January 7 meeting,
the parties agreed to meet again during the last week
of January.
On January 14, Weber wrote Harding noting, inter
alia, those proposals agreed to and commenting that
Respondent had not granted any of the Union's
demands. However, Weber agreed to send certain
rewritten sections of the proposed agreement to
Harding and meet again. On January 16, Harding
suggested a meeting on February 2. He also forward-
ed to Weber a list of employees by departments, as
requested on January 5 or 6. On January 29, Harding
inquired of Weber as to the Union's failure to confirm
the February 2 meeting date. Thereafter, on January
30, Harding sent a letter recapitulating the proposals
agreed on, those that the Union was preparing new
language for, those Respondent was rewriting, and
indicated that he would have to discuss certain
articles with Respondent's owner and general manag-
er, Ed Freeman, prior to the next meeting. On January
31, the Union called off the planned February 2
meeting.
No further contact between the parties occurred
throughout February 1970.
During early March 1970, a petition circulated
among the employees which stated that the employees
wished to resign from the Union and no longer
wanted to have the Union represent them. On March
6, the Union and Respondent received telegraphic
copies of the petition signed by 32 of the then 59 unit
employees. While the parties on March 1 had
discussed resuming negotiations, on March 9 Harding
wrote Weber noting that because of the scope of the
support for the petition Respondent would appreciate
the Union's comments concerning the propriety of
continuing negotiations. On the same day, Respon-
dent sent the Union a telegram stating that it desired
to give the employees a wage increase which had been
held up as the result of the contract negotiations and
that, unless it heard from the Union by March 12, it
would assume that the Union had no objection to the
grant of this increase.
On March 12, Respondent, not having heard from
the Union, put into effect a general 5-percent wage
increase. On March 9 and 20 and May 21 it also
unilaterally made certain shift changes and reductions
in work hours.
On March 23, Weber wrote Harding stating that the
Union desired to continue negotiating and hoped to
meet with Respondent after Easter. On April 6,
Harding replied, expressing a willingness to discuss
some of the matters relating to resuming talks,
including the Union's position in light of the antiun-
ion petition. Weber responded by asking for a
meeting on April 13. On April 10, Harding, noting a
telephone conversation with Weber on April 9 in
which Weber indicated that the Union had filed an
unfair labor practice charge and the Union's failure to
submit a statement of position with respect to the
antiunion petition, declined to meet with the Union
on April 13. Respondent subsequently filed a repre-
sentation petition and on May 19 wrote Weber stating
that no further negotiations would be scheduled
because it doubted the Union's majority status.
In concluding that Respondent did not bargain in
good faith between October 1, 1969, and April 10,
1970, the Trial Examiner commented that after
voluntarily recognizing the Union, Respondent ap-
parently did not intend to commence immediate
bargaining with the Union, as shown by his finding
that Respondent did not furnish the wage rate
information requested by the Union on October 1
until 6 weeks later, on November 12. However, the
record shows, and we find, that Respondent mailed
5 Hereafter, all dates are 1970 unless otherwise indicated
THE FREEMAN CO.
such information to the Union on October 22, within
3 weeks of the request, and that the Union received it
on October 23. The 3-week delay was explained by
Harding in a letter to Weber on October 12 as
occasioned by Freeman's temporary absence from the
plant and Freeman's secretary's inability to release
such material without Freeman's approval. Moreover,
Weber does not seem to have been concerned about
the delay in furnishing the information. The Trial
Examiner's inference from his mistaken finding as to
the date Respondent furnished the requested informa-
tion is therefore unwarranted.
At the second negotiation session, held on Novem-
ber 3, the Union read its contract proposals, and
Harding indicated that as to some of the clauses
counterproposals would be made, but he was not sure
whether counterproposals would be made to other
clauses. The Trial Examiner commented that written
counterproposals should have been ready for presen-
tation at this meeting, or Harding should have made
an effort to state them orally. The failure to do so,
according the Trial Examiner, shows that Respondent
was not bargaining in good faith. However, in view of
the fact that Harding did not receive the Union's
written proposals until October 27 and that the Union
had required 3 weeks to prepare them, we attach no
significance to the fact that Respondent was not ready
with its own counterproposals only a week after
receiving the Union's written demands.
The Trial Examiner also finds evidence of bad faith
in Harding's statement at the end of the November
meeting that he would have to consult his calendar
before agreeing to a date for the next meeting.
According to the Trial Examiner, Harding should
have done this before the meeting. We do not find this
persuasive especially since there is no evidence that
this minor incident was designed or utilized to delay.
In fact, Weber did not object to Harding's expressed
desire to check his calendar, and the parties subse-
quently agreed on the date for the next meeting.
At the November 3 meeting, Weber orally asked
Harding for information about the employees' hours
of work, shifts, and dates of hire. After the meeting,
Harding apparently unsuccessfully attempted to
telephone Weber to verify the information the Union
wanted. Finally, on November 11, Harding wrote
Weber asking the latter to contact him so that
Harding could be certain he understood exactly the
information required and thus could get it to Weber
as soon as possible. Weber did contact Harding and,
on November 12, Harding wrote Weber enumerating
the information Harding was obtaining from Respon-
dent. This information was furnished on November
25, about 3 weeks before the next scheduled meeting
on December 14. The Trial Examiner apparently
regarded Harding's November 11 letter as a delaying
597
tactic. We, again, disagree. The negotiating meetings
were then in recess while Respondent prepared its
counterproposals. Respondent furnished the informa-
tion requested on November 3 well in advance of the
next meeting (December 14) and in ample time for the
Union to use it in preparing any additional contract
proposals. The November 11 letter facilitated negotia-
tions, we believe, by permitting Harding to provide
the correct information thereafter, in timely fashion.
The Trial Examiner also characterized Respon-
dent's refusal to permit Weber to inspect the plant,
while asking the Union how many stewards it
proposed to have, as another tactic designed to draw
out negotiations and inhibit agreement. We disagree
since even without an onsite examination of the plant
the Union could have obtained a sufficiently accurate
picture of the plant layout from the employees whom
it represented to determine the number of stewards it
would need, especially since there were only about 80
employees involved.
The parties met at negotiating sessions on Decem-
ber 14, 1969, and January 5, 6, and 7, 1970. During
these meetings, they discussed at length Respondent's
counterproposals. While the record does not indicate
exactly what was said at these meetings, it does show
that all the articles in the counterproposal were
discussed by the parties with agreement being reached
on some clauses. The next meeting was scheduled for
February 2, but the Union called this off and made no
further attempt to meet with Respondent until March.
Thereafter, Respondent refused to meet further with
the Union because it had received the employee
petition repudiating the Union.
We do not believe that Respondent's conduct from
October 1, 1969, the date of recognition, to March 6,
1970, the date Respondent received notice of the
employee petition disavowing the Union, established
that Respondent was not bargaining in good faith
with the Union. The parties were negotiating an initial
collective-bargaining contract. Respondent supplied
the information requested by the Union, met with the
Union at reasonable times and places to conduct
negotiations, made counterproposals to the Union's
proposals, and did agree with the Union on some
clauses during negotiations. While progress was not
rapid, there was some progress. The Union, however,
at no point in the negotiations presented demands on
such important items as wages, overtime, length of the
workweek, job descriptions, and job classifications. It
was the Union which canceled the scheduled Febru-
ary 2 meeting and for approximately 4 weeks
thereafter made no attempt to arrange further
meetings. We hold, therefore, that the General
Counsel has not proven by a preponderance of the
evidence that Respondent did not bargain in good
faith prior to March 6, 1970.
