The Frohman Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Feb 25, 1954

107 N.L.R.B. 1308 (N.L.R.B. 1954)

1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of the Act.
2. Respondent is engaged in commerce within the meaning of Section 2 (6) and (7) of
the Act.
3. Respondent has not engaged in unfair labor practices in violation of Section 8 (a)
(1), (3), and (5) of the Act.
[Recommendations omitted from publication.]
THE FROHMAN MANUFACTURING CO., INC. and INTERNA-
TIONAL ASSOCIATION OF MACHINISTS, LODGE NO. 613,
A.F.L. Case No. 10-CA-1476. February 25, 1954
DECISION AND ORDER
On September 2, 1953, Trial Examiner David London 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 copy of the Intermediate Report attached hereto.
The Trial Examiner further found that the Respondent had
not engaged in certain other unfair labor practices alleged
in the complaint, and recommended dismissal of those al-
legations . Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report and supporting
briefs.'
The Board has reviewed the rulings made by the Trial Ex-
aminer at the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and briefs,
and the entire record in the case, and hereby finds merit
in the Respondent ' s exceptions and adopts the findings, con-
clusions, and recommendations of the Trial Examiner only
to the limited extent that they are consistent with this Decision
and Order.
1. For the reasons fully stated in the Intermediate Report,
we find, as did the Trial Examiner, that the discharge of em-
ployee Nash on February 13, 1952, was not violative of Section
8 (a) (3) and (1) of the Act.
2. The complaint alleges, and the Trial Examiner found,
that since January 2, 1952, the Respondent refused to bargain
with the Union in violation of Section 8 (a) (5) and (1) of the Act.
We do not agree.
As described in the Intermediate Report, the Union was certi-
fied as exclusive bargaining representative of Respondent's
'The Respondent also filed a request for oral argument . The request is denied as the rec-
ord, including the exceptions and briefs , adequately presents the issues and the positions
of the parties.
107 NLRB No. 279.
THE FROHMAN MANUFACTURING CO., INC. 1309
employees on October 29, 1951, following a consent election.
The Union thereafter requested bargaining on January 2, 1952,
and the parties held five bargaining meetings between January
29 and February 20, 1952.
Although not mentioned by the Trial Examiner, it is un-
controverted that early in the negotiations, Respondent's
attorney suggested the procedure of going through the Union's
proposed contract section by section to determine what the
parties did or did not agree upon and then returning to discuss
further the matters upon which they disagreed. The Union
accepted this suggestion. In the course of bargaining the Re-
spondent agreed to a number of contract provisions, including
certain changes in existing working conditions. These changes
embraced such matters as permitting any employee called
before his regular starting time to work out his regular shift;
establishing a mihimum of 4 hours' pay when an employee
reports to work on or after his regular shift; granting 1
hour off on election day, with double time if required to work
that hour; agreeing to handle the administrative work in
connection with health insurance; and granting 3 months' leave
without pay at least for personal disability and maternity,
with seniority to accumulate during such leave. The parties
disagreed as to various other contract provisions and, after
discussion, these sections were bypassed. However, the parties
did not return fo; further discussion of the disputed items
principally because of the disagreement over Respondent's
request for a probationary period of 1 year after employment,
during which Respondent would have the complete right to
hire and discharge, and certain contract provisions such as
those relating to grievances and seniority would be inapplicable.
On March 18, 1952, the Union filed its charges in the present
case. On September 23, 1952, the Union demanded the re-
sumption of negotiations. The Respondent promptly complied
with this demand and two additional meetings were held on
October 3 and 8, 1952. The latter were concerned almost
entirely with Respondent's request for an extended probationary
period, and negotiations ended when the parties continued to be
unable to reach agreement on this issue.
The Trial Examiner recognizes that the probationary period
issue raised the most serious obstacle to successful negotia-
tion. He finds in effect that Respondent's "insistence" on
a 1-year period was so unreasonable as to demonstrate its
lack of good faith. In this connection, the Trial Examiner
relies mainly on (1) Chief Engineer Johnson's testimony
that he was able to weed out most of the deadwood within
60 days after employment and his inability to recall any
employees who appeared able to work in 60 days, but were
not able to work thereafter; (2) in August 1951, when Re-
spondent was negotiating with an inside union, Frohman said
he wanted only a 3- to 4-month probationary period; (3) Re-
spondent granted a substantial number of wage increases
337593 0 - 55 - 84
13 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within 90 days after the recipients were hired, thereby
indicating Respondent had sufficiently apprised itself of the
ability and suitability of its employees within that time;
and (4) every employer has an unfettered right at all times to
discharge employees who lack the necessary qualifications.
At the outset, we cannot agree that Respondent in fact
adamantly "insisted" on a 1-year period. As apparently
credited by the Trial Examiner, Taylor, Respondent's vice
president, originally sought an 18-month probationary period.
However, after objection by the Union and after Aronovitz,
Respondent's attorney, pointed out that the Miami Civil Service
had a 1-year period, the Respondent reduced its demand to
1 year. Later, at a meeting on February 20, 1952, Aronovitz
said he would recommend a 6-month period to Taylor.' The
Trial Examiner finds it "extremely significant" that this
recommendation was not transmitted to Taylor, inferring that
this was attributable to Respondent' s intransigent position
on a 1-year period. Yet, although not mentioned by the Trial
Examiner, it is admitted that the union representatives told
Aronovitz at this meeting that 6 months was "ridiculous"
and that they would not even go along with 3 months. Aronovitz'
failure to make his recommendation, therefore, seems to us
less likely to have been attributable to Respondent' s alleged
intransigence than to the Union's anticipatory refusal of even
a 90-day probationary period. The testimony is in conflict
as to what occurred on October 8, 1952, when the next full
discussion of the probationary period occurred. However,
even as credited by the Trial Examiner, the Respondent at
least asked the Union if it would consider a 6-month period;
the Union categorically refused and negotiations were ter-
minated.
Assuming, in any event, that the Respondent did insist on a
1-year probationary period, it is necessary to consider the
reasons advanced by the Respondent for such period in order
to determine the reasonableness of the demand. As was
frequently indicated to the Union during negotiations, the
Respondent was 1 of fewer than 10 companies in the United
States engaged exclusively in the manufacture of precision
gears. The work involved extremely close tolerances and the
Respondent was almost entirely a custom-gear producer.
Because of the nature of its work, Respondent required highly
skilled employees with the proper temperament for protracted
close-tolerance work. Such workers were difficult to find,
not only because of the lack of personnel who had been exer-
cising the necessary skills, but also because of the drifting
element of workers in the Miami area. This resulted in
a need for rather extensive training by Respondent in its
attempt to build up a capable work force. At the time negotia-
tions with the Union began, Respondent had been engaged in
'Taylor testified without contradiction that he always abided by Aronovitz' recommendations.
THE FROHMAN MANUFACTURING CO., INC. 1311
production for considerably less than 1 year and was suffering
a reject rate of 10 to 12 percent, which was over 10 times
that of the precision- gear company previously operated by
Frohman. The "external rejects" alone (i. e., the return
of gears by customers) during 1952 amounted to about
$130,000' Respondent's representatives asked the Union on
a number of occasions to accept a 1-year probationary period
in this first contract, with assurance that the period would be
reduced in later contracts, after the work force had become
more stabilized. As previously mentioned, the Union refused
to go even as high as 90 days, which it asserted was the longest
period for any other company in the area. However, none of
the manufacturing concerns in the area performed comparable
work and the Union never sought to show what probationary
periods were used in other precision-gear companies else-
where in the United States. White admitted that he said he
would bring the Respondent contracts showing such information,
but did not do so.
