The Jacobs Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 18, 1951

94 N.L.R.B. 1214 (N.L.R.B. 1951)

1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
among employees in the appropriate unit who are employed on a
day to be selected by the Regional Director when a representative
number of such persons may be employed, subject to. the limitations
set forth in the Direction of Election.
[Text of. Direction of Election omitted from publication in this
volume.]
THE JACOBS MANUFACTURING COMPANY and LOCAL 379, UNITED AUTO-
MOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, CIO. Case No. 1-CA-513. June 18, 1951
" Decision and Order
On June 28, 1950, Trial Examiner Albert P. Wheatley 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 In-
termediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at. the hearing, and finds that no prejudicial error was committed.
The rulings are hereby affirmed.
The Board has considered the Intermediate Report, the exceptions
and brief, and the entire record in the case. It hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner to the
extent that they are consistent with the additions and modifications
hereinafter set forth.
1. In July 1948, the Respondent and the Union executed a 2-year
bargaining contract which, by its terms, could be reopened 1 year after
its execution date for discussion of "wage rates." 1 In July 1949 the
Union invoked the reopening clause of the 1948 contract, and there-
after gave the Respondent written notice of its "wage demands." In
addition to a request for a wage increase, these demands included a
request that the Respondent undertake the entire cost of an existing
group insurance program, and another request for the establishment
of a pension plan for the Respondent's employees. When the parties
met thereafter to consider the Union's demands, the Respondent re-
fused to discuss the Union's pension and insurance requests on the
1 Article XIX, section 5, of the 1948 contract stated : "After the expiration of one year
from the date hereof either party may request a meeting after fifteen days ' written notice,
the purpose of which shall be to discuss wage rates of employees covered by this
agreement . . .
94 NLRB No. 175.
THE JACOBS MANUFACTURING COMPANY 1215
ground that they were not appropriate items of discussion under the
reopening clause of the 1948 contract.
The group insurance program to which the Union alluded in its
demands was established by the Respondent before 1948. It was
underwritten by an insurance company, and provided life , accident,
health, surgical , and hospital protection . All the Respondent's em-
ployees were eligible to participate in the program, and the employees
shared its costs with the Respondent . When the 1948 contract was
being negotiated , the Respondent and the Union had discussed changes
in this insuram,ce. program , and had agreed to increase certain of the
benefits as well as the costs . However, neither the changes thereby
effected , nor the insurance program itself, was mentioned in the 1948
contract?
As indicated by the Union's request , there was no pension plan for
the Respondent 's employees in existence in 1949. The subject of
pensions, moreover, had not been discussed during the 1948 negotia-
tions ; . and, like insurance , that subject is not mentioned in the 1948
contract.
a. For the reasons stated below , Chairman Herzog and Members
Houston and Styles agree with the Trial Examiner's conclusion that
the Respondent violated Section 8 ( a) (5) of the Act by refusing to
discuss the matter of pensions with the Union.3
It is necessary to determine as a preliminary matter precisely what
the Respondent 's position was with respect to the discussion of pen-
sions and insurance in July and August 1949. In its brief , the Re-
spondent asserts that it was willing to discuss pensions and insurance
at a "separate meeting," but was unwilling to discuss these matters
"at a meeting called for a discussion of wage rates." In substance,
therefore , the Respondent contends that it sought merely to postpone
discussion of pensions and insurance, and to separate these subjects
from wage rates. We believe , however, as did the Trial Examiner,
that the record does not support this contention. In its letter of
August 31,4 the Respondent flatly asserted to its employees , "Pensions,
insurance , and other issues involving money [other than wages] are
not subject to negotiations at this time ." This letter makes no ref-
erence to the reopening clause of the contract, and we fail to see in
its language any indication of a purpose merely to segregate wages
from pensions and insurance . In the light of this evidence, and on
m The Respondent distributed to new employees a p'arhphlet describing the insurance
program. The pamphlet represented the insurance program as a company project ; it
made no mention whatever of the Union.
'For the reasons set forth in their separate opinions , Members Reynolds and Murdock
would find that the Respondent did not violate the Act by refusing to discuss pensions
with the Union.
4 The Respondent 's August 31 letter is set forth in detail in the Intermediate Report,
and is also referred to herein in Section 5.
1216 DECISIONS .OF NATIONAL LABOR RELATIONS BOARD
the record as a whole 75 a majority of the Board 8 is satisfied that the
Respondent made no attempt to separate discussion of pensions and
insurance from the topic of wage rates; in fact, the Respondent took
the adamant position that at the time in question it was not obliged
to discuss pensions or insurance, either together with, or divorced
from' 'a, discussion of wage rates.. The separate- opinion of Member
^t['ardock seems to a majority of his colleagues to overlook this funda-
mental fact.
We are satisfied, too, that the 1948 contract did not in itself impose
of the Respondent any obligation to discuss pensions or insurance.
The reopening- clause of that contract refers to wage rates,and thus
its intention appears to have been narrowly limited to matters di-
rectly related to the amount and manner of compensation for' work.
For, that reason, a requirement. to discuss pensions. or insurance can-
ot be predicated on the languageof the contract.
On the other hand, a majority of the Board believes that, regardless
of the character of the reopening clause, the Act itself imposed upon
the Respondent the duty to discuss pensions with the Union during
,the period in question.
It is now established as a principle of law that the matter of pen-
sions is a subject which falls within the area where the statute requires
bargaining.? And, as noted above, the 1948 contract between the
Respondent and the Union was silent with respect to the subject
of pensions; indeed, the matter had never been raised or discussed by
.the parties. The issue raised, therefore, is whether the Respondent
was absolved of the obligation to discuss pensions because of the
limitation contained in Section 8 (d) of the amended Act dealing with
the duty to discuss or agree to the modification of an existing bargain-
ing contract. The pertinent portion of Section 8 (d) of the Act
provides :
... the duties so imposed shall not be construed as requiring
either party to discuss or agree to any modification of the terms
and conditions contained in a contract for a fixedperiod, if such
modification is to become effective before such terms and condi-
tions can be reopened under the provisions of the contract.
So far as the matter of pensions is concerned, the issue presented
is not novel. On the contrary, it is one which has twice before, in
the Allied Mills 8 and Tide Water 9 cases, been before the Board, and
6 According to the credited testimony of witness Lindholtz , the Respondent never com.
municated to the Union its alleged willingness to discuss pensions and insurance
independently and apart from a discussion of wage . rates.
6 Chairman Herzog, Members Houston and Styles . Member Murdock 's partial dissent.
is directed to this issue.
, Inland Steel Company, 77 NLRB 1, enfd . 170 F. 2d 247 ( C. A. 7), certiorari denied,
336 U . S. 960.
8 Allied Mills , Inc., 82 NLRB 854.
6 Tide Water Associated Oil Company, 85 NLRB 1096.
THE JACOBS MANUFACTURING COMPANY 1217
which, in the Tide Water case, was fully considered and squarely
,.passed.-upon in.the unanimous opinion of the full Board. The crucial
point at issue here, as in the earlier cases, is the construction to be given
the phrase "terms and conditions contained in a contract." (Emphasis
supplied.) The Board, in the Tide Water case, concluded.that the
pertinent portion of Section 8 (d).
' to terms and conditions which have been integrated andrefers
embodied into a writing. Conversely it does not have reference
to matters relating to "wages, hours and other terms and condi-
tions of employment," which have not been reduced to writing.
As to the written terms of the contract either party may refuse
to bargain further about them, under the limitations set forth
in the paragraph, without committing an unfair labor practice.
With respect to unwritten terms dealing with "wages, hours and
other terms and conditions of employment," the. obligation re-
mains on both parties to bargain continuously.
Thus, as already construed by this Board in the Tide Water case,
Section 8 (d) does not itself license a party to a bargaining contract
to refuse, during the life of the contract, to discuss a bargainable sub-
ject unless it has been made a part of. the agreement itself. Applied
here, therefore, the Tide Water construction of Section 8 (d) means
that the Respondent was obligated to discuss the Union's pension
demand.
Members Houston and Styles have carefully reexamined the Board's
construction of Section 8 (d) in the Tide Water case, and are per-
suaded that the view the Board adopted in the Tide Water case best
effectuates the declared policy of the Act. Chairman Herzog, while
joining in the result with respect to the obligation to bargain here
concerning pensions-never previously discussed by the parties-joins
in the rationale herein only to the extent that it is consistent. with his
views separately recited below, concerning the insurance program.
By making mandatory the discussion of bargainable subjects not
already covered by a contract, the parties to the contract are. en-
couraged to arrive at joint decisions with respect to bargainable
matters, that, at least to the party requesting discussion, appear at the
time to be of some importance. The Act's policy of "encouraging the
practice and procedure of collective bargaining" is consequently fur-
thered. 'A different construction of Section 8 (d) in the circum-
stances-one that would • permit a party to a bargaining contract to
avoid discussion when it was sought on subject matters not contained in
the contract-would serve, at its best, only to dissipate whatever the
good will that had been engendered by the previous bargaining nego-
953841-52-'. o1. 94-78
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tiations that led to the execution of a bargaining contract; at its worst,
it could bring about the industrial strife and the production inter-
ruptions that the policy of the Act also seeks to avert.
The significance of this point cannot be overemphasized. It goes
to the heart of our disagreement with our dissenting. colleague,
Member Reynolds. His dissent stresses the need for "contract sta-
bility," and asserts that the furtherance of sound collective bargaining
requires that the collective bargaining agreement be viewed as fixing,
for the term of the contract, all aspects of the employer-employee
relationship, and as absolving either party of the obligation to discuss,
during that term, even those matters which had never been raised,
or discussed in the past. We could hardly take issue with the virtue
of "contract stability," at least in the abstract, and we would certainly
agree that everyone is better off when, in negotiating an agreement,
the parties have been able to foresee what all the future problems may
be, to discuss those problems, and either to embody a resolution of
them in the contract, or to provide that they may not be raised again
during the contract. But we are here concerned with the kind of
case in which, for one reason or another, this has not been done, and
the question is what best effectuates the policies of the Act in such
a case.
In this connection we cannot ignore the fact that to say that a party
to an agreement is absolved by Section 8 (d) of an obligation to
discuss a subject not contained in a contract does not mean that the
other party is prohibited from taking economic action to compel
bargaining on that subject. The portion of Section 8 (d) we are here
'considering does no more than provide a defense to a charge of a
refusal to bargain under Section 8 (a) (5) or 8 (b) (3)' of theAct.
It does not resider unlawful economic action aimed at securing lawful
objectives.10 That being so, the view urged by Member Reynolds
achieves "contract stability" but only at the price of industrial strife,
and that is a result which now more than .ever we must avoid. The
basic policy of this Act to further collective bargaining is founded
on ' the proposition-amply demonstrated by experience-that col-
lective bargaining provides an escape valve for the pressures which
otherwise result in industrial strife. With this policy in mind, we
are loath to narrow the area of mandatory bargaining, except where
the amended statute, in the clearest terms, requires that we do so.
10
We must note, however, contrary to the assertion of Member Reynolds , that nothing in
this decision is to be construed as a determination of the issue of whether a union may
strike to compel bargaining on a modification of a contract which seeks to add a matter
not contained in the contract without complying with the procedural requirements of
Section 8 ( d). Our decision here is limited to a construction of the language "modification
of the terms and conditions contained in a contract ." The issue raised by our dissenting
colleague is not before us in this case, and we in no way pass upon it.
7'llL JACOBS MANUFACTURING COMPANY 1219
The construction of Section 8 (d) adopted by the Board in the Tide
Water case serves also to simplify, and thus to speed, the bargaining
process. It eliminates the pressure upon the parties at the time when
a contract is being negotiated to raise those subjects that may not then
be of controlling importance, but which might in the future assume
a more significant status. It also assures to both unions and employers
that, if future conditions require some agreement as to matters about
which the parties have not sought, or have not been able to obtain
agreement, then some discussion of those matters will be forthcoming
when necessary.
We cannot believe that Congress was unaware of the foregoing con-
siderations when it amended the Act by inserting Section 8 (d), or
that it sought, by the provision in question, to freeze the bargaining
relationship by eliminating any mandatory discussion that might lead
to the addition of new subject matter, to an existing contract.'1 What
Section 8 (d) does do is to reject the pronouncements contained in
some pre-1947 Board and court decisions 12-sometimes dicta, some-
times necessary to the holding-to the effect that the duty to bargain
continues even as to those matters upon which the parties have
reached agreement and which are set forth in the terms of a written
contract. But we believe it does no more. Those bargainable issues
which have never been discussed by the parties, and which are in
no way treated in the contract, remain matters which both the union
and the employer are obliged to discuss at any time.