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This, however, does not fully dispose of the refusal-
to-bargain allegations if Respondent were still obli-
gated to bargain with the Union during March and
April 1970, when it concededly did refuse to resume
bargaining with the Union and unilaterally changed
certain working conditions. The Union was never
certified as the exclusive bargaining representative of
Respondent's employees, and therefore the 1-year
certification rule is not applicable .6 However, in
Keller Plastics,7 the Board held that where a bargain-
ing relationship has been established as the result of
voluntary recognition of a majority representative
"the parties must be afforded a reasonable time to
bargain and execute the contracts resulting from such
bargaining." What is a reasonable time for bargaining
depends on the circumstances surrounding each
particular case.
Here, Respondent bargained with the Union from
October 1, 1969, to February 2, 1970, when the Union
canceled the meeting scheduled for that date-a
period of 4 months. After the February meeting was
canceled, the Union made no attempt to resume
negotiations for 1 month. In view of the period of
actual good-faith negotiations, and the Union's
failure to press the negotiations after February 2, we
conclude that a reasonable time had been given the
parties for the conduct of negotiations. If, therefore,
Respondent thereafter believed in good faith on the
basis of objective considerations that the Union no
longer represented a majority of its employees in the
appropriate unit then Respondent was justified in
refusing to resume bargaining with the Union.
Respondent's belief after March 6 that the Union
had lost its majority was based on the receipt by it of a
telegram wherein 32 of 59 unit employees indicated
that they had resigned from the Union and no longer
wished to have the Union represent them. This
communication would appear to justify a good-faith
belief in the loss of the Union's majority, unless, of
course, Respondent was somehow responsible for the
petition.
The Trial Examiner found that Respondent did not
instigate the antiunion petition in early March 1970.
However, citing "ample evidence," the Trial Examin-
er found that Respondent assisted and supported the
petition. We agree that there is no evidence of
6 Ray Brooks v N L R B, 348 U S 96
7 Keller Plastics Eastern, Inc, 157 NLRB 583, 587
8 As none of the other 8(a)(1) violations found resulted from incidents
occurring prior to Respondent's receipt of the petition, we find that they do
not constitute evidence that Respondent supported and assisted the
antiunion drive.
9 In any event, we would not adopt the Trial Examiner's finding that
the grant of the wage increase was a unilateral act. Early in the contract
negotiations, Weber had written Harding that the Union was not opposed
to a wage increase being granted through negotiations prior to the
finalization of the contract On March 9, Harding sent a telegram to Weber
stating that Respondent desired to give a wage increase to its employees
employer sponsorship of the petition; however, we are
not persuaded that there is sufficient evidence to
support a finding that Respondent assisted and
supported the petition.
The only evidence of assistance while the petition
was being circulated consists of Supervisor Schneid-
er's statement to employee Fender that if the latter
signed the petition Schneider "practically could
guarantee" Fender a raise. Fender did not sign the
petition. Although Schneider's single unsuccessful
attempt at solicitation on behalf of the petition
violated Section 8(a)(1) of the Act, it is too isolated an
incident to support a finding that the petition was
thereby tainted by Respondent's support.8
After receiving the petition showing employee
disaffection, Respondent put into effect a general
wage increase, made certain shift and hour changes,
and refused to bargain further with the Union on and
after April 10. The Trial Examiner found that such
conduct violated Section 8(a)(5) of the Act. However,
inasmuch as we have concluded that Respondent then
was under no duty to bargain with the Union, we do
not adopt the Trial Examiner's finding that Respon-
dent violated Section 8(a)(5) of the Act in this regard.9
As we have not adopted the Trial Examiner's
finding that Respondent violated Section 8(a)(5) of
the Act in any manner, we shall dismiss this allegation
of the complaint.10
2. While we adopt the Trial Examiner's findings
that Respondent violated Section 8(a)(1) of the Act by
certain supervisor's statements," we-do not agree
with his additional finding that these statements
indicated that Respondent assisted and supported the
antiunion petition, as noted supra. Moreover, while
we agree that certain employees' hours were changed
and reduced in violation of Section 8(a)(1), but not
Section 8(a)(5), we do so because of the statements
made to the employees at that time and place no
reliance on the Trial Examiner's assertion that this
finding is also supported by Respondent's encourage-
ment of the antiunion petition. While Respondent
unlawfully sought retribution from certain employees
most active on behalf of the Union, it does not follow
that prior thereto Respondent engaged in conduct
designed to undermine the Union's majority status.
and that if Harding did not hear from Weber within 3 days Respondent
would assume that the Union had no objection and the increase would be
put into effect . When Weber failed to express any objection, the wage
increase was made operative . Holiday Inn Central, 181 NLRB No 160.
is In view of our disposition of this allegation , we need not pass on
Respondent's assertion that the complaint as drawn did not comply with
the Board 's Rules and Regulations
11 We find, contrary to the Trial Examiner , that Schneider's comment to
Fender that management would be overwhelmed or happy if Fender and
employee Ehnsmann signed the petition is not an unlawful promise of
benefit within the meaning of the Act
THE FREEMAN CO. 599
THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, the Board will order, Respon-
dent to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies
of the Act.
Having found that Respondent discriminatorily
reduced and changed the hours of employment of
employees James Eli, Gary Fender, Robert Wittmei-
er, and Alvin Hermann, the Board will order
Respondent to offer them backpay for any loss of
earnings they may have suffered as the result of such
discrimination.12 The backpay for the foregoing
employees shall be computed in accordance with the
formula approved in F. W. Woolworth Co., 90 NLRB
289, with interest computed in the manner and
amount prescribed in Isis Plumbing & Heating Co.,
138 NLRB 716, 717-721. We shall also order
Respondent to preserve and make available to the
Board, or its agents, on request, payroll and other
records to facilitate the computation'of backpay due.
Having found that Respondent has not engaged in
certain other unfair labor practices, the Board will
dismiss those allegations of the complaint not
specifically found herein.
AMENDED CONCLUSIONS OF LAW
Delete Conclusion 4 of the Trial Examiner's
"Conclusions of Law" and substitute therefor the
following:
"4. General Drivers and Helpers Union, Local
No. 749, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
was, on October 1, 1969, and until approximately
March 6, 1970, remained, the exclusive collective-
bargaining representative of Respondent's employees
in the appropriate unit, within the meaning of Section
9(a) of the Act."
Delete Conclusion 8 of the Trial Examiner's
"Conclusions of Law" and substitute therefor the
following:
"8. By reducing hours and making shift changes
for employees Eli, Fender, Hermann, and Wittmeier
because they were active on behalf of the Union, the
Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act."
Delete Conclusions 5 and 6 of the Trial Examiner's
"Conclusions of Law" and renumber the remaining
conclusions accordingly.