Turning now to the specific factors relied upon by the Trial
Examiner, Johnson did testify that most of the weeding out
could be accomplished in 60 days and that he could not recall
any instance in which an employee was first revealed to be
incapable after 60 days .4 However, both Taylor and Johnson
named employees who were fired for incompetency after
more than 3 months had elapsed; Frohman described em-
ployees who were retained only following transfers that
occurred after 6 or 8 months; and both Johnson and Frohman
emphasized the high labor turnover that would result if they
had to make their final decision on an employee's status in
less than 9 months.
As to Frohman's alleged position in August 1951 that a
3- or 4-month period would be sufficient, Nash initially
testified to this effect and the Trial Examiner states that
his finding is based on Nash's "credited, undenied testimony."
Yet Nash himself later testified, ". . . Mr. Frohman never
made a solid commitment. He merely told us thirty days
was too short a time. He didn't come out for sixty days, or
for six months . . . He didn't agree to anything on probationary
periods." Nash's testimony is thus itself contradictory.
Moreover, Nash' s original testimony is controverted by other
testimony in the record. For example, Bowers, who also at-
tended the August 1951 meeting as an employee representative,
testified Frohman said "he needed a 6-month probationary
period." Porter, another employee representative, could not
recall that Frohman suggested any particular time and Johnson
testified that no specific issues were discussed. Frohmantesti-
fied that he merely told the employees to write up what
White, the Union's principal negotiator, admitted that the loss from rejects was brought
up during negotiations, but claims it was not related to the probationary- period issue.
4Frohman testified as to one such employee.
13 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they wanted and to submit it to him when he returned from
Washington. Significantly, Frohman's alleged 3- or 4-month
position was never mentioned by the Union in the course of its
negotiations. In view of the foregoing, we find, contrary to
the Trial Examiner, that Frohman did not agree in August 1951
that a 3- or 4-month probationary period would be adequate.
With respect to the wage increases given during the first
90 days of employment, these do not show, as apparently in-
ferred by the Trial Examiner, a fixed determination by the
Respondent as to the suitability of the employees within that
period. It is true that it may have reflected that the employees'
skills had improved but not that the employees would finally
measure up to the Respondent's needs, which were for more
than machine operators. We note in this connection that at
least 7 involuntarily separated employees had received in-
creases during their first 90 days.
Finally, as to the alleged "unfettered" right of every em-
ployer at any time to discharge an employee who lacks the
necessary qualifications, such observation by the Trial Ex-
aminer disregards the fact that, under the Union's proposed
contract, discharges by the Respondent, far from being "un-
fettered," would be subject to article XVI, which includes
10 subsections and involves written charges, investigations,
hearings, w. itten determinations, et cetera. Taylor was
admittedly concerned lest such grievance activities impair
his primary function of running the Company.
Based on the foregoing and the entire record, we find that
Respondent's request for an extended probationary period was
not unreasonable under the circumstances, that it was not
raised to block negotiations and discredit the Union, and
that it was not indicative of bad faith.
The Trial Examiner also predicates his finding of bad
faith on certain other positions and statements of the Re-
spondent. For the reasons indicated below, we are persuaded
that these findings lack merit.
Grievances: The Trial Examiner finds that Respondent's
position that it would not consider grievances during an em-
ployee ' s first year of employment
in derogation of its duties under
finds, is aggravated by the facts
was for only a 1-year contract ,
insisting on a no - strike clause .
was imposing a condition
the Act. This position, he
that the Union's proposal
and that Respondent was
The requested withholding
of the grievance procedure during an employee's first year
was an integral part of the Respondent's position on the
probationary period which, as previously mentioned, was not
unreasonable .5 As to the alleged "aggravating" factors,
although the Union's proposal was for a 1-year contract,
the Respondent was seeking a contract for 2 years or 18
5 We note that, at least by October 1952, most of Respondent's employees had been em-
ployed over 1 year.
THE FROHMAN MANUFACTURING CO., INC. 1313
months. The basic no-strike clause was contained in the
Union' s own proposed contract and the Union never suggested
that this clause be deleted if a 1-year probationary period
be granted.
No-strike clause : The Trial Examiner found that the Re-
spondent insisted upon enlarging the Union ' s proposed no - strike
clause to render the Union liable for any damage or loss
sustained because of any authorized or unauthorized strike
and that this position evidenced Respondent 's bad faith. We
believe the record fails to establish such adamant insistence
by Respondent . Although Taylor may have requested a broad
provision , White, the Union ' s representative , did not deny
that Aronovitz, on behalf of Respondent , said "that the law
on the subject of liability of unions for wildcat strikes should
be studied and that a compromise section should be drawn
on what the actual legal holdings are ontuie subject." Moreover,
as already indicated , the parties had agreed to the procedure
of returning to disputed items for further discussion. As
the parties did not return to this section because of the
impasse previously described , Respondent 's ultimate position
on the no-strike clause obviously cannot be determined.
Unilateral wage increases : The Trial Examiner found that
from October 19, 1951, through February 1952, Respondent
unilaterally granted 80 wage increases ranging from 5 to 15
cents an hour , about 25 of these increases being granted on
February 4 or 11 , 1952; and that more than 100 additional
increases were granted between March 1 and July 1, 1952.
The Trial Examiner concluded that, by such unilateral action
after January 2, 1952, the earliest 8 (a) (5) date alleged in
the complaint, the Respondent violated the Act.
The Respondent contends in its brief before the Board,
as it did in its brief to the Trial Examiner, that the above
wage increases were not unlawful because the Union acquiesced
therein. The Trial Examiner made no findings whatsoever
with respect to this contention.
Merit increases were given from October 1951 to January 29,
1952, admittedly with the knowledge of, and without protest by,
the Union . White and Nash claim that the Union protested the
increases beginning at the meeting on January 29, 1952.
However , both Taylor and Aronovitz denied that any protest
was made during negotiations or at any tine before the
present hearing , even though Taylor spbcifically informed the
Union that Respondent was making such increases and two of
the union negotiators themselves received increases .6
Moreover , White conceded that no reference to unilateral wage
increases was contained in the charges filed on March 18,
1952. He also testified that he made no reference to a protest
in his statement prepared for the Board on October 30, 1952.
6 The Trial Examiner did not resolve this conflict in testimony.
1 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record, we credit the testimony of Taylor
and Aronovitz that no protest was made by the Union until
the hearing in the present case in March 1953.
The Board has previously held that if a union acquiesces
in unilateral wage action by an employer , such unilateral
conduct does not constitute a refusal to bargain .' Here, the
Union had full knowledge of the wage increases granted by the
Respondent . 8 By its failure to protest the Respondent ' s conduct
until the time of the hearing , we are of the opinion that the
Union acquiesced therein and that such conduct by Respondent
was therefore not a refusal to bargain.
Taylor ' s statements on certain employment conditions: The
Trial Examiner found indicative of bad faith Taylor ' s statements
at the January 29 and February 5 meetings that he would not
negotiate on checkoff , grievance procedure , seniority, and
wages . Even assuming these statements were made , Taylor
was not an experienced negotiator and it seems obvious from
the record that he meant that he would not agree to the Union's
proposals on those subjects. The latter is evidenced by Taylor's
admitted further statement that 80 percent of the contract
was good and by the fact that the Respondent did bargain on
those subjects, setting forth its position on each issue.
Bulletin board : The Trial Examiner relies on the Respondent's
refusal to grant the Union the right to maintain a bulletin
board at the shop. Apparently, Taylor did so refuse, but
Aronovitz testified that he (Aronovitz) then said, "Leave
that to me . . . I'll see that it's worked out," and the subject
was passed . Furthermore , as already mentioned , the parties
contemplated returning to discuss disputed items generally,
so the Respondent ' s fixed position on this matter is not shown.