In so holding, we emphasize that under this rule, no less than in
any other circumstance, the duty to bargain implies only an obligation
"Unlike Member Reynolds we find little in the legislative history that sheds any real
light on the meaning of that portion of Section 8 (d) Involved in this case . Even were
we to assume , as our dissenting colleague asserts, that the provision in question had its
origin in the House bill, it is significant that the provision in the House bill referred
broadly to "modifications of an agreement ," and did not contain the language finally
enacted, i. e. "modification of the terms and conditions contained in a contract." In that
posture we find no basis for our dissenting colleague's reliance on the House report,
which correctly notes that the House bill language did "not require bargaining on any
matter during the term . of a collective bargaining contract."
The most pertinent reference to the relevant portion of Sectio
n `
8 (d) as enacted is
the following statement by Senator Taft :
The amendment to this sub -section providing that the duty to bargain collectively
should not be construed as requiring either party to discuss or agree to any modifica-
tion of the terms of a contract if such modification is to become effective before
the contract may be reopened has been construed on the floor to mean "Parties will
be bound by contract without an opportunity for further collective bargaining."
The provision has no such effect. It merely provides that either party to a contract
may refuse to change its terms or discuss such a change to take effect during the
life thereof without being guilty of an unfair labor practice . Parties may meet
and discuss the meaning of the terms of their contract and may agree to modification
on change of circumstances , but it is not mandatory that they do so.
93 Cong. Rec. 7002; Legislative History of the Labor Management Relations Act, 1947,
U. S. Government Printing Office, p. 1625.
'2 For example , Carroll's Transfer Co., 56 NLRB 935; N. L. R. B. v. Newark Morning
Ledger Co ., 120 F. 2d 262 (C. A. 3) ; N. L. R. B. v. Sands Mfg. Co., 306 U. S. 332;
Wilson cf Co. v. N. L. R. B., 115 F. 2d 759 ( C. A. 8).
1220 DECISIONS ,OF NATIONAL LABOR. RELATIONS BOARD
to discuss the matter in question in good-faith with a sincere purpose
of reaching some agreement. It does not require that either side
agree, or make concessions. And if the parties originally desire to
avoid later discussion with respect-to matters not specifically covered
in the terms, of an executed. contract, they need only so specify in the
terms of.the contract itself. Nothing in our construction of Section
$ (d) precludes such an_agreement, entered into in good faith, from
foreclosing future discussion of matters not contained in the
agreement.'
b. Chairman Herzog, for reasons set forth in his separate opinion,
believes that-unlike the pensions .issue-the Respondent was under
no obligation to bargain concerning the group insurance program."
However, Members Houston and Styles-a minority of the Board
on this issue-are of the further opinion that the considerations dis-
cussed above leading to the conclusion that the Respondent was obli-
gated to discuss the matter of pensions, also impel the conclusion that
the Respondent was obligated to discuss the Union's group insurance
demand. Like pensions, the matter of group insurance benefits is a
subject which has been held to be within the area of compulsory,
bargaining; 15 and like pensions, the Respondent's group insurance
program was not mentioned in the terms of the 1948 contract. Mem-
bers Houston and Styles therefore believe that so far as the controlling
facts are concerned, the ultimate issues presented by the Union's pen-
sion and group insurance demands are identical; and that the views
already expressed hereinabove with respect to the matter of pensions
are equally applicable, and equally controlling, with respect to the
matter of the Respondent's group insurance program.
Members Houston and Styles believe, moreover, that the view
adopted by Chairman Herzog'on the insurance issue is subject to the
same basic criticism as is the view of Member Reynolds-it. exalts
13 For an example of a contract in which such a provision was incorporated , see the
contract between United Automobile Workers of America and General Motors Corporation,
set forth in Labor Relations Manual ( BNA), Vol. 26 , p. 63, 91 , which states:
(154) The parties acknowledge that during the negotiations which resulted in this
agreement , each Jiad the unlimited right and opportunity to make demands and
proposals with respect to any subject or matter not removed by law from the area
of collective bargaining , and that the understandings and agreements arrived at by
the parties after the exercise of that right and opportunity are set forth in this
agreement . Therefore , the Corporation and the Union, for the life of this. agreement,
each voluntarily and unqualifiedly waives the right , and each agrees that the other
shall not be obligated , to bargain collectively with respect to any subject or matter
not specifically referred to or covered in this agreement ; even though such subjects
or matter may not have been within the knowledge or contemplation of either or
both of the parties at the time that they negotiated or signed this agreement.
14 Members Reynolds and Murdock would also find that the Respondent was not obligated
to discuss the group insurance program . Their views on the matter likewise are set
forth in their separate opinions, referred to in footnote 3, above. The complaint is
therefore dismissed as to this aspect ofthecase
15 Inland Steel Company , su'pra: See also W . W. Cross & Company, 77 NLRB 1162
General Motors Corporation , 81 NLRB 779.
THE JACOBS MANUFACTURING COMPANY 1221
"contract stability" over industrial peace; it eliminates mandatory
,collective bargaining on subjects about which one of the parties now
wants discussion, and concerning which it may well be willing to take
economic action if discussion is denied, solely because the matter has
once been discussed in a manner which may warrant an inference that
the failure to mention that subject in the contract was part of the
bargain 16 Members Houston and Styles are constrained to reject the
.view of Chairman Heroog for the further reason that it would establish
a rule which is administratively unworkable, and would inject danger-
ous uncertainty into the process of collective bargaining. Apart from
the extremely difficult problems of proof-illustrated in this very
case 14-which would constantly confront the Board, in cases of this
type, the parties to collective bargaining negotiations would always be
faced with this question after a subject has been discussed-"Have we
really negotiated, or are we under an obligation to discuss the subject
further if asked to?" To this query the rule of the Tide Water case
gives a clear and concise answer : "You are obligated to discuss any
bargainable subject upon request unless you have reduced your agree-
ment on that subject to writing or unless you have agreed in writing
not to bargain about it during the term of the contract." Members
Houston and Styles would- apply that rule without deviation.
With respect to the remaining issues in this case the Board is unani-
mous :
2. As set forth in the Intermediate Report, the Respondent rejected
the Union's request for an increase in hourly rates. Such an increase,
the Respondent asserted, would have necessitated a rise in the selling
price of its products, which, the Respondent maintained, was not
feasible in view of a decline in its sales and a poor outlook for the
future. The Union replied that it could not accept the Respondent's
"mere statement" that the Respondent was in no position to pay an
increase. Whereupon the Union requested "information on incoming
and outgoing orders," and also asked "for a general look at the Com-
pany's books to find out their general financial position."
The Respondent refused to comply with the Union's request on the
ground that the question of whether an increase should be granted was
,one within the province of the Respondent's "business judgment" alone.
Accordingly, the Respondent declared that the showing of books was
"definitely out."
16 Members Houston and Styles find nothing in the evidence set forth by Chairman
Herzog which demonstrates , as he finds , that rejection of the Union's insurance proposal
was part of the bargain which the parties made when they negotiated the 1948 contract.
The responses of Lindholtz to a series of leading questions are just as consistent with a
finding that the Union's proposed changes in the insurance program had been summarily
rejected by the Respondent , and that the changes subsequently made in the program
had been effected unilaterally by the Respondent without agreement by the Union.
11 See footnote 16, supra.
1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board's recent decision in the Southern Saddlery is case is de-
cisive, we think, on the issue posed by the Respondent's blanket refusal
to comply with the Union's request for information. The Board held
in that case that an employer had not bargained in good faith when it.
refused to take reasonable steps to substantiate its assertion that it
could not afford to grant a requested increase in pay, stating :
The Respondent, by maintaining the intransigeant position that.
it was financially unable to raise wages and, at the same time,
by refusing to make any reasonable efforts to support or justify
its position, erected an insurmountable barrier to successful con-
clusion of the bargaining. (Emphasis supplied.)
It is true that in the Southern Saddlery case the union's request
was a limited one for specific information, whereas in the instant case
the Union added to its request for specific information on incoming
and outgoing orders a general request to explore the Respondent's
books. However, the vice which tainted the employer's conduct in
the Southern Saddlery case was its adamant refusal to disclose any
information when requested. And here, precisely as in Southern
Saddlery, the Respondent's conduct is tainted, and its lack of good
faith in bargaining is shown, by its refusal to supply any substantiat-
ing data whatever. That being so we are not called upon to determine
whether the Union was entitled to all of the information it requested..
It suffices that the Respondent adamantly insisted that it need go no,
further in bargaining over a wage increase than to express its inability
to grant the wage increase the Union had sought, and that it refused
to disclose any record information whatever to substantiate its
position 19
Accordingly, like the Trial Examiner, we unanimously conclude
that such conduct of the Respondent was-violative of Section 8 (a) (5)
of the Act.
3. We agree with the Trial Examiner that the Respondent's re-
fusal to meet with the Union, when requested, further evidenced the
Respondent's bad faith in bargaining. After two meetings with
the Union in which the Respondent rejected the Union's demands, the
Respondent informally discussed, but did not assent to, a third formal
meetings. In such discussion, the Respondent maintained that a
18 Southern Saddlery Company, 90 NLRB 1205.
19 The Respondent , by cross -examination of Lindholtz, the Union' s president , sought to
ascertain the specific information that the Union expected to elicit from its requested
exploration of the Respondent ' s books. The Trial Examiner sustained an objection to
this line of inquiry , and the Respondent has specifically excepted to the Trial Examiner's
ruling. As is set forth in the text , in the view we take of the issue raised by the Union's
request for information , the Trial Examiner ' s ruling did not prejudice the Respondent:
So long as the defect in the Respondent 's conduct is seen to be its adamant refusal to
supply any information whatever, then the extent of the Union 's request , or the specific
information it expected to derive therefrom , are not material elements in this case.
THE JACOBS MANUFACTURING COMPANY 1223
further meeting was unnecessary "unless you have something new
and different to offer." The Union replied, both orally and by letter,
that it had "a great many arguments to offer"; but the Respondent,
unyielding, merely requested that the Union communicate by letter
such "new and different thoughts as it might entertain."
Even were we to assume that the Respondent and the Union reached
an impasse at their second meeting, which perhaps justified a refusal
to meet and rediscuss old arguments,2° such impasse was broken when
the Union, in response to the Respondent's request for a showing that
another meeting would not be fruitless, indicated that it had new
arguments to offer. For this reason, the Respondent could not then
discharge its affirmative obligation under the Act by countering with
a further request for the Union to submit its proposals in writing : At
that state, the Respondent's good faith in bargaining could best have
been demonstrated by complying with the Union's not unreasonable
request for a conference.
4. We unanimously disagree, however, with the Trial Examiner's.
conclusion that the Respondent exhibited a lack of good faith in
bargaining by the manner in which it treated the Union's grievances.
After the Respondent had refused to discuss the Union's pension
and insurance demands, Lindholtz, the Union's president, filed a griev-
ance form 21 with the Respondent on behalf of the Union and himself
"as an employee." The grievance form referred to the dispute
between the Union and the Respondent concerning the status of pen-
sions and insurance under the reopening clause of the 1948 contract,
and requested that this dispute be processed through the grievance
procedure and, if necessary, arbitrated. The Respondent, however,
returned the grievance form, stating, in letters and at a conference
with union representatives, that the grievance had not been timely
filed,22 and that the filing of the grievance was only a subterfuge to
compel the Respondent to bargain about pensions and insurance.
The Union then filed a second grievance form with the Respondent,
.charging that the Respondent was violating the grievance and arbitra-
tion provisions of the 1948 contract by its refusal to process the
original grievance, and again seeking arbitration of the insurance
and pension dispute. The Respondent also returned the second griev-
ance form, accompanied by a letter asserting that the Respondent
viewed the second grievance as a mere attempt to reopen the first
20 See N. L. R. B. v . Remington Rand, Inc., 94 F . 2d 862, 872 (C. A. 2) ; N. L. R. B. v.
Algoma Plywood and Veneer Company, 121 F. 2d 602 , 606 (C. A. 7) ; Essex Wire Corpora-
tion, 19 NLRB 51; The Fafnir Bearing Company, 73 NLRB 1008, 1011.
2i The grievance form is printed and bears the Respondent ' s name and address at its
head. Its "purpose and use" is explained in detail on the reverse side, where it is
stated that "any employee may receive this form."