12 The General Counsel excepts to the Trial Examiner 's failure to
provide this remedy despite the Trial Examiner's finding that the hour
changes were discrimmatonly motivated. Having adopted that finding, we
agree with the General Counsel's contention and hereby correct the Trial
Examiner's apparent oversight in not recommending the appropriate
remedy DiVincenu Brothers, Inc, 156 NLRB 153
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent, The
Freeman Company, Yankon, South Dakota, its
officers, agents, successors, and assigns, shall take the
following action:
1. Cease and desist from:
(a) Making observations that a loss in overtime
hours was due to a failure to sign an antiunion
petition; a raise in pay could be guaranteed an
employee if he signed an antiunion petition; that
"things were going to get rough" if an employee did
not stop talking about the Union; and that some
employees would probably get back the overtime
hours lost by their union activities if they were "good
boys";
(b) Discriminatorily reducing and changing em-
ployees' hours of employment because they have
engaged in activity on behalf of a union; and
(c) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their rights to self-organization, to form, join, or
assist any labor organization, or to engage in other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer employees James Eli, Gary Fender, Robert
Wittmeier, and Alvin Hermann backpay for any loss
of earnings they may have suffered by reason of the
discrimination against them, in, the manner set forth
in the section of this Decision and Order entitled "The
Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its place of business in Yankton, South
Dakota, copies of the attached notice marked
"Appendix." 13 Copies of said notice, on forms
provided by the Regional Director for Region 18,
after being duly signed by Respondent's representa-
tive, shall be posted by Respondent immediately upon
receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
i3 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD "
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 18, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges violations of
the Act not specifically found herein.
MEMBER JENKINS, dissenting:
Contrary to my colleagues, I agree with the Trial
Examiner's findings that during the period between
October 1969 and April 10, 1970, Respondent
violated Section 8(a)(5) and (1) of the Act by engaging
in "surface" or "sham" bargaining and by negotiating
with no intention of entering into a final and binding
collective-bargaining agreement. I also agree with the
Trial Examiner, on the basis of the credible evidence,
that the General Counsel has fully met his burden of
establishing further 8(a)(5) violations on the part of
the Respondent by unilaterally changing, reducing,
and rearranging the hours of employment of employ-
ees, by unilaterally putting into effect a general wage
increase for its employees on March 12, 1970, and by
refusing to meet and bargain collectively with the
Union on and after April 10, 1970. Indeed, in my
view, the Respondent has never met its obligation to
bargain in good faith with the Union.
As more completely set forth by the Trial Examiner,
and as amply supported in the record, from October
1969 to May 1970, the parties held three negotiation
sessions. At the first session on November 3, Respon-
dent insisted that the Union orally read its complete
proposal despite the fact that the Respondent had
received this proposal well in advance of the meeting.
At the second meeting on December 14, Respondent
insisted on discussing in detail its own proposal
making only the most minuscule adjustments on
insignificant items. Indeed, a close examination of
Respondent's proposals clearly reveal Respondent's
lack of good faith in dealing with the Union. Thus,
Respondent proposed and insisted upon the elimina-
tion of many benefits then enjoyed by the employees
while offering little or nothing in return. At the
meeting of January 5, Respondent again limited itself
to a discussion of only a few insignificant items.
Indeed, as summed up by Harding in his letter of
January 30, after 4 months of "bargaining," and after
stripping away the Respondent's flood of letters,
suggestions, questions, and delay, the Respondent
had agreed only to the social security clause, the
military clause, the voting rights clause, and the
retirement clause. Indeed, these items were already
obligated under other Federal and state laws and can
hardly be viewed as significant agreements or even
any type of bargaining by Respondent. The foregoing
course of bargaining and continued delay by the
Respondent compels the conclusion that Respondent
failed to meet its bargaining obligations under Section
8(a)(5) of the Act.
Respondent's efforts completely to thwart good-
faith bargaining became even more patent from its
conduct .in March. Thus, as found by the Trial
Examiner, the natural and foreseeable consequences
of its bargaining tactics began to appear in March
when the employees became restive because there
were no signs of fruitful contract agreement. While
Respondent cannot be found to have instigated the
antiunion petition, it is clear from the credited record
evidence that it seized upon the opportunity, created
by its own unlawful bargaining conduct, to assist and
support the antiunion movement by further unlawful
conduct. In this regard, as found by the Trial
Examiner, the Respondent unlawfully threatened
employees with reprisals and promised them benefits
if they were to sign the petition. Significantly, for
those employees like Fender and Wittmeier, who were
trying to maintain union solidarity in the face of
Respondent's unlawful conduct and who did not heed
Respondent's threats that "things were going to get
rough" if they did not stop talking about the Union or
Respondent's "guarantee" of wage increases if the
antiunion petition was signed, Respondent immedi-
ately and unlawfully changed, reduced, and rear-
ranged their hours of employment. And ultimately, as
the coup de grace to the Union, Respondent unilateral-
ly placed in effect a general wage increase for its
employees. By April 10, Respondent abandoned all
disguises, and refused to meet and bargain with the
Union.
Because the Trial Examiner's analysis of the
evidence as I have outlined herein is more persuasive
than that of my colleagues, I would adopt the Trial
Examiner's conclusions and recommendations.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discriminate against our employ-
ees because of their union activities by reducing
and changing their hours of employment.
WE WILL NOT threaten our employees with loss
of overtime because they failed to sign a petition
seeking removal of a union as the collective-
bargaining representative, nor will we promise
increased overtime if the employees cease their
activities on behalf of a union.
THE FREEMAN CO. 601
WE WILL NOT promise a pay raise to employees
for signing an antiunion petition.
WE WILL NOT threaten that "things will get
rough" if an employee does not stop talking about
unions.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of their right to self-organization, to
form, join, or assist any 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, or to
refrain from any and all such activities.
WE WILL offer employees James Eli, Gary
Fender, Robert Wittmeier, and Alvin Hermann
backpay for any loss of earnings they may have
suffered by reason of our reducing their hours of
employment because of their union activity.
Dated By
THE FREEMAN COMPANY
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 316 Federal Building, 110 South Fourth Street,
Minneapolis, Minnesota 55401, Telephone
612-725-2611.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE L. POWELL, Trial Examiner: Upon charges filed
on April 13, 1970, and May 25, 1970, in Cases 18-CA-2959
and 18-CA-3002 respectively, by the General Drivers and
Helpers Union, Local No. 749, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union or Charging Party,
against The Freeman Company, herein called Respondent,
the Regional Director for Region 18 of the National Labor
Relations Board, herein called the Board, issued a
complaint on August 28, 1970, amended September 22,
1970, alleging violations of Section 8(a)(1) and (5) of the
National Labor Relations Act, as amended (29 USC Sec.
151, et seq), herein called the Act. In its duly filed answer,
Respondent, while admitting certain allegations of the
complaint, denied the commission of any unfair labor
practices.