Required showing of law: According to the Trial Examiner,
the Respondent ' s insistence that it be shown the law establishing
that the Company was required to accept grievance and other
provisions before it would negotiate thereon demonstrates bad
faith. The Trial Examiner misconstrued Respondent's position.
Respondent did not ask for law before it would bargain on an
issue . Rather when, after discussion, it refused to accept a
proposal, Respondent indicated that it would nevertheless
agree if the law so required . This was, therefore , in the nature
of a concession by the Respondent.
Checkoff: The final indication of bad faith specifically men-
tioned by the trial Examiner is Taylor's adamant refusal to
7See, e. g., Allis-Chalmers Manufacturing Company. 106 NLRB 939, in which the Board
found acquiescence where the union was aware of unilateral action in December 1950 and
March 1951, the union indicated no interest therein until June 1951, and the union president
testified that he did not object in December 1950 because the union had no interest in de-
priving employees of raises
8 These increases did not exceed those requested by the Union.
THE FROHMAN MANUFACTURING CO., INC. 1315
have anything to do with checkoff , despite Frohman ' s prior
agreement to such provision in negotiations with the inside union
in August 1951.
Here again the record fails to establish any adamant position
by Respondent because the parties did not return to discuss
the disputed item. Furthermore , as to Frohman ' s alleged
earlier agreement which the Trial Examiner again bases on
Nash ' s "credited , undenied testimony," this testimony was
substantially controverted by Johnson , Porter , and Frohman.
And although Nash testified that Frohman ' s prior agr`eement as
to checkoff was mentioned during the later negotiations between
the Union and the Respondent , he could not recall either the
meeting or who brought up the matter . White admitted that
he never mentioned the alleged prior agreement during
negotiations . Under these circumstances , we do not find
that Respondent ' s position as to checkoff demonstrates its
bad faith.
As the record fails to reveal any persuasive indicia of bad
faith by Respondent during the course of its negotiations with
the Union , 9 we find that it did not unlawfully refuse to bargain
with the Union and we shall dismiss this allegation of the
complaint.
3. The Trial Examiner found that the Respondent violated
Section 8 (a) (1) of the Act by Johnson' s veiled threat of
reprisal to Nash. Assuming Johnson's remarks constitute
a threat , we believe that , because of the isolated nature of
these remarks , it would not serve any useful purpose to
issue a cease - and-desist order based thereon . 10 We shall,
therefore , dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
Member Murdock, dissenting:
I would not reverse the Trial Examiner's finding that
the Respondent violated Section 8 (a) (1) and (5) of the Act.
Without necessarily endorsing all of the Trial Examiner's
subsidiary findings, I in the main agree with his approach
to the case and believe, he was justified in concluding that
the Respondent did not approach the bargaining table with the
required sincerity of desire to arrive at an agreement with
the Union.
9 The General Counsel excepts to the Trial Examiner 's failure to rely on certain other
alleged indicia of bad faith . We have carefully considered these exceptions and find them
to be without merit.
1OBraswell Motor Freight Lines, 107 NLRB 761. The General Counsel excepts to the
Trial Examiner 's failure to find that Respondent also violated Section 8 (a) (1) by denying
plant access to union adherents during their nonworking hours, while permitting such access
to antiunion personnel . The record fails to substantiate this contention . Accordingly , the ex-
ception is found to be without merit
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report
STATEMENT OF THE CASE
This proceeding, brought under Section 10 (b) of the National Labor Relations Act, as
amended (61 Stat. 136), hereinafter called the Act, was heard before the undersigned at
Miami, Florida, between March 9-24, 1953, inclusive. The parties were represented by
counsel and a representative . 1 and were afforded full opportunity to be heard , to examine
and cross -examine witnesses , to introduce relative evidence , to argue orally , and to file
briefs.
The complaint, issued on January 16, 1953, and based on a charge duly filed and served,
alleged in general terms that on and after January 2, 1953, Respondent refused to bargain
in good faith with the Union which had been certified by the Board on October 29, 1951,
as the bargaining representative of Respondent's production and maintenance employees at
its Miami plant. The complaint also alleged that on or about February 13, 1952, Respondent
discharged its employee Wilmar J. Nash because of his membership in, and activities on behalf
of, the Union, and because he engaged in concerted activities with other employees for the
purpose of collective bargaining and other mutual aid and protection. It further alleged that
Respondent, on or about February 7, 1952, threatened its employees with discharge, shutdown
of the plant, and other reprisals because of their membership in, and activities in behalf of,
the Union, and that in and about February 1952, Respondent prohibited employees who were
union adherents from entering the plant outside of their working hours, while permitting
other employees to enter the plant outside of their working hours and to engage in solicitation
against the Union.
Respondent's answer, duly filed, denied generally that it had committed any unfair labor
practice, denied that it refused to bargain as charged, and pleaded affirmatively that the
Union in March 1952 abandoned the collective-bargaining conferences and that when negotia-
tions were resumed in September and October 1952, Respondent continued the negotiations
in good faith until the parties, became deadlocked on major items of the proposed contract.
With respect to Nash, the answer admitted that it discharged himon or about February 13,1952,
and thereafter failed and refused to reinstate him, but pleaded that the discharge was made
for cause . Briefs have been received from the General Counsel and Respondent and have been
duly considered.
Upon the entire record in the case, and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Florida corporation maintaining its office and place of business at Miami,
Florida, where it is engaged in the manufacture of precision gears and related products
for use in the assembly of electronic and other devices for the United States Armed Forces.
In the year prior to the issuance of the complaint, Respondent performed services valued
in excess of $ 50 ,000 in the manufacture of precision gears and related products which were
shipped in interstate commerce to customers outside the State of Florida. I find that Re-
spondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists , Lodge No. 613, A.F.L., hereinafter called the
Union, is a labor organization within the meaning of Section 2 (5) of the Act.
i The General Counsel of the Board and his representative at the hearing are referred
to herein as the General Counsel, The Frohman Manufacturing Co., Inc., as Respondent
or the Company, and the charging union as the Union.
THE FROHMAN MANUFACTURING CO., INC. 1317
Ill. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. Background and sequence of events
Prior to 1949, Harry Frohman had been engaged for about 20 years in the manufacture
of gears at Charlotte, North Carolina. In January 1949, he sold his interests in that business
and moved to Miami with the intention of retiring. In the summer of 1950, however, he ac-
quired a small building for the purpose of "research in textile machinery" and to market
several inventions in which he was interested. He was subsequently contacted by a former
customer of the Charlotte plant and obtained an order for the manufacture and delivery of
gears. He enlarged his quarters and by the end of 1950 employed approximately 12 to 15
employees. In 1951, Respondent was incorporated and Frohman became, and has at all times
since been, its president and, together with his wife, the principal stockholder therein.
In October 1951, Samuel T. Taylor joined Respondent as vice president and substantial
shareholder, and was placed in charge of "all administrative functions."
Organizational work among the employees at the plant was commenced in July 1951
at which time 42-43 employees signed cards authorizing the Union to represent them. Of
this number, approximately three-fourths were obtained by Nash. A petition (10-RC-1519),
seeking the Union's certification as bargaining representative of Respondent's production
and maintenance employees was filed with the Board on July 23, 1951. Several days later
Orvid Johnson, Respondent's superintendent, called a meeting of the employees in the
plant at which the pros and cons of union organization were discussed and during the course
of which Johnson recommended the formation of an independent company union. Later that
day, the employees voted to establish that type of union.