22 The Respondent relied upon a clause in the 1948 contract providing that any
"grievance" not presented for disposition within 10 days after its occurrence should
.,not thereafter be considered a grievance under this agreement."
1224 DECISIONS OF NATIONAL LABOR-RELA1£ONS BOARD
one.. Subsequently, the Respondent met with the Union, again ex-
plained its position, and again refused to process the grievances.
Article IV of the 1948 contract established a grievance procedure
for settling differences arising between the Respondent and "any
employee concerning the interpretation of any provision of this agree-
ment with reference to his rate of pay, wages, hours of employment
and conditions of employment." The grievance procedure estab-
lished therein provided that the "employee having such a grievance"
should lodge the matter with a foreman in the first instance; if a
Satisfactory adjustment was not made by the, foreman, the matter
could be referred, by successive stages, to. the Respondent's personnel
manager, then to its factory manager, and ultimately to its executive
representatives.
Article XII of the 1948 contract provided for reference to arbi
tration of a "dispute or difference of opinion between the Company
and any employee or .group of employees as to the meaning and
interpretation of any provision hereof, . . . which dispute or dif-
ference arose during the processing of a grievance under the grievance
procedure." Article XII did not apply, however, to disputes arising
out of meetings held pursuant to the contract's reopening clause.23
The stated requests in the grievance forms filed by, the Union
make evident the fact that the Union was bent upon securing arbi-
tration of the dispute over the meaning of the reopening clause. Such
being the strategy of the Union, it would appear that 'the Union
resorted to the grievance procedure because the 1948 contract pro-
vided that only disputes arising "during the processing of a grievance"
were arbitrable. But, by the terms of the contract establishing it,
the procedure invoked necessarily involved a processing of the dis-
pute between the Respondent and the Union at foreman and per,
sonnel manager echelons; and this, under the circumstances that
prevailed at the time, was patently incongruous. The propriety, of
thus using a procedure which under the particular circumstances here
seems to have been intended as a vehicle for the redress of wrongs
suffered by individual employees, and not as a vehicle to settle dis-
putes between the Respondent and the Union with respect to broad
questions of contract interpretation, appears highly questionable.
Indeed, the Union's resort to the grievance procedure was made in
the face of the specific limitations in the 1948 contract that pre-
vented arbitration of disputes originating in discussion, under the
^ Article XIX , section 5, of the 1948 contract states : "After the expiration of one year
from the date hereof either party may. request a meeting after fifteen days ' written notice,
the purpose of which shall be to discuss the wage rates of employees covered by this
agreement . It is understood that with reference to any meeting of the parties the
contract provision of arbitration and work stoppages under Article XII of this agreement
are not applicable. Any action taken theieon will not constitute ' a violation of any
provision - of this agreement ." ( Emphasis supplied.)
THE JACOBS MANUFACTURING COMPANY 1225.
reopening, clause. - These considerations lead us to the conclusion.
that a. bona We grievance did not exist, and that the use of the
grievance procedure by the Union was improper.
Under the circumstances we would be loath to predicate a violation.
of the Act by the Respondent upon the Union's improper use of the
established grievance procedure. But even apart from this considera-
tion, we believe that the Respondent satisfied any obligation it may
have had to bargain with respect. to the alleged "g-rievance." Al-
though after the execution of a contract an employer is under a duty
to bargain collectively concerning the disposition of; grievances,?'.
there is nothing in the Act which compels an employer to agree to,
a contention that certain subject matter constitutes a grievance. True,.
it follows from the positive obligation that even though an employer
may believe, as in fact did the Respondent, that no grievance exists, it.
may -not peremptorily refuse to meet and discuss the matter, or to
make known its position and the reason therefor. But this Respond-
ent certainly cannot be charged with such conduct. For by acting-
on the so-called grievance with dispatch, by the several letters it wrote
to the Union, and by twice meeting the Union's representatives, the
Respondent fully explained to the Union its position with respect
to* the matter; and 'by so doing, it satisfactorily met the Act's
requirements.
.
5. Nor do we affirm the Trial Examiner's finding that the Respond-
ent violated the Act by sending to its employees the letters of August-
31 and December 19, 1949, the contents of which are set forth in full
in the Intermediate Report. The August 31 letter reported to the'
employees the position taken • by the Respondent in the ' bargaining
negotiations with the Union and explained that the Respondent could
not then afford to increase wage rates because of its business position.
The December 19 letter also reported on the condition of the Re-
spondent's business and promised that the Respondent would subse-
quently present a pension plan to the Union. Neither of the letters
contained a threat of reprisal or force, or promise of benefit, and
we find nothing in the letters to indicate, as the Trial Examiner
apparently concluded, that they were attempts to undermine the
prestige of the Union. '
6. The Trial Examiner 'found that the Respondent violated the
Act by withholding from the Union data which it requested, respect-
ing the group insurance coverage. 'The record shows that shortly
before the hearing herein, the Respondent, reversing a previous re-
fusal, had promised to furnish the requested information when it had
been assembled; and the record further shows that the Respondent
24 See The Timken Roller Bearing Company, 70 NLRB 500 ; Alexander Milburn Company,
62 NLRB 42 ; U. S. Automatic Corporation , 57 NLRB 124; Hughes Tool Company,
56 NLRB 981 ; Rapid Roller Co., 33 NLRB 557.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had not had the necessary opportunity to assemble the data before
the hearing was held.
The information requested by the Union was, as the Trial Exami-
ner points out, germane to collective bargaining between the parties.
However, in view of the fact that the Respondent was, at the time of
the 'hearing, apparently in, the process of supplying the information
requested, we do not believe any useful purpose would be served by
predicating a finding of refusal to bargain on the Respondent's con-
duct. Accordingly, we do not base our Order herein upon the Re-
spondent's failure to supply the requested information respecting
insurance.
Order
Upon the entire record in this case , and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended , the National Labor
Relations Board hereby orders that The Jacobs Manufacturing Com-
pany, West Hartford , Connecticut, its officers , agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Local 379, United Auto-
mobile, Aircraft and Agricultural Implement Workers of America,
CIO, as the exclusive representative of all hourly rated production
and maintenance employees at the Respondent's West Hartford, Con-
necticut , plant, excluding office employees, count-station clerks, time-
keepers, cafeteria employees , medical employees , temporary employ-
ees, watchmen , guards , executives, foremen, assistant foremen, and
other supervisors as defined in the Act.
(b) Interfering in any other manner with the efforts of Local 379,
United Automobile, Aircraft and Agricultural Implement Workers
of America , CIO, to bargain collectively on behalf of the employees
in the aforesaid bargaining unit.
2. Take the following affirmative action which will effectuate the
policies of the Act :
(a) Upon request bargain collectively with Local 379, United Auto-
mobile, Aircraft and Agricultural Implement Workers of America,
CIO, as the exclusive representative of all its employees in the afore-
said bargaining unit, with respect to rates of pay, wages , hours of
employment , or other terms or conditions of employment , including
the subject of a pension plan or program that is not already referred
to in , or covered by, the terms of an existing collective bargaining
agreement.
(b) Upon request furnish Local 379, United Automobile, Aircraft
and Agricultural Implement Workers of America , CIO, with such
statistical and other information as will substantiate the Respondent's
position in bargaining with the Union.
THE JACOBS MANUFACTURING COMPANY 1227
(c) Post at its plant in West Hartford, Connecticut, copies of the
notice attached hereto, marked "Appendix A." 25 Copies of said
notice, to be furnished by the Regional Director for the First Region,
shall, after being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof, and main-
tained by it for sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(4) Notify the Regional Director for the First Region in writing
within ten (10) days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
CHAIRMAN HERZOG , concurring in part :
I believe that this Respondent was not under a duty to discuss the
Union's group inrance demand. The individual views which lead
me, by a different road, to the result reached on this issue by Members
Reynolds and Murdock,28 are as follows :
Unlike the issue of pensions, concerning which the contract is silent
and the parties did not negotiate at all in 1948, the subject of group
insurance was fully discussed while the Respondent and the Union
were negotiating the agreement. True, that agreement is silent on
the subject, so it cannot literally be said that there is a term "contained
in" the 1948 contract relating to the group insurance program. The
fact remains that during the negotiations which preceded its execu-
tion, the issue was consciously explored. The record reveals that the
Union expressly requested that the preexisting program be changed
so that the Respondent would assume its entire cost, the very proposal
that was again made as part of the 1949 midterm demand which gave
rise to this case. The Respondent rejected the basic proposal on this
first occasion, but agreement was then reached-although outside the
written contract-to increase certain benefits under the group insur-
ance program.27
"In the event this Order is enforced by decree of a United States Court of Appeals,
there,shall be inserted in the notice before the words, "A Decision and Order" the words, .
"A Decree of the United States Court of Appeals Enforcing."
"For different reasons, set forth In their separate opinions , Members Reynolds and
Murdock would also find that the Respondent was not obligated to discuss the group
insurance program.
17 The Union' s president, Stig Lindholtz, a witness called by the General Counsel,
testified on cross-examination by the Respondent 's counsel . His replies , which could
therefore hardly' have been to "leading questions ," were as follows :
Q. At that time, in 1948, did the Company extend or amplify the benefits under the
Insurance program?
The Witness : Well, it was part of negotiations at that time.
Q. That is true?
A: An agreement was reached to changes in insurance coverage.
Q. And the company extended benefits, obtained extended improvements?
A. It wasn't a unilateral action, our contribution also increased at that time.
Footnote continued on following page.
1228 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In my opinion, it is only reasonable to assume that rejection of the
Union's basic proposal, coupled in this particular instance with en-
hancement of the substantive benefits, constituted a part of the con-
temporaneous "bargain" which the parties made when they negotiated
the entire 1948 contract. In the face of this record'as to what the
parties discussed and did, I believe that it would be an abuse of this
Board's mandate to throw the weight of Government sanction behind
the Union's attempt to disturb, in midterm, a bargain sealed when.
the original agreement was reached.
To hold otherwise would encourage a labor organization-or, in a:
Section 8 (b) (3) case, an employer-to come back, time without num-
ber, during the term of a contract, to demand resumed discussion of
issues which, although perhaps not always incorporated in the written
agreement, the other party had every good reason to believe were put
at rest for a definite period. I do not, think that the doctrine of the
Tide Water case was. ever intended to go so far as to extend to facts
like these, or that it should be so extended. Without regard to the
niceties of construing the words of Section 8 (d) of the amended Act,
I am satisfied that it would be, both inequitable and unwise to impose
a statutory obligation to bargain in situations of this sort. That would.
serve only to stimulate uncertainty and evasion of commitments at a•
time when stability should be the order of the day.
MEMBER REYNOLDS, concurring separately and dissenting in part :
Although I join my colleagues in finding that the Respondent has
violated Section 8 (a)' (5j of the Act, I cannot agree that it has done
so by refusing to bargain on the subjects of pensions and insurance.
Reconsideration of the question which this case raises leads me to
the conclusion that in the Allied Mills 28 and Tide Water 29 cases, the
Board placed an erroneous interpretation on the language of the Sec-
tion 8 (d) proviso insofar as it refers to the requirements of collective
28
29
Q. All right, as a result of negotiations with the Company, the insurance program'
had extended benefits in 1948, is that correct?,,
A. That is correct.
s s s s s s _ s
Q. Did the Union and the'Company negotiate an insurance plan in 1948?
A. That's right. .
Q. And by that insurance plan, there was an increase in the daily hospital benefits,
isn't that correct?
A. That's right.
Q. What other,gains were there?,
A. I think life insurance was increased.
Q. How about surgical benefits?
A. Surgical benefits. That is all.
Q. And those involved an added cost under the plan?
A. Added costs for both parties.
Q. Yes, and the Union and the Company shared that added cost: rather, the
employees and the Company shared that added cost.
A. Yes.
Allied Mills, Inc., 82 NLRB 854.
Tide Water Associated Oil Company, 85 NLRB 1096.