I Corrections in the record, pursuant to motion of Respondent, are
hereby made
Pursuant to notice a trial was held before me in Yankton,
South Dakota, on September 30 and October 1, 1970, where
the parties were present, were represented by counsel, were
afforded full opportunity to be heard by examination and
cross-examination of witnesses, and were permitted to
present oral argument and file briefs. Briefs were filed by
the General Counsel, the Respondent, and the Intervenors
on November 4, 1970. On the entire record of evidence,'
and from my observation of the witnesses as they testified2
and on due consideration of the briefs, I find, for the
reasons hereinafter set forth, that the General Counsel
established by a preponderance of the evidence that
Respondent refused to bargain in good faith in violation of
Section 8(a)(5) and (1) of the Act by refusing to bargain
with the majority representative of the employees in an
appropriate unit and by making unilateral changes in
wages. I recommend that the violations of the Act be
remedied by ordering Respondent to cease and desist from
its illegal conduct and bargain in good faith with the Union
for a year from this decision, if necessary, in an attempt to
reach an agreement as to wages, hours, and terms and
conditions of employment, reducing to writing any
agreement so reached.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. THE EMPLOYER
I find as true the admitted allegations of paragraph 2 of
the complaint respecting the nature and volume of business
carried on by the Respondent, a corporation of the State of
South Dakota engaged in the manufacture and sale of
aircraft parts at its principal place of business at Yankton,
South Dakota and conclude therefrom that Respondent is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
I also find, as stipulated at the hearing by the parties, that
the Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
As noted earlier, the Respondent makes aircraft parts at
its plant in Yankton, South Dakota. Its owner and active
manager is Ed Freeman and its production superintendent
is Earl Saugstad. Respondent's operation is divided into
seven departments or divisions: Welding and cylinder
division, inspection division, aircraft division, tool room,
materials control, turret lathe division, and the automatic
screw machine department. Eugene Schneider was foreman
of the automatic screw department and he and Saugsted are
admitted supervisors within the meaning of the act. William
A. Harding, Esq., is an admitted agent of Respondent.
A. Union activities and bargaining
Union activities began in August 1969, when employee
Gary Fender, together with other employees, decided to
2 Cf. Bishop & Malco, Inc, 159 NLRB 1159, 1161.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
form a union at Respondent's plant and contacted the
Umon. As a result, Clem Weber, business agent of the
Union, met with Fender and other employees at Pearson's
ranch, an outdoor park facility on the outskirts of Yankton.
Weber spoke to the employees of what a union could do for
them pointing out the various ways representation rights
could be gained at Respondent. Weber left authorization
cards with Fender and the others at this meeting which
were to be executed by the employees and returned to the
Union. Further meetings were held in September 1969
where cards again were distributed and solicited. Authori-
zation cards also were solicited and collected during breaks
at the plant, at the homes of employees, and off the plant
property. At the Union meeting on the evening of
September 20, Fender turned over to Weber the numerous
signed authorization cards he had received from the
employees. Upon return to his office, Weber wrote
Respondent claiming majority status and demanding
recognition. At the same time he filed a petition for an
election with the NLRB office in Minneapolis. While
initially refusing to recognize the Union, Respondent's
attorney, William A. Harding, signed a letter of recognition
on October 1, 1969, as follows:
In consideration of [the Union's] withdrawing its
petition for representation in the subject case, The
Freeman Company agrees to recognize the said Union
as the sole and exclusive bargaining representative of its
employees in the unit described in said petition which is
incorporated herein by reference and to begin negotia-
tions immediately with the Union for a collective
bargaining agreement covering the wages, hours, and
working conditions of the employees described in the
unit.
At the October 1, 1969, meeting Weber orally outlined
the Union's demands which he had just received from the
employees at a meeting the evening before. According to
the uncontradicted testimony of Weber, the Union wanted:
job descriptions spelled out; something concerning longevi-
ty; clean restrooms; the parking area to be fixed; another
holiday; time and a half after 32 hours in holiday weeks;
double time for Sundays and holidays worked; a workweek
of Monday through Friday with time and a half for over 8
hours a day; 50 hours of work per week guaranteed; Friday
paydays; seniority, vacation schedule changes; a provision
for sick leave; funeral leave pay; jury pay; lost time due to
injury on the job; an employee pension plan; 15 minute
coffee breaks in midmorning and midafternoon; Respon-
dent to pay for tools used in the work; the installation of
proper ventilation and heat; profits of the vending machine
to go to a recreation fund or Christmas fund; removal of
the cleaning area from the women's toilet; adequate toilet
ventilation; discontinuing the use of the ladies toilet for
storage and assuring them more privacy; more than one
stool for forty ladies; an employee smoking area;
Respondent to permit employees to answer the phone; a 1-
year contract; leadmen to get leadmen pay; cleanup time
before the end of every shift to be on Company time;
probably a dollar an hour increase in wages; aprons for
employees who wanted them; a safety program with safety
goggles and shoes for employees; the Company to provide
for a safe floor; a cost-of-living clause in the contract; a
dues checkoff provision; and personal clothing lockers. At
this same meeting, the Union requested a list of employees
showing their individual classification and rate of pay. This
last request was complied with by Respondent in a letter of
November 12, 1969, some 6 weeks after the request.
On October 13 Harding wrote Weber a letter stating that
Freeman would be out of town and he would be unable to
get his authorization to release the information regarding
job classification and wage rates.
On October 23, 1969, the Union sent a written proposal
(less economic demands) to Harding asking for a meeting
on November 3, 1969. By letter dated October 24, Harding
confirmed this date for the meeting.
On November 3, 1969, at 7 p.m. the parties met. At that
time, Harding advised Weber that the Respondent was not
allowing anybody to take any time off to participate in any
negotiations as far as any committeemen were concerned.
At the Company's request the Umon first read aloud the
entire written proposal which had been sent earlier to
Respondent. At the meeting they discussed whether or not
a committeeman would continue to be in the unit although
he had been elevated to foreman before the meeting. In the
reading of the proposals at the November 3 meeting,
Harding indicated in several places where Respondent
would make counterproposals and in other places where
Respondent was not yet sure that there would be a
counterproposal. Before the meeting broke up the Union
had promised to submit additional proposal language on
some portions to the Company and Harding was to check
his calendar for a schedule for the next meeting and also he
would work up his counterproposals. By letter dated
November 6, Weber sent Harding what he had agreed to
send him and stated that he would be available during the
week of November 17 to November 21. Harding replied by
letter of November 11, 1969, making some typographical
error corrections and asking for a copy of a trust agreement
referred to in article 31 regarding pensions. Harding was
most solicitous about information he had been asked for at
the meeting 8 days earlier on November 3 and wrote as
follows:
I also have some notes here about some information
that you would like relating to the employees current
work week and hours worked. I tried to get in contact
with you by phone today, but was informed that you
were out of the office and would be out for a day or
two; so I left word with your secretary that I had called.
I wanted to have an opportunity to talk with you about
the information that you wanted so that I can be
absolutely sure that I have all of the information you
want jotted down in my notes; so, will you please get in
touch with me at your earliest convenience and I will
make sure that I get the information that you require
out to you as soon as possible.
As for the time for the next meeting Harding concluded
his letter with the following:
As for the time to meet again, since I have been out
of town since our last meeting, and just got back, I have
not had an opportunity to start working on our counter
proposal yet. However, with this information that you
have sent to me, and the trust agreement that I assume
you can get to me within a week or so, I ought to be able
THE FREEMAN CO. 603
to get going on our counter proposal this week. As for
the meeting time, I realize that it took you a little over
three weeks to get the original proposal ready, and I feel
that it will take at least that long to get the counter
proposal ready. From the discussions that I had with
Mr. Freeman when I was in Yankton, I am under the
impression that the preparation of a counter proposal
will take at least several meetings with Mr. Freeman to
adequately prepare a counter proposal on some of the
sections and areas that you have proposed. Not having
worked on negotiations before, I am understandably
somewhat hesitant about putting out a counter proposal
until I have had some opportunity to research the area
and have adequately conferred with Mr. Freeman on
the matter. However, I will certainly make every
attempt to have a counter proposal ready so that we can
have an opportunity to meet sometime around the first
week in December.