A committee was appointed to draft a proposal which was submitted to Frohman. Several
days thereafter, early in August, Frohman called the committee to his office and discussed
the proposal with them. No agreement was reached on wages, though the committee's sug-
gested scales were based on the "Wage Stabilization paper ... the Company had given" the
committee. The committee's proposal for a 30-day probationary period was deemed insufficient
by Frohman who stated that he would "require between 3-4 months for [suchla period "
Frohman agreed to give 1 week's vacation after 6 months of employment and 2 w eks after
1 year. He also agreed to a 10-minute washup period and to deduct union dues of 25 cents
a month.2
The committee redrafted its proposal in longhand and received permission from Johnson
to have six copies made by one of the Respondent's stenographers. The amended proposal
which was submitted to the Company expressly incorporated Frohman's concessions last
aforementioned and gave effect to Frohman's demand for a 4-month probationary period.3 The
committee waited several weeks but heard nothing from management. Nash, late in August
or early in September, asked Johnson whether another meeting with Respondent's officials
could be arranged and Johnson agreed to see Frohman about the matter. Later that day,
Johnson informed Nash that Frohman "didn't want anything to do with this contract; he
didn't want anything to do with the union at all." Nash then informed Johnson that under
the circumstances the men would have to "get the outside union to come in and do the bar-
gaining for ,[them]' to which Johnson replied: "Well, if that's what you fellows think you
can do, go ahead." Nash thereupon resumed his activities in behalf of the Union. Thereafter,
a meeting was held in the Board's office in Miami in connection with the Union's petition for
certification following which a hearing on that petition was ordered.
On October 5, 1951, Respondent and the Union entered into an "Agreement for Consent
Election." The Union won that election on October 19, and on October 29, 1951, was legally
certified as the exclusive representative for the purposes of collective bargaining in respect
to rates of pay, wages, hours of employment, and other conditions of employment, of all of
Respondent's employees in the following appropriate unit: All production and maintenance
2 The findings in this paragraph are based on the credited, undenied testimony of Nash.
3Paragraph 12 of the proposal, in pertinent part, provided that "during the [first 120 days
of employmenil, the Company shall be at liberty to discharge any employee who is not
satisfactory in his classification." Paragraph 14 provided that "the employees' seniority
rights shall start when a man has passed [his first 120 days' period of employment]."
13 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees including shipping and receiving clerks and their helpers , material handlers,
truckdrivers , porters, janitors , and laborers , but excluding officeclerical employees , drafts-
men, guards, watchmen, and supervisors as defined in the Act.
No demand to bargain, or effort to meet with Respondent was made until January 2, 1952,
at which'time William H. White, then a union organizer and since February 1952 a district
representative , presented Frohman with a copy of a proposed contract . The latter informed
White that he would examine the contract and get in touch with him. Not receiving any word
from Frohman, White called Respondent's office on January 16 and was referred to Taylor
who informed him that he, Taylor, was the man to talk to in regard to the proposed contract.
Taylor then told him that he had not had time to go over the contract 11d that it might
"take 30, 60 or 90 more days to go over the proposals," and that he could not fix a defi-
nite date for a meeting . When White remonstrated that under the circumstances he was
forced to bring charges for failing to bargain, Taylor "told him to go ahead and do what[he]
felt like doing." On January 22, White, by letter, requested a definite date for a meeting.
On the following day, he received a telephone call from Abe Aronovitz, a member of the
law firm of Aronovitz & Aronovitz,4 who advised him that he had been retained to represent
Respondent. The two men arranged for a bargaining meeting to be held in Aronovitz' office
on January 29 at 7:30 p. m.
Aronovitz and Taylor appeared for Respondent at that conference and White for the Union.
Aronovitz informed White that he was acting as a "mediator" and that if an impasse were
reached in the negotiations he would attempt to reconcile the differences and recommend a
solution to Respondent . He cautioned , however , that he could not guarantee the acceptance
of his recommendation as the Company "had the final say in all matters." No specific
issues were discussed. Though Taylor commented "that 80 percent of the contract was
pretty good," he stated there were 4 items on which the Company would not negotiate--the
checkoff, grievance procedure , seniority , and wages . When Taylor and White " got into an
argument," Aronovitz interceded and "tried to smooth things over," following which the
parties agreed to meet again on February 5
That meeting was attended in behalf of management by Taylor and Aronovitz, and in
behalf of the Union by White and employees Nash and Marcoux. Taylor objected to Nash
as a member of the Union's committee because he was "anti-capitalist," that he would not
negotiate on the four items above mentioned , insisted upon a probationary period of 1 years
with the unfettered right to hire and fire at will, and informed the union representatives
that "both he and Mr Frohman didn ' t have to keep the plant open , but were so financially
fixed that they could close the plant and do nothing else." He also stated on this, and several
other occasions, including the October meeting hereafter described, "that all the Company
was required to do by law was to sit there and talk to [the Union], that he did not have to
agree to anything as long as he talked to (thern] And, as long as he did talk to them, he
was negotiating as required by law." Apparently Aronovitz was disturbed by Taylor's
attitude and approach to the problem at hand and suggested that "meetings in the futureD)e held]
without Mr. Taylor being present" and that the negotiators "might be able to make some
progress if [they]met without Mr. Taylor." Another meeting was scheduled for February 7,
1952.6
That meeting was held and attended only by Aronovitz, Nash, and White. The Union's
representatives expressed a failure to understand why Respondent wanted such a long
probationary period. Aronovitz told them at this meeting, and at several others, that "the
Company was definitely afraid of labor unions and that he would have to sell them any-
thing that they would agree to", that if the Union could show him any "legal decision or
any law regarding any clauses that the Union had proposed," they would be included in
his recommendation. Aronovitz, who had served as counsel for the Miami Civil Service
Commission, explained that body's 1-year probationary system, urged the Union to accept
such a period , and suggested that at a later date the Company would recede from its demand
for a 1-year probationary period. A 6-month period was discussed, without being offered,
4Unless otherwise noted, all references herein to Aronovitz are to Abe Aronovitz.
5 Taylor testified that at either the first or second meeting "the original position that
[he] took with regard to the probationary period was that[ Respondent] would require an
18-month probationary period with the right to hire and fire employees. The position was
then changed to a 12-month request, after some discussion."
6Unless otherwise indicated, all references to dates are to the year 1952.
THE FROHMAN MANUFACTURING CO., INC. 13 19
but Aronovitz said he could give no assurance that Respondent would accept it, even if the
Union did. White emphasized the fact "they had to have a contract that was no worse than
the contracts other people had in the area and that the Company's proposal would leave the
men without any job security whatsoever." The conference adjourned to meet again on
February 11.
The meeting of February 11, attended by Aronovitz, Taylor, Nash, and White, was devoted
to a paragraph-by-paragraph discussion of practically the entire contract submitted by the
Union. When the section pertaining to wages was reached, an acrimonious discussion between
Taylor and White ensued. Aronovitz interceded by suggesting that the subject of wages be
laid aside and promised to talk to White "about that later on and see if [they couldn't] work
that out " The actual negotiation of wage scales was never resumed.
The checkoff requested by the Union in article V of its proposal was in the form usually
found in labor bargaining contracts and no objections to its form was made by Respondent.
However, Taylor informed the negotiators that the Company "would have nothing to do with
a checkoff." that the Union "had stewards or officers that took care of those duties and the
Company wouldn't be burdened with [the expense of] doing that type of work." Respondent
never receded from that position.
The Company agreed to the Union 's proposal of 1 week's vacation to employees employed
from 6 months to a year, and 2 weeks to those engaged longer. There was disagreement,
however, on other minor phases of the vacation proposals and paid holidays. With respect
to the grant of leaves of absence. Taylor stated that Respondent "would give no leave what-
soever for . . . official union business," or illness of the employee. On other demands, "the
Company would grant leaves when it saw fit, or when it saw there was a case that required
granting of leave."