'THE- JACOBS• MANUFACTUR'I'NG COMPANY 1229
bargaining during a contract term 30 Those cases interpret the perti-
Went language of the proviso 31 to mean that a. request during the term
of a contract to bargain collectively on subjects which have' not been
reduced to writing and integrated in the contract is not a request to
-modify the contract. It logically follows, notwithstanding' my col-
leagues' summary statement that they are not deciding the issue, that
since no modification of the contract is contemplated, the party mak-
ing such a request to bargain is relieved of the obligation to comply
with certain procedural duties prescribed in Section 8 (d) 32 Where,
as in this case, a union makes the request, the union would not then
have to observe, among other things, the 60-day no=strike, or "cooling
off," period'33 and could enforce its request 'by "quickie strike," pre-
cisely the practice which the Board has found Section 8 (d) seeks to
eliminate.34
It is the frustration of this salutory statutory objective, in addition
to the reasons developed below, which convince me that the interpreta-
•tion of Section 8 (d) adopted in the Allied Mills -and Tide Water
cases, and perpetuated with respect to the subject of pensions in this
case, is incorrect. In undertaking the reexamination of the question
presented by these cases, it would be' unrealistic to- say that the lan-
guage of the Section 8 (d) proviso is unambiguous. One need not
look beyond the three opinions in this case and the diversity of opin-
ions in the Wilson case, supra, to be aware that reasonable men may
differ.with respect to their interpretations of the various portions of
30 My disagreement with the treatment of Section 8 (d) in the Allied Hills and Tide
Water cases does not mean that I would not now reach the same conclusions with respect
to the allegations in the complaints that each of the respondents there refused to bargain
in violation of Section 8 (a) (5) of the Act . In both cases , the respondents refused to
bargain concerning pensions prior to the execution of the contracts in question. Such
refusals to bargain continued until remedied . ( Southern Saddlery Company, 90 NLRB
1205 .) Accordingly , without making separate independent findings of violations of
Section 8 ( a) (5) during the terms of the contracts , I would still find that the respondents
in those cases refused to bargain in violation of the Act prior to the execution of the
contracts and at all times thereafter.
31 This language of the proviso is as follows : "and the duties so imposed shall not be
construed as requiring either party to discuss or agree to any modification of the terms
and conditions contained in a contract for a fixed period, if such modification is to become
effective before such terns and conditions can be reopened under the provisions of the
contract."
32 In pertinent part, the proviso to Section 8 (d) states : "the duty to bargain collectively
shall also mean that no party to such contract shall terminate or modify such contract,
unless the party desiring such termination or modification " complies with certain
procedural requirements. . -
33 The fourth procedural duty is : "(4) continues in full force . and effect , without
resorting to strike or lock-out , all the terms and conditions of the existing contract for a
period of sixty (lays after such notice is given or until the expiration date of such contract,
whichever occurs later . . . Any employee who engages in a strike within the sixty-day
period specified in this subsection shall lose his status as an employee of the employer
engaged in the particular labor dispute , for the purposes of sections 8, 9, and 10 of this
Act, as amended , but such loss of status for such employee shall terminate if and when
he is reemployed by such employer."
31 United Packinghouse Workers of America, CIO, et at . ( Wilson and Co., Inc.), 89
NLRB 310. '
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this section of the Act. Under these circumstances, resort to legisla-
tive history as well as the consideration of sound industrial relations.
practices are necessary to. resolve whatever ambiguity exists in the
statutory language.35
H. R. 3020, as reported and passed by the House, contained in Sec-
tion 2, among other definitions, a definition of the terms "bargaining
collectively" and "collective bargaining." After discussing these
terms generally, Section 2 provided that the terms imposed the af-
firmative duty on the parties to a contract to settle disputes by "follow-
ing such procedure" as is provided in the contract "for adjusting or
settling such disputes," but that "such terms shall not be construed
as requiring that either party discuss modification of an agreement
during its term except pursuant to the express provisions thereof."
House Report No. 245 which accompanied H. R. 3020, explaining the
definition of these terms, stated "it does not require bargaining as any
matter during the term of a collective bargaining agreement, except
as the express terms of the agreement permit." (Emphasis supplied.)
S. 1126, as reported and passed by the Senate, generally defined in
Section 8 (d) the duty to bargain collectively during the term of a
collective bargaining agreement.
Section 8 (d) as enacted represents a virtual verbatim incorporation
of 8 (d) of the Senate bill, plus-the language pertinent to this case.
This language although by no means identical with the language
contained in the House bill, does nevertheless represent the tenor of
the House version. Referring to the language added by the House
and Senate conferees, the Conference Report stated : "One of the
important changes is the inclusion of a provision indicating that the
duty, to bargain is not to be construed as requiring either party to
discuss or agree to any modification of the terms and conditions con-
tained in a contract for a fixed period if such modification is to become
effective before such terms and conditions can be reopened under the
provisions of the contract." This, however, amounts to little more
than a paraphrase of the statutory language.
Thus, we are left with the fact that the relevant language of the
Section 8 (d) proviso appears to have had its genesis in the original
House bill, and that the report accompanying that bill explained
the language as not requiring "bargaining on any matter during the
term of a collective bargaining agreement, except as the express terms
of the agreement permit." There is nothing in the Conference Report
which indicates that such a construction would not be a reasonable
construction with respect to the language of Section 8 (d) in question.
Indeed a statement by Senator Taft during debate on the Conference
Agreement supports the conclusion that this is the proper construe-
85 National Tube Company, 76 NLRB 1199, 1203.
THE JACOBS MANUFACTURING COMPANY, 1231
tion. Senator Morse, after a lengthy analysis of Section 8 (d),
stated "the parties will be bound by the contract, without an oppor-
tunity for further collective bargaining in regard to it." Senator
Taft noting that the relevant language of Section 8 (d) had "been
construed on the floor to mean parties will be bound by contract
without an opportunity for further collective bargaining," explained
that
the provision has no such effect. It merely provides that either
party to a contract may refuse, to change its terms or discuss
such a change to take effect during the life thereof without being
guilty of an unfair labor practice. Parties 'may meet and dis-
cuss the terms of their contract and may agree to modifications
on change of circumstances, but it is not mandatory that they
do so.
Thus Senator Taft clearly interpreted 8 (d) as stating that the parties
are not bound to discuss changes to take place during the life of the
contract.36
On the basis of the foregoing, it is my opinion that Section 8 (d)
imposes no obligation on either party to a contract to bargain on any
matter during the term of the contract except as the express provi-
sions of the contract may demand." This is a result reasonably com-
patible with the particular Section 8 (d) language involved, as well
as with Section 8 (d) as a whole. Moreover, not only does the result
accord stability and dignity to collective bargaining agreements, but
it also gives substance to the practice and procedure of collective
bargaining.
It is well established that the function of collective bargaining
-agreements is to contribute stability, so essential to sound industrial
relations. Contractually stabilized industrial relations enable em-
ployers, because of fixed labor costs, to engage in sound long-range
production planning, and employees, because of fixed wage, seniority,
promotion, and grievance provisions, to anticipate secure employment
tenure. Hence, when an employer and a labor organization have
through the processes of collective bargaining negotiated an agree-
11 The Board 's reliance on this statement of Senator Taft's to support the result reached
in the Allied Mills and Tide Water cases appears erroneous . Professors Cox and Dunlop,
in The Duty to Bargain Collectively During the Term of an Existing Agreement, 63 Harv.
L. Rev. 1097 ( 195), share this view. At p. 1129, these authors comment "This statement
[of Taft], in answer to the charge that Section 8 (d) froze the terms of employment
contained in a collective bargaining agreement, pointed out that the parties might
voluntarily discuss proposed modification and change their contract but that It is not
mandatory that they do so .' This was the thrust of the paragraph and [Taft] seems
to have had no other thought in mind. Nothing in the passage suggests the N. L. It. B.
[Allied Mills and Tide Water ] distinction nor can we discover any basis for it in the
other legislative explanations of Section 8 (d)."
si The parties may, of course , enter into voluntary negotiations at any time during the
term of the contract. See footnote 9, supra, and Senator Taft's statement quoted above
in the body of this opinion.
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lent' containing the terms and conditions of employment for a definite
period of time, their total rights and obligations emanating from the
employer, employee relationship should remain fixed for that time.
Stabilized therefore are the rights and obligations of the parties with
respect to all bargainable subjects whether the subjects are or are not
specifically set forth in the contract. To hold otherwise and prescribe
bargaining on unmentioned, subjects would result in continued alter-
ation of the total rights and obligations under the contract, thus
rendering meaningless the concept of contract stability.
That a collective bargaining agreement stabilizes all rights and
conditions of employment is consonant with the generally accepted
concept of the nature of such an agreement. The basic terms and
conditions of employment existing at the time the collective bargain-
ing agreement is executed, and which are not specifically altered by,
or mentioned in, the agreement, are part of the status quo which the
.Parties, by implication, consider as being adopted as an essential ele-
ment of the agreement.18 This view is termed "reasonable and logi-
cal," 39 and its' widespread endorsement as sound industrial relations
practice makes it a general rule followed in the arbitration of. disputes
arising during the term of a contract 40 The reasonableness of the
approach is apparent upon an understanding of collective bargaining
'techniques. Many items are not mentioned in a collective bargaining
38 Brown , Management Rights and the Collective Agreement , Proceeding First Annual
Meeting of Industrial Relations Research Association 145 (1948). At P. 149, Prof.
Brown states: "The agreement, no matter how short , does provide a guide to modes of
procedure and to the rights of the parties on all matters affecting the conditions of
employment . Where explicit provisions are made, the question is relatively simple. But
'even where the agreement is silent , the parties have , by their silence, given assent to a
continuation of the existing modes of procedure."
a° Taylor , Government Regulation of Industrial Relations ( 1948 ), at p. 298, comments
"Such an approach is reasonable and logical . Unions have a right to make a request for
a change in any practices or conditions of employment during contract negotiations.
If no issue is raised by the union at negotiation time, no problem of mutual concern then
exists. Should a question arise over nonagreed -upon practices during the term of an
agreement, and if it is not settled by mutual agreement, the problem can be dealt with
in the next general negotiation . A disadvantage to this kind of relationship is that some
problems may continue too long as unresolved `sore spots.' That is, unless the parties
see the need for coming to a mutual agreement about them. On the other hand, continuous
negotiation over the basic terms of employment doesn ' t contribute to a stable relationship
and can seriously interfere with the main job of labor and management -producing goods."
40 See In re Namn's, Inc. and United Retail, Wholesale and Department Store Union,
.Department Store Employees Union, Local 1250 ( CIO), 7 LA 18 ( 1947 ) ; In re Terre
Haute Water Works Corp. and United Mine Workers of America, District 50, Local 13137,
5 LA 747 (1946). In the July 1, 1948, Naushon Mills Arbitration Award by Prof. Brown,
and discussed at 63 Harv. L. Rev. ' 1120 , the contract was a comprehensive agreement
dealing with most of the common subjects of collective . bargaining . . Severance pay was
not mentioned '; yet, when the Naushon Mill went out of business , the union demanded
such compensation for the dismissed employees . Under an arbitration clause applicable
to all disputes arising during . the term of the agreement , the arbitrator ruled :
It is my judgment that the granting of the Union's request would involve a change
in the terms of the Agreement . The agreement makes no provision for severance
pay . . . There is no clause which , even by inference , contains authorization for
awarding severance pay. It seems entirely clear that the arbitrator could award
such pay only by ignoring the terms of the Agreement.
THE JACOBS MANUFACTURING COMPANY 1233
agreement either because of concessions at the bargaining, table or
because one 'of the parties may have considered it propitious to forego
raising one, subject in the hope of securing a more advantageous deal
on another. Subjects traded off or foregone should, under these cir-
cumstances, be as irrevocably settled as those specifically covered and
settled by the agreement. To require bargaining on such subjects
during midterm debases initial contract negotiations.
'Attributing this totality of scope to a'collective bargaining agree-
nlent comports with the meaning usually given the'word modification.
• For ega"mp'le, 'the. Board 'has customarily characterized the addition
•of'.a term to a contract as a modification'i And, as a'matter of law,
*. modification fhas variously been described as : "A change, an alteration
-which introduced n. ew elements into the'details'," 42 or as -"to make dif-
ferent by change of quality 1) 43 or as "to give new forln, character,
force or apearance to." 44 In view of this understanding of the term
modification and in view of all the foregoing, I would find that a con-
tract would be modified within the meaning of Section 8 ,(d) by any
addition to, deletion from, or change in the written agreement, or by
a;ny change in the basic terms and conditions of employment existing
at the time the collective bargaining agreement was executed but
which were not incorporated into the written instrument.