Harding then wrote a letter on November 12, 1969, in
response to another phone call from Weber requesting
wage rates, classifications, and the workweek. The letter
told Weber that Harding was asking Freeman to compile
"as soon as possible" the following:"
1) Information relating to the work week presently
being worked by the production-maintenance employ-
ees of the Freeman Company.
2) A listing of the hours currently being worked by the
production and maintenance employees of the Freeman
Company.
3) A listing of all the production and maintenance
employees of the Freeman Company, listing the date
upon which they started employment with the Freeman
Company.
On November 18, Weber wrote Harding enclosing the
trust agreement in regards to the Teamster's pension fund
and tried to confirm a meeting date the first week in
December.
By letter dated November 25, 1969, Harding sent Weber
a sheet of paper containing the information previously
requested by Weber having to do with the shifts and
workweeks in the plant, with a list of 64 employees and
their dates of hire. Then by letter dated December 8, 1969,
Harding confirmed a meeting set for December 14 to
discuss the Company's counterproposal, which would be
sent shortly.
By letter of December 11, Harding enclosed the
Company's counterproposal.
The parties met, as agreed, on Sunday afternoon,
December 14, 1969. At this meeting they talked about how
employees could transfer from one classification to another
and who were supervisors, and they discussed the length of
the workweek with the Company maintaining the employ-
ees were working a 40-hour week with the Union
maintaining that they had never worked a 40-hour week.
Considerable time was spent on talking about how many
stewards would be needed although the Union, not
knowing the plant setup, did not know at that time how
many stewards would be needed. The Company's counter-
proposal was discussed article by article, section by section,
up to and including article XXII.
The parties agreed to rewrite article XIV of the
Company's counterproposal relating to the military service.
It was to be rewritten so as not to violate any Federal or
state law. Harding to rewrite to comply with the Federal
law and Weber to rewrite to comply with state law. Article
XX, sections 1 and 2, were agreed to but not section 3. The
Company's proposal concerning funeral leave without pay
was agreed to, and, finally, section 4 of article XVII was
agreed to be dropped. Money was not discussed.
The parties agreed that the next meeting dates would be
January 5, 6, and 7, 1970, but no place for the meetings was
set.
As planned, the parties met again on January 5, 1970. At
that meeting, considerable time was spent discussing the,
Company's proposed article XXIII relating to holidays
which proposal, according to Weber, was less than the
employees were receiving at that time. The article on
vacations was discussed but no agreement was reached.
The management rights clause was discussed with the
Company wanting to submit a new clause to replace it.
Discussion was had on leave of absences and whether or
not actions granting or denying a leave of absence should
be put into wasting. The Union was to submit its wage
demands later on. There was no agreement on article
XXVII-the guarantee of work, discharge, seniority, jury
duty (company did agree to allow time off for jury duty),
discrimination, and layoffs. They did agree on rehire, social
security, and voting time for employees.
The parties met again on January 6, 1970. At this meeting
they agreed that they would attempt to have a meeting
between January 26 and January 30, 1970, but no later
meetings were ever held.
On January 9 the Company sent the Union a letter with a
pension plan, and on January 16 an insurance plan was
forwarded to the Union.
At the meeting on January 5 or 6, above, Harding asked
Weber to agree to a proposal that there would not be any
wage increases put into effect unless they were negotiated
or unless it was through negotiations. He wished this to be
in writing. Weber checked this with his attorney and found
that this was what the law required but upon reflection he
instructed his attorney not to sign such an agreement
because he felt it could be put on the company bulletin
board and used as argument to the employees that the
Union, not then talking about wages, was in effect keeping
the employees from raises the Company was willing to give
them.
The meetings had not been fruitful as to agreement. The
position of the Union respecting those meetings is set out in
the following letter to Harding dated January 14, 1970:
Mr. Bill Harding Attorney at Law P. O. Box 2028
Lincoln, Nebraska 68501
Dear Bill:
I am in receipt of your letter of Jan. 9th, 1970. In this
letter you express great concern for many things. One
thing you feel is that I must feel there is a hidden trick in
everything the Company proposes.
Well, perhaps it's an oversight (and I assume that it
was) but your letter states that you were enclosing
material on the insurance and pension plan in effect at
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Freeman Company. I find that I have not received
anything on the insurance that is in effect, only did I
receive the Equitable Life Assurance policy that is
relative to the pension , plus the litature on the pension.
This was not a hidden trick as you say, but certainly
worthwhile looking into before agreeing that I had
received the material you indicated.
On the matter of Harry Smith not signing your wage
agreement proposal: I did in fact ask Harry not to sign
this, because I can 't feel that this type of agreement is
needed by either party in this case, and I certainly feel it
could be used to great advantage by you against us at a
later date.
I further feel that if the Company is concerned about
not being able to grant a raise at this time that this could
and should be discussed at negotiation, because I
certainly am not opposed to an increase being granted
through negotiations prior to finalization of this
contract.
You refer to on again off again tactics in your letter,
which you say causes you to reevaluate the results we
are achieving.
If I could detect any sincerity of negotiation on your
part perhaps I could agree that our negotiations are, as
you say, going smoothly.
But then lets look at the record. Thus for the items we
have agreed to are those you have submitted:
1. Voting time: You have agreed to let employees
vote according to state law.
2. Social Security: You will pay the social security
required by law.
3. Rehiring of Quits: You don't have to.
4. Military Leave: Agreed to in your first proposal.
Now you submit an entirely new Article. We agreed
with that also, then you want us to write more into it.
5. Retirement: Agreed. 65 retirement age.
6. Discrimination : Same as law provides.
Perhaps more could have been agreed to if the
Company would have submitted articles that were in
effect now rather than proposing less than what is in
effect now. (Holidays).
Then lets look at the Articles the Union submitted
that have been agreed to. I may be overlooking
something but I can't recall of anything we submitted
that you have agreed to.
Not the best record for four (4) meetings.
You keep requesting the Union to submit proposal
on items such as stewards How many do we want?
When at the same time you refused and continue to
refuse to allow me to inspect the plant so that I can
properly determine how many would be required.
Maybe you are right that my so called on again-off
agam-will delay our reaching an agreement , however I
doubt if it will delay it more than your position
of-offer nothing-agree to nothing.
I will send the rewritten articles you have requested
in another letter as soon as I have completed them, and
do expect to hear from you the end of this week as to a
date you can meet again, as we agreed to in our last
meeting.
SINCERELY,
CLEM WEBER
BUSINESS REPRESENTATIVE
LocAL 749
CW/vin
Additional communications between the parties took
place as follows: On January 14 Harding wrote Weber
about a new part-time employee named Christopherson
and the possible need for a clause on part -time employees.
On January 16, 1970, Harding wrote Weber enclosing the
Bankers' Life Insurance plan, which he said had been
inadvertently left out of the January 9 letter , and a list of
the employees broken down into departments , as requested
by Weber in the meetings of January 5 and 6 . Harding
closed by showing that it would be difficult if not
impossible for him to meet on January 26-30 and he
suggested the next meeting be Monday, February 2, 1970.
On January 29 Harding again wrote Weber asking for
confirmation of the Meeting for February 2. On January
30, 1970, Harding wrote Weber stating his understanding of
what the parties had agreed to and what each party was
going to do about particular clauses. The Union called off
the planned meeting by telegram on January 31, 1970, and
this was acknowledged by the company by letter of the
same day.