The Union's proposal on seniority rights to govern "promotion within the bargaining
unit, transfer, decrease or increase of the working force" was that "length of service ... in
the plant" should be determinative of such seniority status. Taylor, on the other hand, "wanted
a division set up for multiple machine men[capable of running all the machines in the various
departments]which would have a higher priority or seniority," so that Respondent, in case
of a layoff, could keep the "multiple machine men," regardless of plantwide seniority.
No agreement was reached.
With respect to article XVIII of the proposal which provides that the "Company shall place
bulletin boards at appropriate locations m the plant for use of the Union," Taylor said,
"Nothing doing.... [ He said] in no uncertain terms that[the Union]could put up notices and
bulletins that they wanted to in the union hall, that[they] had the union hall for that."
Article XXIII of the Union's proposal dealing with grievances provided that the procedure
established in the article was to be utilized to resolve "any dispute between the Company
and the Union, or between the Company and any employee concerning the effect, interpretation,
application, claim or breach or violation of this agreement, or any other dispute which
may arise between the parties." The procedure proposed by the Union for resolving differences
arising from such grievances was one commonly found in contracts of this nature, with
arbitration as the final step. Taylor insisted that the Union "show them the law that required
a grievance procedure before he would accept it,,, a demand he made in discussing other
articles of the proposal. At the hearing, Taylor testified that his objection to the article
was based on the fact that he "could not afford to be tied up in ... vindictive . . . nuisance
grievance procedures " When asked by the Trial Examiner to describe the type of grievance
he felt "ought not to be committed to a grievance procedure," Taylor gave two illustrations.
The first would be a situation where employee A's classification was raised and employee
B files a grievance on the ground that he is the one who is entitled to the "raise." The
second example cited would be the grant of overtime work and pay to employees in one de-
partment followed by complaints from an employee in another department that he was not
afforded a similar opportunity. No agreement on grievance scope or procedure was reached.
By article XXVII of its proposal, the Union agreed not to "call or sanction any strike
or concerted stoppage during the term of [the] agreement except for (1) the Company's failure
to abide by the Arbitration Clause- -or (2) the Company's failure to comply with any decision
of any Board of Arbitration established--within five(5) working days after such decision of a
Board of Arbitration or (3) failure of the parties to reach agreement on wage reopening
which has taken place pursuant to the Wage re-opening clause" of the agreement. Taylor
objected to the exceptions noted in the article, and insisted upon enlarging its coverage so as
to make the Union "financially responsible, and ... [agree] to reimburse the Company for
i
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any damages or loss that was sustained" by it by reason of any strike, whether authorized
or wildcat.
During the meeting of February 11, the length and effect of the probationary period demanded
by Respondent dominated the discussions and presented the greatest obstacle to progress.
This was due to the fact that during such probationary period Respondent insisted upon having
not only the unequivocal right to hire and fire at will but its establishment would also have
the effect of nullifying other provisions of the contract during the same period, e. g., seniority,
grievance, etc. During this and all the other meetings the shortest probationary period which
any representative of Respondent would agree to was 1 year, it being the Company's contention
that it would take at least that long for Respondent to train its employees, determine whether
they were capable of performing their work properly, and were otherwise acceptable as
employees. Taylor testified that in 1951, Respondent suffered a substantial loss due in large
part to rejects which in turn were caused by "lack of care, lack of interest, in many respects
carelessness- -that is what you have to school into them--that's why we need the probationary
period." The Union, on the other hand, insisted that the longest probationary period in the
industry was 90 days, with most of such periods being only 30 or 60 days, and that the shorter
periods were sufficient to give Respondent the opportunity to determine the suitability of its
employees. At the close of the February 11 meeting, unlike the previous sessions, no date
was fixed for a future conference.
On February 20, Nash and W. W. Fitzgerald went to Aronovitz' office "to discuss the Nash
situation," the latter having been discharged under circumstances detailed hereafter During
the conference, the probationary period was discussed and Fitzgerald, who had been Grand
Lodge district representative of the Machinists since 1941, tried to convince Aronovitz
of the unreasonableness of a 1-year probationary period, and that a 30- or 60-day period
was sufficient for the Company to determine the competency and capacity of newly hired
employees. Aronovitz repeated that the Company "was afraid of unions, and they needed time
to get acquainted with unions." After some discussion, Aronovitz stated he would recommend
a 6-month probationary period but added: "I want it understood it will be just a recom-
mendation. I don't have the authority to say it will be final and binding or not. As far as I
am concerned, I don't have that authority.",?
On March 6, Aronovitz wrote White asking for "a schedule of salaries ... earned by mem-
bers of the Union in manufacturing plants similar in size and located in [the Miami] area."
White replied on March 17 giving him the rates for machinists, specialisth, and tool and die
makers, and made a counterdemand "for a listing of all employees in the unit, with their
rates of pay." He also advised Aronovitz that he would contact him "for a meeting, preferably
early [the following] week," but that if Aronovitz had some other date which he preferred,
White would be pleased to hear from him at either his office or home.
On March 18, the Union's Grand Lodge representative at Atlanta, Georgia .8 filed a charge
with the Board's Regional Director at Atlanta alleging, inter alia, that Nash had been dis-
criminatorily discharged on February 13, 1952, and that Respondent, since October 29, 1951,
had refused to bargain collectively with the Union.
Neither the Union nor Respondent made any further attempt to contact the other until Sep-
tember 23, when Fitzgerald sent a letter to Frohman demanding a resumption of negotiations
and suggesting that the meetings commence on September 29. Taylor acknowledged the letter
on September 26 and advised Fitzgerald that he was leaving Miami that evening to be gone
about 10 days. Taylor's letter continued as follows:
In view of my absence, I have sent a copy of your letter to our attorneys Aronovitz and
Aronovitz, and instructed them to get in touch with you, and to go into discussion where
we left off some months ago. As I recall the situation, Mr. White and our attorneys were
to discuss in detail the tenets of the contract and then, I, the union representative, and
representative men from the job were to meet and iron out disputed items. After the
above was completed, it was also understood that I would bring a rewritten contract to
my board of directors for discussion and approval, and that your representatives were
to present to all the men of the job the revised contract for discussion. In this we even-
tually arrive at a meeting of the minds.
7 Taylor testified that Aronovitz never "recommended .. , or mentioned a 6-month pro-
bationary period to him."
a White's residence and office were in Miami.
THE FROHMAN MANUFACTURING CO., INC. 1321
Pursuant to telephone arrangements made by Aronovitz, the parties met on October 3
in the latter's office. Present were Sidney Aronovitz, Grand Lodge Representative Estey,
and White. Without effect on the negotiations, there was a discussion pertaining to the
situation . . . created by a petition filed by a CIO union for representation of [Respondent's]
employees." White again asked for the wage information requested in his letter of March
17, and Sidney Aronovitz told him that while he believed the requested information had been
prepared, it was not available at that time. After agreeing to meet again on October 8, the
conference was adjourned.
The October 8 meeting, the last held between the parties, was attended by Sidney Aronovitz,
Taylor, White, and Estey. At that meeting Sidney Aronovitz delivered to White the wage infor-
mation requested on March 17. A compositeviewof all who were in attendance at that meeting
compels the finding that the only contract provision discussed that day was the length of the
probationary period Taylor testified that, concerning the probationary period, he made the
following statements to the union representative at the October 8 meeting: "We offered you a
year. Will you take 9 months--? They said they would not I asked if they would take 6 months
as a probationary period, and they said no " Concerning that subject, Sidney Aronovitz
testified as follows.