'Eliminating the duty to bargain in, midterm concerning items not
mentioned in the contract does not mean that the collective bargaining
:process ends with the negotiation of the contract. Day-to-day griev-
ances and other disputes arising out'of the employer-employee relation-
ship are ever present. The settlement of these matters is part and
parcel of the collective bargaining process, and it- is in this regard
that there remains upon the parties the continuing duty to bargain
.collectively. I believe that the present trend of this Board exempli-
fied by today's decision' on the subject of pensions is directly attrib-
utable, among other things, to its failure to distinguish between these
two phases of collective bargaining, namely the negotiating and the
carrying out of the agreement. The former has been likened to the
legislative function of enacting the basic employment terms, and the
latter to the administrative or quasi judicial function of applying those
terms.45 Evaluated in this light, negotiating or legislating the basic
41 E: g. Shop well Foods, Inc. et at., 87 NLRB 1112 , and other cases involving the question
'of whether contract reopenings constitute grounds for removing contracts as bars to
representation case elections.
42 Black 's Law Dictionary . In Webster's New International Dictionary , Second Edition,
unabridged , the verb "to modify" is defined as "to change somewhat the form or qualities
of ; to alter somewhat ; as to modify the terms of a contract."
93 Cross v . Nee, 18 F. Supp . 589.
44 Edwards v. Cooper, 97 N. E. 1047.
41 "The formation of the contract is the culmination of collective bargaining . At that
point the legislative process in labor relations is over and the executive process of
application and interpretation begins ." Rice, The Legal Significance of Labor Contracts
Under the National Labor Relations Act, 37 Mich . L. Rev. 693-4.
953841-52-vol. 94-79
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-terms of the agreement need be undertaken only periodically, usually
at annual or bienniel conferences mutually agreed upon by the parties.
Collective bargaining during the term of the contract therefore would
be mandatory only with respect to administering or interpreting the
terms of the contract in accordance with the procedure outlined in the
contract."
It thus appears clear that sound industrial relations practices as
well as the legislative history of Section 8 (d) supports the conclusion
that parties to a collective bargaining agreement should be under no
duty to bargain on any matter concerning modifications of the con-
tract during its term except as the contract may itself provide. Ad-
herence to this view would not only effectuate the purposes of Section
8 (d) ,47 but would also effectuate the broader policy of the Labor Man-
agement Relations Act "to provide orderly and peaceful procedures
for preventing the interference by [employers and employees] with
the legitimate rights of the other. 11 48
MEMBER MURDOCK, dissenting in part:
I am unable to agree with my colleagues of the majority that by
refusing to discuss pensions and insurance with the Union under the
particular circumstances of this case, the Respondent violated Sec-
tion 8 (a) (5) of the Act.
Despite the fact that the reopening clause in the contract which
the Union here invoked was limited to "wage rates," the Union in-
cluded insurance and pensions in its demands thereunder in addition
to a wage increase. In my view the Respondent properly took the
position that the parties were meeting pursuant to the reopening pro-
vision of the contract to discuss wage rates and that pensions and in-
surance were not negotiable thereunder and would not be discussed at
that time. The Respondent's position was clearly stated not only
orally but in its letter to the Union of September 2, 1949, in which
it said: "As we have advised you, pensions are not a matter of dis-
cussion or negotiation within the meaning of our contract which
provided for discussion at this time of wage rates only." Inasmuch
as the Union never requested bargaining on pensions and insurance
independent and divorced from a discussion of wage rates under the
4e In United Elastic Corporation, 34 NLRB 768, the Board , at 773, stated : "The stability
of labor relations that the statute seeks to accomplish by the encouragement of the collective
bargaining process ultimately .depends upon the channelization of the collective bargaining
relationship within the framework of a collective bargaining agreement , and the adherence
thereto by the contracting parties."
In Timken Roller Bearing Co. v. N. L. it. B., 161 F. 2d 949,955 ( C. A. 6), the Court
stated, "The purpose of bargaining is to reach an agreement resulting in a contract
binding on both parties and providing a framework within which the process of collective
bargaining may be carried on."
'7 This comports with the Board's view in the Wilson case, supra, that "all [Section 8
(d) ] would appear to mean Is that either party , may, with impunity , refuse to bargain
with respect to contract modifications until a proper time, " thereby eliminating so-called
"quickie strikes."
48 From "Declaration of Policy," Section 1 (b), Labor Management Relations Act, 1947.
I
THE JACOBS MANUFACTURING COMPANY 1235
reopening clause, the Respondent's willingness to bargain thereon
independently was never put to test. -It thus cannot be said to have
refused to bargain thereon independently pursuant to an obligation so
to bargain under the Allied Mills and Tide Water doctrine. Under
the view I take of the facts, it becomes unnecessary for me to reexam-
ine the Board's construction of Section 8 (d) in the Tide Water case
as my colleagues have done.
Appendix A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with LOCAL 379,
UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA, CIO , as the exclusive representative of all
our employees in the appropriate unit described below.
WE WILL NOT in any other manner interfere with the efforts of
the above-named union to bargain collectively on behalf of the
employees in the unit described below.
WE WILL upon request bargain collectively with the above-
named union as the exclusive representative of all our em-
ployees in the unit described below with respect to rates of pay,
wages, hours of employment, or other terms 'or conditions of em-
including the subject of a pension plan or program that
is not already referred to in, or covered by, the terms of an exist-
ing collective bargaining agreement.
WE WILL upon request furnish the above-named union with such
statistical and other information as will substantiate our position
in bargaining with the union.
The bargaining unit is :
All hourly rated production and maintenance employees at
our West Hartford, Connecticut, plant, excluding office em-
ployees, count-station clerks, timekeepers, cafeteria employ-
ees, medical employees, temporary employees, watchmen,
guards, executives, foremen, assistant foremen, and other su-
pervisors as defined in the Act.
THE JACOBS MANUFACTURING COMPANY,
Employer.
By ------------- ----------------------------
( Representative) (Title)
Dated --------------------
. This notice must remain posted for 60 days from the date hereof,.
and must not be altered, defaced, or covered by any other. material.
1236 DECISIONS OF,NATIONAL LABOR RELATIONS BOARD
Intermediate Report and Recommended, Order
Mr. Joseph Lepie, for. the General Counsel.
Mr. Walfrid G. Lundborg, of Hartford, Conn.; for the Respondent.
Messrs. Harold B. Roitman, of Boston, Mass., Stig Lindholt.z and James Mullen,
of Hartford, Conn., for the Union;
STATEMENT OF THE CASE
Upon a charge duly filed by Local 379, United Automobile, Aircraft and Agri-
cultural Implement Workers of America, CIO, herein called the Union, the
General Counsel of the National Labor Relations Board,' by the Regional Di-
rector for the First Region (Boston,- Massachsetts),' issued a complaint dated
April 10, 1950, against The Jacobs Manufacturing Company, herein called the
Respondent or Company, alleging that Respondent had engaged in and was
engaging in. unfair labor practices affecting commerce within the meaning of
Section 8 (a) '(1) and (5) and Section 2 (6) and (7) of the National Labor
Relations Act as amended, 61 Stat. 136, herein called the Act:'
With respect to the, unfair labor :practices the complaint alleged in substance
that the Respondent on or about July 15, 1949, and at all times thereafter refused
to bargain, collectively with the Union.
Respondent duly filed an answer admitting certain allegations of the com-
plaint but specifically denying the commission of unfair labor practices.
. Pursuant to notice, a hearing was held on.May 1 and 2,.1950, at .Hartford,
Connecticut, before the undersigned Trial Examiner. The General Counsel, the
Respondent, and the Union were represented by counsel. All parties participated
in the hearing and were afforded full opportunity to be heard, to examine and
`cross- examine witnesses, and to introduce evidence bearing upon the issues. At
-the conclusion of the hearing the General Counsel and the 'counsel for the
;Union argued orally upon the record. Briefs have been received from council
for Respondent and, counsel for the Union which have been considered.
Upon the entire record in the case and -from his observation of witnesses, the
undersigned makes the following:
FINDINGS OF FACT
I. BUSINESS OF,THE RESPONDENT
The Jacobs Manufacturing Company, a Connecticut corporation, is engaged
in the production, sale, and distribution of drill chucks and related products at
its plant in West Hartford, Connecticut. During the 12-month period ending
May 1, 1950, a representative period, in excess of $100,000 worth of raw materials
(principally steel) were shipped to Respondent's West Hartford plant from
points and places outside of Connecticut. During the same period Respondent's
sales exceeded $100,000, of which in excess of 50 percent represents chucks sold
and shipped from the West Hartford plant to points outside of Connecticut.
Respondent admits and the undersigned finds that Respondent is engaged in
commerce within the cleaning of the.Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 379, United Automobile, Aircraft and Agricultural Implement Workers
of America, CIO, is a labor organization within the meaning of Section 2 (5) of
the Act.
' Unless otherwise stated, or indicated by the context, references to the General Counsel
'are, to his. representatives at the phearing ;- references to the Board are to the National
tabor Relations Boaid:
THE JACOBS MANUFACTURING COMPANY 1237
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The appropriate unit
All hourly rated production and maintenance employees of Respondent em
ployed at its West Hartford plant, exclusive of executives, foremen, assistant
foremen, watchmen and guards, office employees, count-station clerks, time-
keepers, cafeteria employees, medical employees, temporary employees, employees
with authority to hire, promote, discharge, or discipline, and all supervisors as
defined in Section 2 (11) of the Act, constitute, and at all times material herein
constituted, a unit appropriate for the purposes of collective bargaining within
the meaning of the Act. . .
2. Representation by the Union of a majority in the.appropriate unit
It was stipulated at the hearing that since on or about July 15, 1948, and
thereafter there has been in effect a checkoff system whereby sums have been
checked off the employees' pay on behalf of the Union and that a majority of
the employees have authorized such a checkoff. Also Respondent's answer ad-
mits the allegation of the complaint that at all times since July 15, 1948, the
Union has been the representative, for the purposes of collective bargaining, of
a majority of the employees Involved herein. I find, as, admitted by the Re-
spondent, that the Union at all times material herein was and now is the ex-.
elusive representative of the employees in the appropriate unit for the purposes_
of collective bargaining within the meaning of the Act.
3. The refusal to bargain ; sequence bf events..
The Union was first recognized by the Company in 1926 and collective bar-
gaining agreements between the Union and Respondent have -.been in effect
since 1936.
On or about July 15, 1948, Respondent and the Union signed an agreement
effective "for the period of two years from the date hereof and "thereafter shall
be automatically renewed from year to year unless . . ." At the time of
the negotiations culminating in this.agreement the Union' and Respondent also
agreed upon certain modifications of an existing Group Insurance Program. The
modifications agreed upon concerned increased benefits and increased contribu-
tions. The Insurance Program requires joint contributions` (contributions by
participants and a further payment on the part of the Respondent). The In-
surance Program is described in a brochure under the Respondent's name and
does not indicate union approval thereof. Furthermore; the collective bargain-
ing agreement, signed on or about July 15, 1948, is silent with respect to insurance.
After July 15, 1948 (the approximate date is, not revealed In 'the record), the
Company via a posted notice "made a unilateral change in the amount of money'
paid to dependents upon death of an employee." Article XIX, section 5 of the'
agreement, signed on or about July 15, 1948, provides, inter -alia:
After the expiration of one year from the date hereof either'party may
request a meeting after 15-days written notice, the purpose 'of which shall
be to discuss.. the wage rates of the. employees covered by this; agreement.
By letter of June 1, 1949, Stig Lindholtz, president of -the- Union, requested that
Respondent "discuss the issue of wages in conformance with Section 5 of Article
1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
19 of the 1948 agreement." Respondent answered this request by telling Lind-
holtz that he should notify the Company after July 15.'
Anticipating that the Union would request reopening on wage rates, Respond-
ent's officials (Toppin, chairman of the board of directors, Louis Stoner, presi-
dent, Arthur Stoner, vice president, Thomas A. Tully, personnel manager, and
Walfrid Lundborg, attorney)' held a conference in May or-June 1949 and con-
sidered the "business situation at that time as it affected our company and
concluded that there could be no further increase in wage rates, without affect-
ing the cost of the product."
By letter dated July 15, 1949, Respondent was advised by the Union,
In accordance with Section 5 of Article XIX of the 1948 agreement the
Union is hereby requesting a meeting for the purpose of discussing wage
rates of the employees covered by this agreement.
By letter dated July 25, 1949, Respondent was advised by the Union,
Below are listed the wage demands of Local 379 UAW-CIO
1. An increase of 100 per hour for all employees covered by the agree-
ment between the parties.
2. The installation of a retirement plan which would supplant the plan
now in effect.
3. Full payment by the company of the insurance coverage now in effect.
On July 28, 1949, officials of Respondent and the Union met and conferred.