On March 9 , 1970, Harding wrote Weber a letter
notifying him of the receipt of a telegram dated Friday,
March 6, 1970, wherein 32 employees in the bargaining unit
(that they did currently place at approximately 59
employees) indicated that they had resigned from the
Union and no longer wished to have the Union represent
them . He asked for Weber's comments regarding the
propriety of continuing negotiations with the Union. On
the same day Harding sent a telegram to Weber notifying
Weber of the Company's desire to give a pay increase and
telling Weber that if he did not hear from him in 3 days the
Company would assume that the Union had no objection
and the wage increase could be put into effect. The
telegram related that this wage increase was an increase
which had been held up due to the wage negotiations. On
March 23 , 1970, Weber wrote Harding that since he had
returned to his office that he noted that there were "quite a
few transactions" that had taken place prior to discussions
with him and that it was still the desire of the Union to
negotiate with the Respondent , requesting a meeting after
Easter. Harding replied to this on April 6 again requesting a
statement of position regarding the legal propriety of
continuing negotiations before scheduling another meeting.
Weber replied to this by letter dated April 8 requesting a
meeting for April 13 . Harding replied on April 10 that
inasmuch as he had not received a statement of position
from the Union regarding the resignations and in view of
the fact that he understood the Union filed unfair labor
practice charges with the Board (filed April 13, 1970) that
he would not meet on April 13 but would be back in touch
to discuss the possibility of further negotiating meetings.
The last letter from Harding to Weber was dated May 19 in
which he advised the Union that the Company questioned
THE FREEMAN CO. 605
the majority status of the Union and notified the Union
that it had filed a representation petition for an election
(Case 18-RM-717).
It was stipulated that on March 12, 1970, Respondent
granted its employees a general wage increase of 5 percent.
This followed a telegram dated March 9, 1970 from
Harding to Weber which said, "The Company would like to
give a pay increase which has been held up due to pending
negotiations over the matter of negotiated wage increases
and unless I hear from you to the contrary by Thursday,
March 12, 1970, the Company will assume that the Union
has no objection to the Company giving this wage
increase." There was no evidence that the Company ever
brought up this desire on its part at any of the meetings.
Throughout early March 1970 two employees, Gerald
Mach and Stanley Schoenberner, circulated an antiunion
petition among the employees at the plant and sent a
telegram to the Company on March 6, 1970, disavowing the
Union, as noted above.
On March 9, 1970, hours of work were reduced and shift
rescheduling was made unilaterally by the Company for
employees James Eli, Robert Wittmeier, Dennis Kleinsch-
mit, Dan Ehrismann, George Richmond, and Gary Fender.
Similar changes were made on March 20, 1970, for
employees Alvin Herman, Norman Campbell, and Gilbert
Novotny. Similar changes were made on May 21, 1970, for
employee Wayne Rempp and George Richmond.
The 8(a)(5) issues
1. As of October 1, 1969, when Harding signed the letter
of recognition of the Union by Respondent, there were 69
employees in the unit.3 If the Unioii represented 35 of these
employees it would have a majority. Evidence was adduced
at the hearing and I find that 38 employees4 voluntarily
executed cards authorizing the union to represent them for
purposes of collective bargaining and turned them in to the
Union by that date. Accordingly, I find that on October 1,
1969 the Union represented a majority of the employees in
the appropriate unit. I also find, as admitted by the parties,
that the appropriate unit, within the meaning of Section
9(b) of the Act, is,
All machinists, including production workers, gener-
al laborers, and inspectors of The Freeman Company at
its plant in Yankton, South Dakota, excluding guards,
office clericals, and supervisors as defined by the Act.
2. As noted above, on October 1, 1969, Harding
recognized the Union for Respondent as the majority
representative of the employees in the above unit. This
created a legal and binding relationship for a reasonable
period of time to bargain and execute the contracts
resulting from such bargaining. Keller Plastics Eastern, Inc.
157 NLRB 583, 587; Ozella Harrington, d/b/a, Kimbrough
Trucking Co., 160 NLRB 954, 957, 958.
The General Counsel contends that the Respondent did
not bargain in good faith with the Union within the
3 This excludes Linda Leise by Respondent 's admission that she had
been inadvertently added to the list introduced in evidence as G C Exh. 2.
4 Elmer Anderson, Mary Bicknell, Beverly Brunke, Norman Campbell,
Ray Doering, Alex Drappeau, Dan Ehnsman, Patricia Ehrisman, Karen
Eilmes, Charlotte Hohn Eli, James Eh, Gary Fender, Joanne Graves, Ruth
Hansen, Sharon Hauseman, Alvin Hermann, Rita Hille, Evelyn Jensen,
meaning of the Act in that a) during the period between
October 1969 and April 10, 1970, it negotiated with the
Union with no intention of entering into any final or
binding collective-bargaining agreement; and b) commenc-
ing on or about March 9, 1970, and thereafter it refused to
bargain collectively with the Union as the exclusive
bargaining representative in the above unit by 1) unilateral-
ly, in March, April, and May 1970 changing, reducing and
rearranging the hours of employment of employees James
Eli, Gary Fender, Alvin Hermann, and Robert Wittmeier;
2) On or about March 12, 1970, unilaterally putting into
effect a general wage raise for its employees in the unit; and
3) on or about April 10, 1970 refusing to meet and confer
with the Union for the purposes of collective bargaining.
As to a), I find the General Counsel has sustained his
burden of proof that Respondent did not bargain in good
faith in the period between October 1969 and April 10,
1970, in that its negotiations with the Union were carried on
with no intention of entering into any final or binding
collective-bargaining agreement. So-called "surface bar-
gaining" of Respondent began with the excessive delay of
some 6 weeks before it gave the Union the vital and easily
available information listing employees with their individu-
al classification and rate of pay. Delay of this nature was
crucial, of the essence, and in this case it was deliberate as
will now be shown. The union organization drive, which
began in August in an outdoor park, culminated in
authorization cards from more than half of the employees
by October 1, 1969. A petition for an election had been duly
filed with the Board in September 1969, at the time the
Union notified Respondent of its majority status and
demanded recognition. If this election had been held and
had the Union received a majority of votes, (a not unusual
occurrence under these circumstances), the Board in due
course would have certified the Union as the majority
representative which authority would be unchallengeable
for a 1-year period. At first the Respondent questioned the
majority claim but then agreed to recognize the Union as
the majority representative and "begin negotiations
immediately" provided the Union would not go ahead with
the election. This was agreeable with the Union, as could
reasonably be expected, as it thus would be able to
commence bargaining immediately without having to delay
until such time as the election was held and all the time-
consuming procedures had run their course before Board
certification. But the evidence reveals that Respondent had
no intention of "immediately" bargaining. The Union
Representative orally outlined the demands of the employ-
ees on noneconomic benefits at the meeting on October 1,
1969, but needed a listing of all the employees showing their
classification and rates of pay before it could fashion a
proposal on wages and economic fringe benefits. At that
meeting it asked for such information. After almost 2 weeks
had lapsed, on October 13, 1969, the one authorized to
bargain for Respondent wrote Weber of the Union that the
owner of ,Respondent was out of town and his authorization
Dennis Kleinschmit, Danny Kruse, Jim Lee , Arlene McHenry, Kathleen
Neville, Alton Nieman, Gilbert Novotny, Ed Reiser, Edmund Rempfer,
Wayne Rempp , George Richmond, Theodore Schneider, Ben Sheffield,
Harold Don Stewart, Sandra Taggart, Harry Ugofsky, Wanda Welby,
Louis Willms, Adeline Willcuts, and Robert Wittmeier.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was needed to release the needed information. This had not
been told Weber on October 1. In fact the letter of
recognition imphedly gave Harding the authority to
bargain which would include the furnishing of necessary
information. Some 10 days more elapsed and still this
information had not been furnished when the Union on
October 23, 1969, sent Harding a written proposal (less
proposals as to workweek, overtime, wages, classifications,
and job descriptions), which it had prepared since October
1, 1969, and requested a meeting on November 3, 1969. The
parties met on November 3, 1969, with the requested
information still not given the Union. Indeed, although the
Respondent had had the written proposals of the Union for
some 10 days it had no counterproposals ready but insisted
on spending the time of the negotiators by having the
Union representative read aloud all of the Union's
proposals. Now there is no denying that hard-nosed
collective bargaining may involve some gamemanship but it
is also true that collective bargaining, as envisioned by the
Congress when the Act was passed, is a two-way street with
employers being burdened to actively bargain also. It was
not a game with one player, the Union, always having to
make the first move with the other player, the employer,
only countering.