I mentioned twelve months, . . . and then I, [asked] him, "Would you consider going ahead
with a 6-month period? " He did not answer it. I do not recall Mr. Taylor stating at that
time [anything about a 6-month period] but I do recollect that I did.... At that meeting
(White did not offer any probationary period. All he did in this brief meeting was discuss
30, 60 and 90 days, but never agreed to 30, 60 or 90 days.
On the entire record, and my observation of the witnesses. I am convinced, and find, that
at no time during the entire negotiations, and especially during the meeting of October 8,
did Respondent indicate that it would accept a probationary period of less than 1 year. While
I have found that during the meeting of February 7 there was "discussion" of a 6-month
period, Respondent, in its brief, admits "there is no doubt but that the Company did not
offer as such a six months period." That meeting was not attended by Taylor and the possibility
of such a shorter period serving as a compromise, according to Taylor's own testimony, was
never recommended by, or even discussed with, Aronovitz. Aronovitz' failure to do so is
extremely significant because it was the Company's insistence upon the 1-year period that
was at all times the most serious obstacle to successful negotiation. Accordingly, I can
only conclude that Aronovitz' failure to ever recommend to, or even discuss with, Taylor
that the latter consider a 6-month period was because Aronovitz realized how futile such
recommendation would be, and that Taylor had definitely and finally committed Abe Aronovitz,
Sidney Aronovitz, as well as Respondent itself, to a probationary period of not less than 1
year.
Taylor's testimony that on October 8 he asked the union representatives if they would
accept a 6- or 9-month period is impeached by his own affidavit and is not credited 9 In
that affidavit of 21 pages, General Counsel's Exhibit No. 13, given to a Board representative on
October 31, 1952, 10 Taylor summarized the position Respondent took during the entire
negotiations. Nowhere in that affidavit is there any suggestion or mention of a 6-month pro-
bationary period, or any other than a period of 1 year. With reference to article XVI of
the Union's proposal, dealing with grievances, Taylor's affidavit starts: "Acceptable only
if there were to be a year probationary period for each employee during which time none
of the provisions of Article XVI would apply." Dealing particularly with the meeting of
October 8, Taylor's affidavit states that "We then discussed at great length the need for
a year probationary period for all workers, but there apparently was a stumbling block
which Mr. White and Mr. Estey could not agree to, not because it would work any undue
hardship on the men in the Union, but that it would be, in the eyes of their headquarters,
an inferior contract and, as mentioned before, they would not jeopardize their standing to sign
a contract which had that long a probationary period. Nothing else was discussed [pertaining
to any provision of the contraccJ." (Emphasis supplied.)
9Sidney Aronovitz testified that he did "not recall" Taylor saying anything about a 6-
month period at the October 8 meeting.
AD Ruling on the advisability of this exhibit was reserved at the hearing. It is hereby
admitted into evidence.
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While Sidney Aronovitz may have asked at the October 8 meeting whether the Union would
"consider going ahead with a 6-month period," I find that this inquiry was intended, at most,
to ascertain whether the Union would consider any period longer than the 90 days which it
always contended was the maximum probationary period in the industry, and not as any
indication by Sidney Aronovitz that the Company had abandoned, or would recede from, its
insistence upon a 1-year period. Several factors have brought me to this conclusion. First,
both Abe and Sidney Aronovitz lacked authority to bind the Company to any provision in
the contract, of which lack the Union had several times been advised in no uncertain terms.
Second, Taylor's adamant position throughout the entire negotiations, including the meeting
of October 8, that Respondent would not accept any period less than 1 year.
The Union's representatives being reasonably of the opinion on October 8 that Respondent
would not recede from Taylor's position with respect to the probationary period, the meeting
"broke up" and further negotiation was never resumed.
2. Concluding findings
The relevant mandate of the Act with respect to the duty to bargain is simple in language,
but broad in its import. Both sides are required to "meet at reasonable times and confer
in good faith with respect to wages, hours, and other terms and conditions of employment,
or the negotiation of an agreement, or any question arising thereunder. ..."u While the
duty to bargain "does not compel either party to agree to a proposal or require the making
of a concession,"12 it is well settled that the Act requires the employer to bargain in good
faith with respect to the subjects above mentioned and with a sincere desire to reach agree-
ment. Willingness to meet, or merely meeting with a union, does not satisfy the statutory
obligation to bargain. On the other hand, Respondent's failure to make concessions, or the
fact that an impasse was reached on matters within the scope of compulsory bargaining,
do not, standing alone , establish the bad faith which is violative of the Act. The real issue
is whether or not Respondent was dealing in good faith, or engaged in mere surface bargaining
without any intent of concluding an agreement on a give-and-take basis. N. L. P. B. v. Whit-
tier Mills Co., 111 F. 2d 474 (C. A. 5), N. L. R. B. v. Athens Manufacturing Co , 161 F. 2d 8
(C. A. 5); N. L. R. B. v. Tower Hosiery Mills, Inc, 180 F. 2d 701 (C. A. 5). Applying the
foregoing principles to the facts of this case, I have concluded, on the entire record, that
Respondent did not negotiate with the Union in good faith as required by the Act.
a. Grievances
The right to file and process grievances has long been recognized as a most stabilizing
factor in the field of labor-management relations. Grievances concern themselves with
the adjustment of wage rates; with rulings on seniority, layoffs, and rehires; with discharges
and other disciplinary measures, with merit increases, transfers, promotions, the operation
of an incentive system, and countless other measures. Whether they are cast in the form
of an interpretation of the agreement or not, any adjustments made of these questions affect
the whole plant. The rulings tend to become precedents and may eventually constitute a body
of industrial law supplementing the formal agreement. Is Accordingly, from the time of the
passage of the Act in 1935, both the Board and the courts have uniformly held that "grievances
concern conditions of work [and as such]are proper subjects for collective bargaining. "14
By refusing to consider any grievance for a period of 1 year after an employee is first
engaged, Respondent imposed a condition of employment in derogation of the duty imposed
on it by the Act. The underlying "purpose and policy of the Act ... to provide orderly and
peaceful procedures for preventing the interference by either [employer or employees) with
the legitimate rights of the other" Is would be completely frustrated if Respondent were
permitted to arrogate to itself the right to dispose unilaterally of all disputes that might
arise affecting "terms and conditions of employment."
"Section 8 (d) of the Act.
n Ibid.
13 See Cox: Some aspects of the Labor Management Relations Act, 61 Harv. L. Rev. 274, 320.
14Cities Service Oil Company, 25 NLRB 36, 44, enfd. as modified on another ground, 122
F 2d 149; Bethlehem Steel Company, 89 NLRB 341.
15 Section 1 (b) of the Act.
THE FROHMAN MANUFACTURING CO., INC. 1323
Respondent ' s denial of the right aforementioned is aggravated by 2 factors . First, the
Union's proposal was for a contract termofonly 1 year . Thus, at least for employees engaged
after the execution of the contract, neither the employees, nor the Union on their behalf,
would have any right to file or process a grievance during the entire term of the contract.