Respondent was represented by Walfrid Lundborg, attorney ; Albert Englund,
factory manager, vice president, and a director ; and by Thomas A. Tully,
personnel manager. The Union was represented by Stig Lindholtz, presi-
dent, and a negotiating committee consisting of Messrs. Mullen, Kaminski,
Madagan, and Festa. At this meeting Lindholtz "read the demands" of
the Union (.stated above). Lundborg advised the union representatives that
the Company had given considerable thought to the question of changing wages
in anticipation of a request by the Union, that there were possibilities of further
layoffs,` that the Company was manufacturing more chucks than it was receiving
orders for, that if the Company continued to manufacture more chucks than
it was receiving orders for it would have to lay off additional people, that
any further increase in wage rates would involve an increase in the price of
the product to the customers, that the Company in its best judgment did not
think it. could go ahead with an increase in the price of its product, that any
wage increase would have to come out of future earnings, that the Company
saw no possible change in conditions for the next several months which would
indicate an ability to enter into further negotiations to change the wage rates,
that at that time it was impossible for the Company to make any form of a
Wage increase; and that as far as the wage increase was concerned, the answer
was "zero." Lindholtz requested proof that the Company was in no financial
position to pay wage increases and asked the Company to furnish information
on "incoming and outgoing orders of the last year" and asked "to be shown
the books and to be given the opportunity of exploring the books to prove to
myself and prove to the people in the plant that the Company was not" able
2 The transcript contains a possible inference that prior to June 1 Respondent was
advised that "The Union was going to avail itself of the right to reopen on wage rates."
However, the undersigned does not deem it necessary 'to determine whether in fact the
Company was so advised prior to June 1.
8 Lundborg has represented Respondent for several years and has frequently participated
in negotiations with the Union.
4 Employments decreased from approximately 450 In July 1948 to approximately 275
In July 1949.
THE JACOBS MANUFACTURING COMPANY 1239
to increase wages. Union representatives were told that the matter of increas-
ing wage rates of employees was the business judgment of the Company and
that as far as showing any books, it was "definitely out."
Concerning pensions and insurance, union representatives were told that
the Company believed that an insurance program should be one of joint con-
tributions by the employees and the Company and that they were meeting under
the provisions of the contract to discuss a modification of wage rates and not
for anything else and that pensions and insurance were not negotiable under
the contract and would not be discussed.'
Lindholtz asked for a further meeting and was told that no useful purpose
would be had in holding further meetings "if we were going to discuss identically
the same things" ; that the "Company's position had been given to the Union
and that is all there would be to it." However, it was finally agreed that any
subsequent meetings would take place after the plant shut down for vacations
A few days later Tully, personnel manager, asked Lindholtz if the Union
would be willing to meet on August 23. A meeting was arranged for that date.
On August 23, 1949, the same representatives who conferred on July 28 again
assembled. Lindholtz repeated the union demands (stated above herein) and
asked for "some sort of an offer in regard to wages." The union representatives
were advised "that to the Company's knowledge business conditions had not
changed in any way so as to cause them to change their opinion on increasing
wage rates" and that on that basis the Company "reaffirmed their opinion and
statement to you that an increase in wage rates was not warranted." Lindholtz
again requested that "information be furnished to them [the Union] through
company records and books, that they [the Company] were not in any position
to pay any sort of a wage increase" and Lundborg stated "absolutely no." Union
representatives were also told again that pensions and insurance were not nego-
tiable and would not be discussed at this time.` Lindholtz asked for another
meeting on the Union's "demands" and Lundborg stated that no useful purpose
would be had in holding further meetings "if we were going to discuss identically
the same things," but if "we [the Union] had anything to add, or to contribute
to, a future meeting , why it would be well to know what those things were."
When Lindholtz accused Respondent's representatives of attempting to break
off negotiations, Lundborg replied, "We [the Respondent] are not going to get
caught with an unfair labor practice and, of course, we will meet again."
On August 24, 1949, Lindholtz wrote a letter to the State Board of Mediation
and Arbitration informing them of the dispute. On September 9 br 10, 1949,
union representatives conferred with an official of the State Board of Mediation
and Arbitration and with a Federal conciliator.
By letter dated August 29, 1949, addressed to Tully, the Union requested "a
meeting to discuss the wage rates of the employees covered by this agreement"
and stated "we cannot believe it is the intention of the Company to refuse to
bargain with the Union, as you so expressly stated at the meeting of August 23,
1949."
E In its brief Respondent states : "The union was also advised that any discussion
relating to retirement and insurance would be held independent of and not in conjunction
with discussions of a general wage increase under the wage reopening clause." Lindholtz
denied that such a statement was made. On the basis of the entire record the undersigned
credits this denial and finds that such statement was not made.
Shortly thereafter the plant shut down during the vacation period.
No formalized plan for retirement was presented or discussed . Respondent forestalled
Its presentment of any such plan by refusing to discuss the matter.
1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By letter dated August 30 , 1949, Respondent , through Tully , advised the Union: .
In response to your letter of August 29, we believe that there is no basis
for bargaining on existing wage rates under present conditions as fully ex-'
plained at our last meeting.
It was apparent at that meeting that we had fully discussed this matter.,
Unless you have something new and different to offer we see'no reason for a
further meeting.
Our answer must be, that there will be no change in existing wage rates.
On August 30, 1949, Union Representatives Lindholtz and Mullen conferred with
Englund and Tully. Lindholtz asked . for a continuance of negotiations and
stated that the Union had several things to offer "in .,regards to our-reasons for
wanting these wage increases and pensions and insurance" and repeated the
Union's position as taken at the meetings on July 28 and on August 23. Englund
stated that the Company 's position was the same and that they . [ the Company]
were not going to give anything, and. again took the position that they [the,
Company] were not going to talk about pensions and insurance . When Lind-
holtz asked for a meeting with "the full committee" he was told;,"Well, we don't,
know. You have our letter . that we sent you earlier in the day." Lindholtz.
then asked , "Well, are you going to meet or aren 't you , going to meet ?" And was
told by Tully " they weren 't going to give any specific answer whether they,
would meet or not" and "if you think you're going to get . an Unfair Labor charge
against us , you're 'crazy."
On August 30,..1949, Lindholtz wrote Tully a letter stating :
The Union repeats its request for another meeting to continue negotiations.
The,.Union has' a great many arguments "to- offer both on wages and the
workers' -,security.
If the Co. persists . in, its .refusal to -meet with the Union the Union can
only draw the conclusion that you have broken off negotiations and -are re-
fusing to bargain.
On or'about August 31 , 1949; -Respondent mailed to its employees a letter read-
ing as follows :
To All Employees:
We have held two meetings with-your representatives of the Negotiating,
Committee on the matter of increasing .wage-rates . In both meetings we
informed your representatives .that we are unable to increase - labor costs
by a wage increase . Pensions , insurance, and other issues involving. money
are not subject to negotiations at this time.
You should know that incoming orders for our regular line of chucks are
off substantially from the first of the year . The.trend has been ; steadily
downward since January 1 . Vacation shutdowns throughout the Country
may have a bearing at this time . Low production increases, our. costs.
Many expenses (such as taxes , insurance, etc.,) cannot be reduced.
On the low priced line of chucks business continues to hold up-well.
Lower pricing of all manufactured products accounts to some , extent for
this. Faced with this demand for lower prices on reduced volume of bus!-
-ness, we must cut our costs rather than increase them if we are to continue
to secure business and maintain our present rate of employment.
We are unable to predict what the future will bring . We hope for some
improvement in orders for the balance of the year. We hope that new prod-
ucts, being developed as rapidly as possible , and the efficient production of,
THE JACOBS MANUFACTURING COMPANY 1241
our present ones, will keep this plant busy. This certainly cannot be done if
we are to be faced with higher labor costs.
These are the facts which concern you, your welfare, and the interest of the
Company your continuous employment and its operations. We take this',
opportunity to inform you officially of plant conditions.
By letter dated September 2, 1949, Respondent advised the Union as follows :
As we have advised you, pensions are not a matter of discussion or negotia-
tion within the meaning of our contract which provided for discussion at this
time of wage rates only.
We believe that we have exhausted all arguments and that you are unable
to present anything new or different on that which you have previously
mentioned during. our meetings.
If' you have such new and different thoughts please communicate them in
writing to us so that we may answer them by letter or in a meeting as
requested by you. If, however, the thoughts so expressed . are not new or
different, there will be no occasion for a meeting.
Upon receipt of the letter dated September 2, 1949, Lindholtz telephoned Tully
and told'him that the Union did not want to negotiate or discuss things by way of
mail and again requested a meeting where the full committee should be present.
Tully stated, "Well, you have our letter."
On September 12, 1949, Lindholz filed a grievance with Respondent and under
"Nature of Grievance on the form stated : .
NATURE OF GRIEVANCE: (Describe fully) (Grievance processed under
Art. IV & Art. XII of the 48 agreement) .8
The Union, and I as an employee, state that there is a difference of opinion
in regards to the meaning and intent of Section 5 of Article XIX, of the' 1948
agreement between the parties. The union insists that insurance & pensions
are a proper subject for negotiations at this time. The management states
that they are not. The Union requests that this dispute be processed
through the grievance procedure & finally to arbitration.
By. letter dated September 15, 1949, Respondent advised Lindholtz :
We are obliged to return the grievance form dated September 12, dealing
with,, as you put it, "meaning and. intent" of Section V of Article XIX.
You were informed in' a negotiating meeting of July 28, and it was repeated
at our meeting of August 23, that pensions and insurance are not a matter for
discussion in connection with wage rates.
As you failed to comply with Section II of Article IV the matter is not
considered a grievance in accordance with the terms of our agreement.
8 Article IV is entitled Grievance Procedure and provides a three step producer (foreman,
personnel manager , and factory manager ) for the adjustment of differences "concerning
the interpretation or application of any provision of this agreement with reference to"
rates of pay, wages, hours of employment, and' conditions of employment. Section 2
thereof states : "Any grievance not presented for disposition through the grievance
procedure described herein within ten working days of the occurrence of the condition
-giving rise to the grievance shall not thereafter be considered a grievance under this
agreement unless a reason satisfactory to the Company in explanation of the failure to
present the grievance within such time is given."
Article XII Is entitled Arbitration and provides that in the event there arises "a dispute
.or difference of opinion . . . as to the meaning and interpretation of any provision
hereof . . . which dispute or difference arose during the processing of a grievance under
the grievance procedure , either party may request that the question of interpretation on
,which such difference of opinion exists be referred to arbitration in accordance with" an
outlined procedure.
' 1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Following receipt of the letter of September 15, 1949, Union Representatives
Lindholtz and Mullen met with Company Representatives Tully and Englund.
Respondent's representatives "took the position that this was not a grievance
because the Union had failed to act within the ten-day period of filing a. grievance,
and furthermore, that it was merely an attempt by the Union to reopen negotia-
tions on the matter of pensions and insurance." Lindholtz stated the Union
"didn't like the Company taking advantage of a technicality within the ten-day
period of filing a grievance" and contended that pensions and insurance were
"negotiable" and that the grievance came under the terms of the contract.
By letter dated September 21, 1949, Respondent advised the Union :
In our meeting yesterday you indicated that the Company was taking
advantage of a technicality in the contract by using Section 2 of Article IV
in denying your grievance of September 12, regarding interpretation of
Article XIX, Section 5.
In your position as president of. the Union and your long experience in
handling grievances, you are fully aware of the importance of Section 2,
Article IV. In the interest of good relations between the parties, it is impor-
tant that all matters dealing with differences of opinion be disposed of
promptly. Handled otherwise would result in a constant source of irritation
with pending differences not settled to the satisfaction of one or the other.
The matter, therefore, is not a grievance as explained to you in, our meet-
ing and also as covered in my letter of September 12th.
On September 21, 1949, Lindholtz filed a second grievance and on the form under
Nature of Grievance stated:
Union charges that company is violating all sections of, Article IV and
Article XII of the 1948 Agreement between the parties in refusing to allow
union to process grievance through the above named sections or answering.
and following the same articles.
By letter dated September 27, 1949, Respondent advised the Union :
It is apparent that you are unwilling or do not care to recognize and
observe the provisions of the agreement between the company and the union
as intended between the parties.
Originally (September 12) you presented a grievance dealing with "the
meaning and intent" of Section 5, Article XIX. In our letter of September
15, you were advised that this was not a grievance and reasons therefore.
We again refer you to our letter of September 15.
In our meeting of September 20, with Mr. Englund, and I present, you
charged that the company was taking advantage of a technicality in denying
the grievance under Section 2, Article IV. We again explained fully the
importance of this Section in the interest of good labor relations in our
letter of September 21.