Further at this November 3, 1969, meeting, the Respon-
dent was too vague as to contract proposals to be found to
be bargaining in good faith. This fact is established by
Respondent's indicating as to some provisions that it was
not sure whether it would make counterproposals. How
much longer it would take to make up its mind is not
indicated nor was it indicated why more time was needed.
As to those provisions where Respondent said it would
make counterproposals, the written counterproposals
should have been ready then or an effort made to state
them orally. Collective bargaining should bear some
relationship to normal business practices. It is not an occult
art. Even the unpreparedness of Harding to be able to set a
time of another meeting smacks of lack of effort and an
intention not to bargain in good faith. He said he would
have to check his calendar before setting a new meeting.
There appears to have been no reason why he could not
have done this before the meeting. Accordingly it is merely
a tactic to stall negotiations.
Three days after the November 3 meeting the Union on
November 6, 1969, sent Harding what it had agreed to send
him but again Harding was not prepared to further the
bargaining. It wasn't until another 5 days elapsed before he
wrote on November 11, 1969, correcting some typographi-
cal errors in the Union's proposal and asking for a copy of a
trust agreement referred to in the Article therein on
pensions. In this letter also appears an unctuous statement
that Harding needed to talk to Weber to "be absolutely
sure" he knew how to tell Weber what the employees'
current workweek and shifts were-information requested
at the meeting 8 days earlier. This statement is sufficient to
cause a weak stomached serious negotiator to vomit, a
practice not to be encouraged in bargaining. After a phone
call from Weber, Harding wrote him on November 12 that
he was asking Respondent to compile "as soon as possible"
the information requested.
It was also on November 12, 1969, some 6 weeks after the
request of October 1, 1969, that Harding sent Weber the list
of employees, their classifications, and rates of pay. Also
included on this list was working hours, shift information,
and dates of hire.
An illustration of another tactic engaged in by Respon-
dent to draw out the negotiations and not reach agreement
had to do with the provision as to the number of stewards
the Union could have. Respondent asked several times for
the Union to tell it how many stewards it proposed, yet
Respondent would not let Weber on the premises to see the
geography of the plant in order to determine how many
stewards were needed to service the employees. And
considerable time was spent in negotiations discussing this
problem.
The above is indicative of the attitude of the Employer to
delay and frustrate bargaining efforts made by the Union
without ever making a good-faith effort on its part to
bargain. Other meetings were held until January with
nothing of substance determined. Thus three months
elapsed with the Respondent never appearing to be coming
to the table to bargain. In situations like this where the
employees have had no history of union representation and
in a state not noted for its industrial aspects, the natural
and forseeable consequences of no bargaining contract
begin to appear. The employees become restive, the first
signs of eventually wanting to revoke their authorizations.
Again, as noted earlier, had the Union been certified by the
Board after an election, this phenomenon would be of no
consequence as the Respondent would be required to
bargain in good faith for 1 year. But in this case the
Respondent stands to gain by stalling because it only has to
bargain for a "reasonable length of time" 5 and is under no
duty to bargain if there is no majority representative. There,
is no evidence that Respondent instigated the antiunion
petition in early March 1970 but there is ample evidence
developed under section B hereafter that it assisted and
supported it, and I so find, by favoring employees who
signed it, and the above is evidence that the stage had been
set deliberately by Respondent for the petition and for
revocation of authority to bargain. Accordingly, I find that
Respondent has violated Section 8(a)(5) of the Act by not
bargaining in good faith for a reasonable length of time
after its voluntary recognition of the Union on October 1,
1969, and I will order it to cease and desist from its refusal
so to bargain and to bargain in good faith with the Union
for at least a year from this decision putting in writing any
agreements reached.
As for b) of the contentions of the General Counsel, that
Respondent refused to bargain collectively with the Union
from March 9, 1970, and thereafter, I find that Respondent
violated Section 8(a)(5) of the Act; 1) by unilaterally
changing, reducing, and rearranging the hours of employ-
ment of employees James Eli, Gary Fender, Alvin
Hermann, and Robert Wittmeier; 2) by unilaterally putting
into effect a general wage raise for its employees in the unit
on March 12, 1970; and 3) in refusing to meet and bargain
collectively with the Union on and after April 10, 1970.
Respondent has never met its obligation to bargain in good
faith with the Union.
5 Frank Bros Company, 321 U.S. 702, 64 Sup. Ct. Rep. 817.
THE FREEMAN CO. 607
B. The 8(a)(1) Violations
1. Employee Robert Wittmeier credibly testified, with-
out contradiction, that his Supervisor, Schneider, (who also
was a friend and relative) came to his work station at a
point in time after he had had his hours cut and told him (in
the words of Wittmeier), ". . . he thought if I would have
signed the [antiunion] petition I wouldn't have lost any
more hours."6 This interferes with, restrains, and coerces
an employee in his right to freely engage in union or
concerted activities guaranteed by Section 7 of the Act and
by so doing it violates Section 8(a)(1) of the Act. This point
need not be labored. The cases are legion supporting the
proposition that an economic benefit [more overtime work]
withheld because of union loyalty [failure to sign an
antiunion petition] and support interferes with, restrains,
and coerces an employee in his Section 7 rights. That
Schneider was a friend and relative only gives more force to
the statement.
2. Employee Gary Fender credibly testified that
Schneider stated to him at a coffee'break in early March
1970, at a time when the antiunion petition above was being
circulated, that if he would sign the petition Schneider
"practically could guarantee me a raise by signing it."
Fender also credibly testified that Schneider told him
Production Superintendent Saugstad ". . . and the compa-
ny would be overwhelmed or happy if we [employees
Wittmeier and Ehrismann] signed this petition." Schneider
admitted having conversations with Fender about the
Union while on coffee breaks but could not recall exactly
what they talked about. I find this conversation with
Fender, as testified to by Fender, violates Section 8(a)(1) of
the Act in that 'a promise of benefit [a raise] made to
influence an employee to cease his union activities coerces
and restrains an employee in exercising his Section 7 rights.