The second aggravating factor is the no-strike clause demanded by the Company. Here,
Respondent was not only insisting upon a surrender of their right to have grievances ad-
justed through an orderly and well-established procedure , but it was also demanding a re-
linquishment by the employees of their legal right to withhold their labor in connection with
any dispute or grievance which might arise . The totality of the demands mode by the Re-
spondent with respect to grievances constitutes not only a rejection of the " orderly and peaceful
procedures for preventing the interference by either [employer or employees]with the legiti-
mate rights of the other ," 16 but provides instead a road that can only lead to industrial strife.
b. The no-strike clause
As previously found, Respondent insisted upon a no-strike clause which would make the
Union financially responsible for "any damage or loss " sustained by the Company by reason
of any strike, whether authorized, or wildcat By seeking to impose liability on the Union
for a strike which the Union did not authorize, sanction, or could effectively control, Re-
spondent erected an effective obstacle to the successful negotiation of a contract and clearly
evinced the bad faith proscribed by Section 8 (a) (5) of the Act. Cf. Standard Generator
Service Co., 90 NLRB 790, enfd. 186 F. 2d 606 (C. A. 8), Brown & Root, 86 NLRB 520
c. Unilateral wage increases
The Company's own records show that from October 19, 1951. when the Union won the
election, through February 1952, during the latter portion of which period the parties were
carrying on their negotiations, Respondent unilaterally, and without even consulting the
Union , granted approximately 80 wage increases ranging from 5 to 15 cents an hour, most
of them at about 10 cents. Approximately 25 of these increases were granted either on
February 4, 1952, or on February 11, 1952. It was only a few days later, on February 13,
that a petition to "get the Union out" of the plant was circulated among the employees. From
March 1. 1952, through July 1, 1952, Respondent granted more than a hundred additional
increases.
In its brief. Respondent argues that these "wage increases" can only be deemed to be
violative of the Act if the General Counsel has established that "they were given without
rational basis or predicate, not in accordance with the needs of the Company, and that they
were given for the express purpose of embarrassing the Union with its[members], and to dis-
credit the Union thereby."
Because Respondent has misconceived the duties imposed on it by the Act, I find it un-
necessary to determine whether these increases were made for the "express purpose"
above suggested . Once a union has been designated as a statutory representative and an
employer is put on notice of the union's majority status, the Act not only imposes upon him
the affirmative duty to bargain collectively with the designated representative with respect
to wages and terms of employment , but requires him to abstain from direct dealings with
individual employees 17 Whether expressly intended or not , dealing with individual employees
with respect to wages and terms of employment can only have the effect of bringing employees
to the conclusion that they have no need for a collective-bargaining agent. By unilaterally
granting individual wage increases after January 2, 195218 Respondent breached its duty to
bargain thereon with the Union as required by the Act, and thereby violated Section 8 (a)
(5) and ( 1) thereof.
d. The 1-year probationary period
As has previously been found, Respondent insisted throughout the negotiations that it would
not accede to anything less than a 1-year probationary period, which all the parties understood
16 mid.
i7N. L. R. B. v. Crompton-Highland Mills, Inc., 337 U. S. 217; Reeder Motor Company,
96 NLRB 831.
18 The earliest violative date alleged in the complaint.
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would give Respondent the unfettered right, during that period, to hire and fire at will and
without resort to any grievance procedure. It was the Company's contention that because
of the specialized nature of its business and the scarcity of competent machinists in the
Miami area it required 1 year to train its employees and determine whether they were
qualified and suitable in every respect to continue their employment.
In arriving at my conclusion on the effect that Respondent's position on this and other
subjects had on the negotiations, I have been mindful that both parties are free to drive as
"hard" a bargain as each thinks to its own advantage, and that the Board may not "sit in
judgment upon the substantive terms of collective bargaining agreements." N. L. R. B. v.
National American Insurance Company, 343 U. S. 395. "At the same time, it seems clear
that if the Board is not to be blinded by empty talk and by the mere surface motions of col-
lective bargaining, it must take some cognizance of the reasonableness of the positions taken
by an employer in the course of the bargaining negotiations." N. L. R. B. v. Reed & Prince
Manufacturing Company, 205 F. 2d 131 (C. A. 1).
Though a great deal of conclusory testimony was offered by Respondent in its attempt to
establish that the, nature of its business required services more highly skilled than that
demanded in the manufacture of the more common type of gears, consideration of the entire
record, and an inspection trip through the plant where I observed the men and machines
at work, have left me unconvinced that Respondent's insistence upon the 1-year period was
motivated in good faith Taylor testified that Respondent's financial lbss in 1951 was due
to the employees' "lack of care, lack of interest, in many respects carelessness, ... that
is what you have to school into them ... that's why we need the probationary period."
Superintendent Johnson, however, testified that within 60 days after a man is first em-
ployed, he was "able to weed out most of the dead wood." In support of that experience and
opinion he was unable to remember a single employee "who appeared to be able to work 60
days who [wasn't] able to do it after that." Strangely enough, too, in August 1951, when Re-
spondent was negotiating for a contract with an "inside" union formed at the suggestion of
the Company, Frohman, its president, and who devoted practically all his time to production,
informed the negotiators that he "would require between 3 and 4 months for a probationary
period."
The employment record and wage experience of Respondent's employees reflected by
General Counsel's Exhibit No. 5 are also significant on this phase of the case. The first 4 pages
of that exhibit, prepared in its entirety by Respondent, reflects the "pay differential" for
the period January 1. 1951, to August 31, 1952, of all employees on its payroll on the latter
date The last 2 pages of the exhibit give the same information for the same period con-
cerning employees who were no longer working for the Company on August 31, 1952. The
exhibit establishes that with respect to the 67 employees in the unit in August 1952, of whom
approximately 90 percent were hired after June 1, 1951, 59 received a total of approximately
150 wage increases between July 1, 1951, and August 31, 1952, 55 of such increases being
granted within the first 90 days after the date of original employment. Of the 8 employees
on its payroll at the end of August 1952 and who received no increases during the period
covered by the exhibit, 1 was employed in August 1951, 2 in October 1951, and 1 each in
November and December 1951. Turning now to the 52 employees in the unit no longer working
for the Company on August 31, 1952, we find that only 16 received no increases during the
period of their employment However,, neither the exhibit nor 'the remainder of the record
establish how many of these were voluntary separations, or the length of their service. Of
the remaining 36 no longer employed by the Company, the exhibit establishes that they
received approximately 90 increases during the period of their employment, about half of
which were granted within 90 days after the date of first employment.
With references to these increases, Respondent, in its brief, asserts that the Company
"did not grant a general wage increase of x number of cents per hour to every employee in
the plan. . [Instead, these increases were]in line with what the Company has continually
stated as being increases necessary to recognize the higher skills and classification of the
workers." (Emphasis supplied.) Accordingly, I can only conclude that by the time Respondent
granted such increases, approximately half of which were granted within 90 days after the
recipients thereof were first hired, Respondent had sufficiently apprised itself of the ability
and suitability of its employees to warrant such increases That wage increase experience,
when coupled with awareness that every employer has the unfettered right, at all times,
to discharge employees who do not possess the demanded skill or competence, confirms
my conclusion that Respondent's insistence upon a 1-year probationary period was not for the
THE FROHMAN MANUFACTURING CO., INC 1325
reasons ascribed by it, or made in the good faith demanded by the Act Rather, it is my
conclusion that it was imposed as an effective block to avoid successful negotiation and as
a means of discrediting the Union with its membership.
Other Indicia of Bad Faith
Other positions taken by Respondent during the negotiations add weight to the ultimate
conclusion that the Company did not bargain in good faith as required by the Act. Thus, Taylor's
statements made at the January 29 and February 5 meeting that he would not negotiate on the
checkoff, grievance procedure, seniority, and wages were, as has previously been pointed
out, in derogation of a duty imposed by the Act. Indicative of a lack of good faith to establish
the harmonious relationship necessary to collective bargaining was Respondent's refusal
to grant the Union the right to maintain a bulletin board at the shop, a common industrial
practice Such a position, "in the context of this case, indicates Respondent's basic un-
willingness to accept the principle of collective bargaining and further strengthens [my]
conclusion that Respondent has not bargained in good faith." N. L. R. B, v Reed & Prince
Manufacturing Co , supra. Also indicative of bad faith was Respondent's insistence that it be
shown the law establishing that the Company was required to accept a grievance procedure
and other provisions of the contract before it would negotiate thereon The requisites for
good-faith bargaining cannot be found when the lack of legal requirement to bargain is upper-
most in Respondent's mind. An employer who takes such a position on a bargainable issue
can hardly approach the discussion of this subject with an open mind and a willingness to
reach an agreement. Nor can I be unmindful of Taylor's adamant position that he "would
have nothing to do with a check-off," whereas in the prior negotiations with the "inside"
union, Frohman had readily agreed to such a checkoff
On the entire record and my observation of the demeanor of the witnesses. I find that since
January 2, 1952, Respondent has failed and refused to bargain with the Union in good faith
with respect to wages, hours, and other terms and conditions of employment and thereby vio-
lated Section 8 (a) (5) and 8 (a) (1) of the Act. See Majure Transport Co v. N. L. R. B., 198
F. 2d 735 (C. A.5)
B. The discharge of Nash
During the afternoon of a day early in February 1952, following a bargaining meeting that
Nash attended at Aronovitz' office, Ovid Johnson, the plant superintendent, accused Nash of
having brought Union Representative White into the plant at night in violation of company rules.