Since your grievance was denied, you now try to reopen the same matter
by submitting another so-called grievance charging violation of all Sections
of Articles IV and XII.
Your aims are apparent. Our position remains the same. There is no
grievance.
Lindholtz replied to the letter of September 27, 1949, by indicating on the
grievance form dated September 21, 1949, that Respondent's disposition of the
grievance was not satisfactory and stating thereon :
We maintain our original position as stated above. Please proceed with
the above grievance in accordance. with the contract. Please answer the
THE JACOBS MANUFACTURING COMPANY 1243
above grievance. The union in accordance with the contract hereby requests
a meeting to discuss the grievance.
Union and company representatives met with respect to this second grievance.
However, the meeting was very short and consisted of a statement by company
representatives (Tully and Englund)' that "in their opinion there was no
grievance" and a statement by Lindholtz that he "thought it was."
After the procedure stated above with respect to the second grievance Lind-
holtz requested assistance from the International of the Union and thereafter
a letter reading as follows was sent to the Respondent :
INTERNATIONAL UNION, UNITED AUTOMOBILE-AIRCRAFT-AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA (UAW-CIO)
OCTOBER 3, 1949.
Mr. ALBERT ENGLAND,
Jacobs,Maniufacturing Co.,
Jacobs Road, Elmwood, Conn.
DEAR MR. ENGLAND :
I have been asked by Regional Director, Mr. Charles H. Kerrigan, to
assist Local Union 379 in wage negotiations at your plant.
Will you please advise me when it would be convenient for you to meet
with the Union Committee to continue negotiations which I am informed
were opened in keeping with Article XIX, Section 5 of the contract?
Anticipating an early reply, I am
Very sincerely yours,
MERLIN D. BISHOP,
International Representative,,
Box 422, Avon, Connecticut.
By letter dated October 4, 1949, Respondent , through Lundborg, advised Bishop
as follows :
DEAR MR. BISHOP:
Your letter of October 3, 1949 to Mr. Englund of the Jacobs Manu-
facturing Company has been referred to me because of my participation in,
negotiations with the Union Committee.
Conferences have been held with the Union Committee at which they were
advised that the Company is not prepared to make any change in wage
rats in view of the reduced operations and general business conditions.
Your Union Committee apparently has not advised you that there is no
occasion for further meetings to discuss this matter in view of the Company's
decision not to change wage rates. It is also possible that they have failed
to advise you that, having received such decision from the Company after
several meetings , they considered it appropriate to. file a charge of an
unfair labor practice against the Company for failing to have further meet-
ings to continue to advise them that there is no occasion in the opinion of
the Company to grant a wage increase under existing conditions.
By letter dated October 13, 1949, Englund advised Lindholtz :
In accordance with your request a meeting was held Tuesday in con-
nection with the attached grievance forms. ' You presented no new facts
or conditions which would cause us to alter our position as covered in the
letters of September 15, September 21 and September 27.
1244 DECISIONS ;OF NATIONAL LABOR RELATIONS BOARD
By, letter dated October 27 , 1949, Louis Stoner, president of the Company,
advised Lindholtz :
DEAR MR. LINDHOLTZ :
I have had the opportunity to review carefully the grievance forms sub-
mitted by you and the ensuing correspondence dealing with the subjects
of insurance and pensions . Management 's position is reiterated in the
paragraphs that follow.
In negotiation meetings with you and your committee you were informed
that insurance and pensions were not negotiable at this time , as our con-
tract provides for negotiations at the end of one year on the matter of wage
rates only.
Through the medium of the grievance procedure you have tried to estab-
lish a grievance , and when one avenue didn 't work you tried to establish
another . In many letters you were informed that no grievance existed.
Your last step was to advise us that James Gallagher was to be your
representative in arbitration . There is no dispute pending that ,can be sub-
mitted to arbitration and we see ' no occasion to designate any person as
a representative of Management to meet with Mr. Gallagher on an arbitra-
tion panel. -
On or about December 19, 1949, Respondent sent the following letter to^each
individual worker in the plant:
As you know , the late spring of this year saw a sharp drop in our bust-
ness. Our customers had a lot of Jacobs chucks on their shelves., To a
certain extent these chucks have moved out ,and in the last couple of months
business has begun to look better . While. we can 't see very far into next
year , 1950 shows signs of improvement from current levels.
- The new Lathe Collet , Chuck has been very well received by the trade,
and before next year we hope to have two new types of chucks in produc-
tion that should create more jobs and greater : security for Jacobs people.
Speaking of security, Social Security benefits and pensions have been
very much in the news the last few months . We have studied various "types
of pension plans, including what Ford and Big Steel have done. In the
coming. year , we will present a plan to the Negotiating Committee , as' your
representative one which we think will meet with everyone 's approval.
In closing we want to thank you for the very fine job that has been done
=during 1949 and to extend to you our very best wishes for Christmas and
the New Year:' •
Sincerely , L. B. STONER,
President , the Jacobs Manufacturing Company.
Although the Company normally addresses Christmas greetings to its em-
ployees, the above letter was the first communication to the workers notifying
"employees of a possible proposal or idea that they [ the Company ] were think-
ing about" or setting'forth "expectations" for the future.
On or about March 6, 1950, Lindholtz sent Respondent a letter reading as
follows :
DEAR MR . TuLLY : '
As an individual policy holder and a president of Local 379 UAW-CIO,
I hereby request the following information in regards to the Aetna Insur-
ance coverage now in effect in the plant.
1. Total amount paid in premiums by the employees . ( last year)
THE -JACOBS MANUFACTURING COMPANY,' 1245
' '2. Total'amount collected in benefits by the employees. (last year-)
3. Money returned, if any, to the Jacobs Mfg. Co. in the form of premiums.
(last year)
By letter dated March 14, 1950, Tully replied to Lindholtz :
I fail to understand your purpose in requesting the information referred
to in your letter of March 6, 1950. There is no issue pending relative to
the existing insurance plan of. the company and the contribution of the
employees. As you are well aware, this matter is outside the scope of
the existing contract. Inasmuch as this information is not readily avail-
able, we see no occasion to obtain it for you personally or in your capacity
as president of the Union.
After receiving the letter of March 14, 1950, mentioned .above, Lindholtz ad-
dressed a reply to Tully also ' dated March` 14, 1950, reading as follows :
DEAR Mn. TuLLY :
I have your answer to my request for certain information in regard to
the Aetna Insurance coverage.
I did not request your understanding of my motives, I merely requested
certain information. '
This information is. certainly one which I should be furnished informa-
tion on for the following reasons :
1. As an individual I am paying for insurance.
2. The Jacobs Mfg. Co. gets the information they request. '
3. The matter of insurance coverage has been a negotiable matter for the
last ten years.
4. The members of Local 379 UAW-CIO are paying hundreds of dollars
a week to the Aetna Insurance Co. & they have a right to this information.
Therefore, I must insist that you furnish me with the requested informa-
tion.
By letter dated March 31, 1950, Lindholtz wrote Respondent :
In order to facilitate negotiations and to expedite settlement of the Unions
request for Social Security and Pensions for your employees in, the bargain-
ing unit, the following information is essential to objective consideration of
this subject and we would appreciate receiving said information at your
earliest convenience :
1. A-table set up as follows:
Year of births -------------------------------- ----------------
(Workers hire in year)
-------------------------------------------------------
1949 1948 1947 1946 1945
1924------------------------------------= ------------------------------
1923-------------------------------------------------------------------
1922, etc--------------------------------------- -----------------
2. A list of all existing benefit plans now in effect and the amount paid by
the Company and amount paid by the employees on each plan (group, life,
health, hospitalization, etc.).
3. We also need the following information :
Number of workers who are single
Number of workers with husband or wife (no children) under 19 years of age.
Number with children under 19.
In connection with item #2 we would appreciate receiving a copy of each.
plan in effect. - V
1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During April 1950 at a meeting on matters not involved herein Englund in-
formed Lindholtz that the Company would furnish the information concerning
insurance coverage. The Company has secured some of the information from
Aetna Life Insurance Company, but as of the date of the hearing herein had
not had an opportunity to assemble the complete data desired.
Lindholtz testified that the information requested in his letter of March 31,
1950, "had a bearing on this coming year's negotiations" and that he (Lindholtz)
was prepared to make a "request shortly for the Company to meet." As of the
date of the hearing no such request had been made and no meeting had been held.
Conclusions as to Bargaining
The Act only requires that the parties shall not refuse to bargain collectively.
The Board and the Courts early and necessarily interpreted this into an affirma-
tive duty to bargain in good faith. Good faith indicates a disposition or a
willingness to reach a mutually satisfactory agreement together with an attitude
of reasonableness on both sides to attain that end. Neither side may enter nego-
tiations with his mind hermetically sealed against entering into contractual
relations nor be capriciously unreasonable throughout the negotiations in order
to prevent an agreement . The question of good faith is a question of fact to be
determined from an examination of all the elements in the negotiations, no one
of which is necessarily determinative. The undersigned believes that the ele-
ments to be analyzed herein may for convenience be treated under the following
titles: (1) Pension and Insurance; (2) Request for and Refusal to Furnish
Books and Records; (3) Refusal to Process Grievances; (4) Refusal to Schedule
Conferences; (5) Letters to Employees; and (6) The 1950 request for informa-
tion e
Pension and Insurance
As noted above , at the time of the negotiations culminating in the agreement
of July 15, 1948, the Union and Respondent also agreed upon certain modifica-
tions of an existing insurance program. However, the brochure describing this
program does not indicate union approval thereof. At the time of the 1948
negotiations , there was no discussion or negotiations with respect to pensions.
The collective bargaining agreement signed on or about July 15, 1948 , does not
contain provisions specifically referring to pensions or insurance.
The agreement as executed by the parties provides for reopening "to discuss
the wage rates" and the Union at an appropriate time requested such reopening
and listed for discussion wage - increases , a retirement plan, and a revision of
the insurance program . Nevertheless , Respondent refused to consider pensions
and insurance , contending that they were not "negotiable under the contract"
and "not subject to negotiations at this time."
Had Respondent flatly refused to discuss these matters there could be no ques-
tion that it had violated Section 8 ( a) (1) and ( 5). However , the facts herein
indicate that the problem posed in this case is-Did the contract clearly bargain
away the right the Union would otherwise have had to participate in and bargain .
with respect to pensions and insurance ? Respondent contends that the phrase
"wage rates" in the reopening clause does not include pensions and insurance
and that, therefore , these matters were not proper subjects for bargaining during
the time of the events involved herein. Whether the term "wage rate" includes
8 The unilateral change in benefits and contributions under the Group Insurance
'Program is not specifically treated herein since the date of such action is not disclosed
my the record and in view of the 6-month limitation of Section 10 (b) of the Act.
THE JACOBS MANUFACTURING COMPANY 1247
or excludes pensions and insurance is subject to argument ( see Inland Steel
Company, 77 NLRB 1, enfd. 170 F. 2d 247, cert. denied, 336 U. S. 960; Abbott
Worsted Mills, Inc., 36 NLRB 545, enfd. 127 F. 2d 438; Weyerhauser. Timber
Company, 87 NLRB 672, and Tide Water Associated Oil Company, 85 NLRB 1096).
If the term "wage rate" includes pensions and insurance , these matters were
clearly appropriate subjects for collective bargaining under the agreement. On
the other hand , if pensions and insurance are not included in "wage rates," it
appears they are matters relating to "wages, hours, and other terms and condi-
tions of employment" which have not been reduced to writing, and the obligation
remains on both parties to bargain continuously with respect to such unwritten
terms. (Tide Water Associated Oil Company, 85 NLRB 1096.) Furthermore,
the Board has stated that it is reluctant to deprive employees of any rights guar-
anteed them by the Act in the absence of a clear and unmistakable showing of
a waiver of such rights (General Controls Company, 88 NLRB 1341) and the
undersigned cannot predicate a specific waiver of the right to bargain collectively
concerning pensions and insurance upon the July 15, 1948, agreement , in view
of the ambiguousness of the phrase " wage rate" and the omission from the
contract of any term or conditions concerning pensions and insurance.
In its brief Respondent states that "the Union never requested the Company
during this period of time to meet and discuss a retirement plan"and an insurance
program in a conference separate and apart from a meeting called in accord-
ance with Sec. 5 of Article XIX of the Contract." The record reveals that no
such specific request was made at the meetings of July 28 and August 23. How-
ever, the Union at these meetings and subsequently bent every effort to secure
bona fide negotiations concerning these subjects and did not limit itself to a will-
ingness to discuss them only in conjunction with a discussion concerning wage
increases. Rather the record reflects a willingness and desire by the Union to
discuss these matters either in conjunction with discussions concerning wage
increases or independent of such discussions (note the grievance procedure at-
tempted) and that Respondent, not the Union, erected obstacles.