Likewise telling Fender that the production superintendent
would be happy if Fender signed the antiunion petition
violated Section 8(a)(1) of the Act as it implies that the
employer-employee relationship between the Company and
Fender would be strained if he didn't sign and this
obviously interferes with the free exercise of his rights to
participate or not participate in union activities-rights
guaranteed him by Section 7 of the Act.
3. Fender also credibly testified that Schneider, in
March 1970, told him "things were going to get rough" if he
did not stop talking about the Union. This is an obvious
threat of reprisal and it likewise violates Section 8(a)(1) of
the Act for the same reasons as given above.
4. Fender also credibly testified that after he had had
his hours changed in March 1970 Schneider came to him at
his machine and said, "If you boys are good boys for the
next couple of weeks, you'll probably get your hours back."
As Schneider was supervising employees who, like Fender,
were active in the initial union organization work and who
were trying to maintain Union solidarity during the course
of the negotiations for a collective-bargaining agreement, I
find this remark to Fender referring to "you boys" is
directed to the union leadership in his department and it
6 Wittmeier reaffirmed this testimony after being shown his previous
affidavit which differed in that in it he said that Schneider told him "if you
would have signed the [antiumon] petition you would have been getting
more hours." I find this difference in testimony to be trivial Obviously if a
implies that the benefit of more work (and overtime money)
will come to them if they curtail their union activity. This
likewise is an independent violation of Section 8(a)(1) of the
Act for the reasons stated above.
C. Additional Alleged 8(a)(1) Violations
The complaint alleged additional violations of Section
8(a)(1) of the Act by a reduction in hours and shift changes
in the employment of employees Eli, Fender, Hermann,
and Wittmeier. These changes and reductions took place on
March 9, 1970, for Eli, Fender, and Wittmeier and on
March 20, '1970, for Hermann. Each was given a slip
reading "We regret that the amount of new orders coming
in here made necessary a reexamination of overtime hours
in certain categories. We hope that this will not continue for
very long."
A suspicion that union activists were discriminated
against because of their union activities is nurtured by the
fact that on March 9, 1970, the date of the changes and
reductions for three of the four employees named, the
Company, by Harding, wrote Weber that it had just
received a telegram wherein 32 employees in the bargaining
unit (not including these four employees) had indicated
they had resigned from the Union. Respondent had
knowledge of the Union activity of these four employees, it
had attempted, unsuccessfully, to ' get them to join the
antiunion effort, it was knowingly hostile to the Union, and
it had been violating the Section 7 rights of the employees,
as noted above, in which the reduction in hours was
involved. These factors establish a prima facie case for the
General Counsel which must be countered by evidence
from Respondent or a violation of Section 8(a)(1) of the Act
is made out by a preponderance of the evidence.
Respondent Company has not overcome this prima facie'
case . The evidence is that Eli and Fender were so active in
leadership for the Union that they were never asked to sign
the petition and Hermann and Wittmeier both flatly
refused to sign it . The petition had been circulated freely in
the plant and, from the evidence referred to above and from
their testimony of vague recollections of hearing about it
contrary to their denials, I find that Schneider and
Saugstad 7 knew of its circulation. The Company was
favoring the antiunion petition by encouraging an employ-
ee to sign it, as found above.
Other employees also had their hours reduced, and this
tends to support the Company's position that hourly
changes were made because of economic circumstances
and not antiumon considerations. But the hourly changes
were plantwide with no direct evidence that the automatic
screw department, a small unit of four doing all of this type
of work, would be effected at all or to any extent. Indeed,
Schneider told Fender, noted above, "If you boys are good
boys for the next couple of weeks, you'll probably get your
hours back." This statement related to union activities and
not more future business orders. Fender's changes were not
explained by Respondent. I find the General Counsel has
sustained his burden of proof and that the changes in hours
person doesn't lose hours he would be getting more hours than he was
working after losing the hours.
T James Eli credibly testified he asked Saugstad to have the circulation
of the petition stopped.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and work were violations of Section 8(a)(1) of the Act as
they interfered with, coerced, and restrained the employees
in their Section 7 rights.
D. The Intervenors
The 33 named intervenors in the caption of this case
argue that they revoked their authorization to the Union to
represent them and bargain for them by their signing the
antiunion petition, above, on March 6, 1970. However,
under the circumstances of this case, these revocations
cannot be honored because they result from the above
unfair labor practices of the Respondent. Once the
bargaining relationship has been established by a majority
of employees in an appropriate unit, by means other than
certification, the Union must have a reasonable time free
from defection in which to bargain with the employer. The
Union had no reasonable time in this case and hence any
revocations are untimely and of no effect. See Brooks v.
N.L.R.B., 348 U.S. 96,75 Sup. Ct. Rep. 176, (1954) for a full
discussion, although in that case the Union had been
certified by the Board and the certification was held to be
good for a reasonable period, ordinarily 1 year. A
recognition agreement should, be entitled to the same term
as a certification yet this point need not be decided in this
case because only 5 months are involved and the
"reasonable period of time" the Union had had not yet
elapsed.
THE REMEDY
Having found that Respondent engaged in unlawful
refusal to bargain with the Union in good faith in violation
of Section 8(a)(5) of the Act, and in independent violations
of Section 8(a)(1) of the Act, I shall recommend that it be
ordered to bargain in good faith upon request and to cease
and desist from such Section 8(a)(5) and (1) unfair labor
practices in the future. I shall order Respondent to bargain
in good faith with the Union, as the recognized bargaining
representative in the appropriate unit, for a reasonable
length of time, at least a year, from the time when it
commences to bargain. See: Mar-Jac Poultry Company, Inc.
136 NLRB 785; Commerce Company, d/b/a Lamar Hotel,
140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert.
denied, 379 U.S. 815; Burnett Construction Company, 149
NLRB 1419,142 1, enfd. 350 F.2d 57 (C.A. 10).
IV. THE EFFECT OF THE UNFAIR LABOR, PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2) of the Act, and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All machinists, including production workers, gener-
al laborers, and inspectors of The Freeman Company at its
plant in Yankton, South Dakota, excluding guards, office
clericals, and supervisors as defined by the Act, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. General Drivers and Helpers Union, Local No. 749,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, was on October 1,
1969, and at all times thereafter has been the exclusive
collective-bargaining representative of Respondents' em-
ployees in the appropriate unit within the meaning of
Section 9(a) of the Act.
5. By refusing to bargain with the above-named labor
organization in good faith, 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.
6. By making unilateral changes in wages of all
employees on March 12, 1970, in hours of employment of
James Eli, Gary Fender, Alvin Hermann, and Robert
Wittmeier, and in refusing to bargain collectively with the
Union on and after April 10, 1970, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) and'(5) of the Act.
7. By making observations that a loss in overtime hours
was due to a failure to sign an antiunion petition, that a
raise in pay could be guaranteed an employee if he signed
the antiunion petition, that a supervisor and an official of
Respondent would be happy if an employee signed the
antiunion petition, that "things were going to get rough" if
an employee did not stop talking about the Union, and that
some employees would probably get back their overtime
hours lost by union activities if they were "good boys" for a
few weeks, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
8. By encouraging employees to sign an antiunion
petition and by reducing hours and making shift changes
for employees Eli, Fender, Hermann, and Wittmeir because
they did not sign the petition, the Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publication.]