Nash denied the incident. The 2 men engaged in a heated argument during the course of
which Johnson called Nash a cheat, a liar , 2 vile and indecent names, and told him that he
-(Nash) "was working to break the Company, that [he] was trying to gain[his] own ends in[his]
dealings, that the only thing that the Union was going to accomplish with the Company was
to disrupt the entire proceedings , and if the Union made the going too rough for them, they
would lock up the doors, sell the machinery and go play golf, that all fohnson] wanted Iiim]
to do was make one false move and he would fire[him], that' s all he would wait for[him]to do." 9
On February 13, Nash left his machine to get a piece of stock in another building. Not
finding the employee who could secure the material that he needed, he turned to leave the
building and observed employees Lyons and Curry engaged in conversation Lyons called to
him and asked what Nash knew about "this petition" which Curry had asked Lyons to sign.
Nash was then aware that a petition was being circulated in the plant "to get the [Union]
out" and told Lyons that he would be acting against his own cause if he signed the petition,
and said to Curry: "If I were you I wouldn't go through with this " Curry stated that he was
about to ask Nash to sign the petition to which the latter replied that if he did, he (Nash)
would "probably knock [him] over the head with a hammer " Curry rejoined that, in that
event, he had "the difference in the car." Nash called him several vile and indecent names
and told him that if he "went through with [the petition, Nash]would see that[his]life wouldn't
be worth two cents." Nash thereupon turned and left the building
Curry informed Johnson of the incident who sent him to Taylor where Curry reported
that "he had been threatened bodily harm." Taylor "discussed the seriousness of the
19 Johnson did not deny this testimony. He admitted that he "may have been wrong" in
his accusation that Nash had brought White into the plant and also admitted that there had
been an exchange of "various hot words."
337593 0 - 55 - 85
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
situation" with Frohman. Later that day Nash was called to Taylor's office and found Taylor,
Frohman, and Johnson in attendance Taylor accused Nash of having threatened to kill
Curry. Curry was called in to confront Nash and accused the latter of having "threatened
to beat his head in with a hammer." Nash admitted that he used the words last quoted,
but claimed they were used "jokingly." Thomas Winn, who was working at a lathe about
12 feet from where the incident took place, was called to the office and reported that all
he had heard of the conversation was Nash's threat that he would hit Curry in the head
with a hammer 20 Taylor informed Nash that because of the disturbance and the effect it
would have on the men in the plant, he was compelled to ask for his resignation. When Nash
declined to resign , he was discharged
On the entire record I am convinced and find that Nash was discharged for the reasons
assigned by Taylor. True, Johnson's threat early in February that he was only waiting for
Nash to "make one false move and he would fire him," when coupled with Nash's union
activities , creates a suspicion that he may have been discharged because of that activity and
that the reason assigned was a mere pretext But violations of the Act may not be found on
mere suspicion. Punch & Judy Togs, Inc , 85 NLRB 499 Union membership, office, or
activity does not constitute a grant of license to utter threats of bodily harm, nor does it
immunize against plant discipline. On the testimony and my observation of the participating
witnesses, I am convinced that Nash seriously, and not jokingly, threatened Curry with bodily
harm and that Nash was discharged therefor by Taylor in the interest of plant discipline.
Accordingly, I shall recommend that the allegations of the complaint pertaining to his
discharge be dismissed
C. Interference, restraint, and coercion
Notwithstanding the finding just announced, I find that the threats made by Johnson as
described in the first paragraph of section III, B, above, were violative of Section 8 (a)
(1) of the Act. Though Respondent had the right to "lock up the doors... if the Union made
the going too rough" economically for the Company, Johnson's warning that he was only
waiting for Nash to "make one false move" and he would be fired , considered in its context,
and while Nash was engaged in negotiation with the Company, clearly was intended to dis-
courage Nash by a veiled threat of reprisal if he continued to conduct himself in behalf of
the Union as t:e had in the past. By such conduct , Respondent interfered with , restrained,
and coerced its employees in the exercise of rights guaranteed by the Act and in violation
of Section 8 {a) (1) thereof.
Upon the basis of the above findings of fact and upon the entire record in the case, I make
the ;ollowing:
CONCLUSIONS OF LAW
1. The activities of 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 along the several States and tend to
lead to labor disputes burdening and obstructing commerce and the free flow thereof.
2. The Union is a labor organization within the meaning of Section 2 (5) of the Act.
3. All production and maintenance employees of Respondent at its plant in Miami, Florida,
including shipping and receiving clerks and their helpers, material handlers , truckdrivers,
porters, janitors, and laborers , but excluding office clerical employees , draftsmen , guards,
watchmen , and supervisors 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.
4 At all times since October 19, 1951, the Union has been and now is the exclusive
representative of all the employees in the aforesaid unit for the purpose of collective bargaining
within the meaning of Section 9 (a) of the Act.
5. By failing and refusing at all times on and after January 3, 1952, to bargain collectively
with the Union as the exclusive representative of the employees in the aforesaid unit. Re-
spondent has engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (5) and (1) of the Act
20 Lyons had already left the plant for the day.
LLOYD A. FRY ROOFING COMPANY 1327
6. By interfering with, restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
8. Respondent has not violated the Act by discharging Wilmar J. Nash.
,[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board and in order to effectuate the policies of the National Labor Relations Act, we hereby
notify our employees that:
WE WILL NOT threaten our employees with reprisals because of their union desires
and activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization, to form labor organizations, to join
or assist International Association of Machinists, Lodge No. 613, A. F.L., or any other
labor organization, to bargain collectively through representatives of their own choosing,
to engage in concerted activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities except to the extent
that such right may be affected by anagreement requiring membership in a labor organi-
zation as a condition of employment as authorized in Section 8 (a) (3) of the Act.
WE WILL bargain collectively, upon request, with the above-named union as the ex-
clusive representative of all our employees in the bargaining unit described below with
respect to rates of pay, wages , hours of employment, and other conditions of employment,
and if an agreement is reached, embody such understanding in a signed contract. The
bargaining unit is:
All production and maintenance employees employed at our Miami, Florida, plant
including shipping and receiving clerks and their helpers, material handlers,
truckdrivers, porters, janitors, -and laborers, but excluding office clerical em-
ployees, draftsmen, guards, watchmen, and supervisors as defined in the Act.
THE FROHMAN MANUFACTURING CO.,.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.
LLOYD A. FRY ROOFING COMPANY and LOCAL 504,
GENERAL WAREHOUSEMEN, SHIPPERS, PACKERS, RE-
CEIVERS, STOCKMEN, CHAUFFEURS AND HELPERS, IN-
TERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
A.F.L., Petitioner. Case No. 1-RC-3412. February 25, 1954
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before George A.
107 NLRB No. 274.