Refusal to Furnish Books and Records
In reply to the Union's demands for a wage increase, Respondent maintained
adamantly that it was financially unable to grant any wage increase but it re-
fused to produce any information which would substantiate its position or which
would enable the Union to discuss intelligently Respondent's contention or enable
it adequately to represent the employees. The information probably available
to the Union-workers recently discharged and whether Respondent was accu-
mulating a reserve supply of checks-was inadequate and otherwise did not
sustain Respondent's contention. Thus, in the absence of information as to the
amounts of sales and orders and of capitalization and of the rate and amounts
of dividends, the Union was not in a position to determine whether or not to
press, revise, or eliminate its demand for a wage increase. Respondent itself,
in anticipation of the Union's demand, recognized the necessity for careful con-
sideration of its business situation and its officials having the necessary infor-
mation conferred with regard thereto prior to the initiaton of the negotations
herein. Under all the circumstances, it appears that the request for proof that
the Company was in no financial condition to pay wage increases and for "in-
coming and outgoing orders of the last year" and for an opportunity to explore
company books "to prove to myself and to the people in the plant that the
company was not" able to increase wages was a reasonable demand relating
generally and directly to the contract negotiations and the information requested
1248 DECISIONS'OF NATIONAL LABOR RELATIONS BOARD
was necessary to enable the Union to bargain intelligently with respect to wage
increases ; without "such information, the 'Union would be seriously hampered.
From. all the foregoing and the entire. record,, the undersigned. believes and
finds that the information requested of.the Respondent was needed by, the-Union
if it was to exercise effectively its legitimate function of representing. the. em-
ployees in negotiations. The Respondent was under a duty to furnish this in-
formation "in a manner not so burdensome or time consuming as to impede the
process of bargaining ." This it adamantly refused to do.,. Such a failure and
refusal has several times been cited. among.the pertinent facts onwhich a find-
ing of refusal to bargain was based. (See Pioneer Pearl Button Company; 1
NLRB 837, 842; Singer Manufacturing Company, 24 NLRB '444, 467 ; Manville
Jenckes Corporation, 30 NLRB 382,397,400; General Controls Company, 88 NLRB
1341; Yawman. & Erbe Manufacturing Company; 89 NLRB 881; The B. F. Good-
rich Company, 89 NLRB 1151; and The.Electric Auto Light Company, 89 NLRB
1192.)
Refusal to Process Grievances
The contract provides for adjustment of grievances at.three successive stages
culminating in arbitration. On September 12, 1949 (more than 10 working
days after the first conference but within 10 days of Respondent's letter of Sep-
tember 2, 1949, stating that "pensions are not a matter of discussion within. the
meaning of our contract which provided for a discussion at this time of wage
rates only"), the Union filed a grievance concerning the meaning and interpreta-
tion of the phrase "wage rate" appearing in section 5, Article XIX of the con-
tract. Respondent rejected and refused to process this grievance, repeating its
assertion that "pensions and insurance are not a matter for discussion in con-
nection with wage rates," and alleging a failure to comply with the procedure
established for handling grievances by failing to process the grievance "within
10 working days of the occurrence of the conditions giving rise to the grievance."
Respondent refused to waive the 10-day requirement of the. agreement and on
September 21, 1949, the Union filed a second grievance charging that Respondent
was violating the agreement by not processing the grievance previously filed.
Respondent advised the Union that it considered the second grievance as "an
attempt to reopen the same matter by submitting another so-called grievance"
and stated there is no grievance.
The undersigned has previously noted that in view of the decided cases, the
term "wage rate" as used in the agreement is at least ambiguous. It also appears
to the undersigned that an argument can be made that the grievance was filed
timely since it was filed within 10 working days of Respondent's letter of Septem-
ber 2, 1949. In any event, if Respondent in fact had believed that the contract
clause relieved it from an obligation to bargain with respect to pensions and
insurance, the merits of its position could have 'been established through the
grievance and arbitration provision of the contract which the Union here sought
to invoke. Nevertheless, Respondent maintained its assertion that these matters
we:•e not subjects for bargaining 30 and foreclosed the use of the grievance pro-
ccdure. The undersigned on the basis of the entire record finds that Respondent's
treatment of the grievances here manifested less than wholehearted cooperation
"The Board has held that grievances are proper subjects of collective bargaining.
In Cities Service Oil Company, 25 NLRB 36, 44, the Board held that, " since grievances
concern 'conditions of work' within the meaning of Section 9 (a) of the Act, they are
proper subjects for collective bargaining. It follows that Section 7 guarantees employees
the right to bargain collectively concerning grievances." See also Vanette Hosiery Mills,
80 NLRB 1116; Ohio Calcium Company, 34 NLRB 917, enforced as modified on other
grounds, 133 F. 2d 721 (C. A. 6) ; Los Angeles Spring Bed Company, 24 NLRB 528. .
THE JACOBS MANUFACTURING COMPANY - 1249
with the Union and is another indication of lack of good faith in bargaining on
the part of "Respondent.
Refusal to Schedule Conferences .
As previously noted, herein, on July 28, 1949, Respondent after asserting its
inability to.grant.wage increases and refusing to discuss pensions and insurance,
indicated a reluctance, to meeting further- with respect to these subjects. Never-
theless, the parties did thereafter meet on- August 23, 1949, at which time Re-
spondent in response to a request for "some sort of an offer in regard to.wages"
reaffirmed its position that an increase in wage rates was not warranted, refused
to furnish company books and records to substantiate its.position, again refused
to discuss pensions and insurance, and declined a request for further meetings
unless the Union in advance thereof . presented. something, new and different. In
response to subsequent requests for further meetings, Respondent orally and in
writing reiterated its refusal to meet unless the Union presented something new
and different.
Where an existing contract is open for modification pursuant to its own
terms, an employer has an affirmative duty to bargain in good faith concerning
proposed modification and a deadlock over a wage issue does not excuse Re-
spondent from resuming negotiations where the Union indicates a willingness
to reopen negotiations unconditionally. ,
Although a genuine impasse may under certain circumstances justify a refusal
to meet further unless advance information is supplied indicating that the
further meeting will not be a repetition of the prior meeting, the facts herein
do not indicate that such an impasse was reached. (See Bradley Washfountain
Co., 89 NLRB 1662.) Rather, they establish that in response to the Union's
request for a revision of wages and other terms and conditions of employment,
Respondent with respect 'to wage increases did nothing more than take refuge
in its assertion of poor financial condition, refusing either to prove or permit
independent verification of its statement and with respect to the other terms
and conditions of employment sought refuge in its assertion that these
matters were not subject to discussion under the agreement and foreclosed
the use of the agreement to establish the merit of its position. So far as further
meetings were concerned, Respondent took the view that the burden was upon
the Union to continue to submit proposals until ultimately one which Respondent
would be willing to discuss would be hit upon. The Union was under no such
obligation. Rather, it was incumbent upon Respondent in these circumstances
to meet upon request and bargain in good faith, without which agreement by
compromise, which the Act seeks to encourage, could not be expected.
Letters to Employees
On August 31, 1949, Respondent sent a letter to its employees informing them
that the Union was seeking increased wage rates but that Respondent was
unable to grant any wage increase. The letter also indicated that Respondent
would not negotiate concerning pensions and insurance. The letter stated that
there was a falling off of incoming orders for regular chucks and that because
of lower pricing of all' manufactured products, Respondent's "low priced line of
chucks business continues to hold up well." The letter concluded :
We are unable to predict what the future will bring. We hope for some
improvement in orders for the balance of the year. We hope that new
products being developed as rapidly as possible, and the efficient production
of our present ones, will keep this plant busy. This certainly cannot be
done if we are to be faced with higher labor costs.
953841-52-vol. 94-80
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
These are facts which concern you, your welfare, and the interest of the
Company in your continuous employment and its operations. We take
this opportunity to inform you officially of plant conditions.
On or about December 19, 1949, Respondent sent another letter to its em-
ployees concerning its orders and predicting an improvement in business in 1950.
This letter stated further that Respondent had studied various types of'pension
plans and in the coming year would present a plan to the Union-one which
we think will meet with everyone's approval.
The timing of the release of these letters is significant. It is noted that they
were sent after Respondent had refused to bargain concerning pensions and
insurance, had refused to prove or permit independent verification of its state-
ments concerning its financial condition and after Respondent had refused
requests for negotiations and at a time when the Union was bending every
effort -to secure bona fide negotiations concerning subjects appropriate for bar-
gaining. Furthermore, the letter of August 31 appears to be couched in language
reasonably calculated to induce or coerce employees to renounce their bargaining
representative and the letter of December 19 appears to be an indirect attempt
to solicit the employees to prevail upon the Union not to press its pending
demands at least until the opening of negotiations in 1950.
Under these circumstances the undersigned considers these letters evidence
of an attempt by Respondent-to undermine the Union's prestige and finds that
these are further evidence of Respondent's failure and refusal to bargain col-
lectively.
The 1950 Request for Information
On March 6, 1950, the Union requested specific information concerning insur-
ance coverage. Respondent at first rejected,this request but thereafter, in April
and. May 1950, advised the Union that efforts were being made to secure the
information and it would be supplied shortly after the close of the hearing
involving this proceeding.
For reasons previously mentioned with respect to Respondent's refusal to
permit examination of its records the undersigned believes and finds that the
Insurance information requested by the Union was and is needed by it in the
exercise of its legitimate function of representing employees, and that a with-
holding of this type of information constitutes a violation of the Act.
Summary
In view of the foregoing, and upon a consideration of the record as a whole,
I find that by rigidly maintaining, on and after July 28, 1949, that pensions and
insurance. were not subject to collective bargaining, by refusing and failing
to furnish the Union information requested, by refusing to negotiate with the
Union concerning grievances in which the Union protested Respondent's inter-
pretation of the contract so as to exclude from bargaining pensions and insurance,
by refusing to meet and confer with the Union upon request, and by attempting
to undermine the Union through direct appeals to its employees, the Respondent
evidenced an intention to avoid its duty to bargain in good faith. Accordingly,
I find that on July 28, 1949, and at all times thereafter, the Respondent refused
to bargain collectively with the Union, and thereby interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in Section 7
of the Act, in violation of Section 8 (a) (5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in Section III, above, occurring in
connection with the operations of Respondent described in Section I, above,
THE JACOBS MANUFACTURING COMPANY 1251
lave a close, intimate, and substantial relation to trade, traffic, and ' commerce
among the several States, and tend to lead to labor disputes, burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that Respondent, The Jacobs Manufacturing Company,
has engaged in unfair labor practices within the meaning of Section 8 (a) (1)
and (5) of the Act, it will be recommended that it cease and desist therefrom
and take certain affirmative action in order to effectuate the policies of the Act.
It has been found that on July 28, 1949, and thereafter, Respondent has refused
to bargain collectively with Local 379, United Automobile, Aircraft and Agri-
cultural Implement Workers of America, CIO, as the exclusive representative
of its employees in an appropriate unit ; that while in some instances Respondent
went through the motions of collective bargaining, it nevertheless throughout
the period involved herein thwarted every, effort by the Union to reach an agree-
ment by rigidly maintaining that pensions and insurance plans were not sub-
jects for collective bargaining, by failing and refusing, upon request, to sub-
stantiate its assertions that its financial condition precluded wage increases,
by refusing to meet and confer with the Union, and by attempting to undermine
the Union through direct appeals to its employees. In view of Respondent's lack
of good faith as demonstrated therefrom and the possibility that a general order
to bargain may' be interpreted either as a condonation of Respondent's conduct
or as a confession of the Board's inability to require and enforce the remedying
of the effects of such conduct, it is believed-that such general order will be in-
effective in remedying the unfair labor practices found. Accordingly, it will
recommend the Respondent be required, upon request, to bargain collectively
with the Union, as the exclusive representative of its employees in the appropriate
unit, with respect to wage rate increases, pensions, and insurance, and be re-
quired to furnish the Union the information which it previously requested and
such further information as will enable the Union to evaluate Respondent's
position and to bargain intelligently thereon.
As the complaint does not allege unfair labor practices other than refusing
to bargain and since the evidence does not reveal a danger of the commission
of unfair labor practices other than refusing to bargain collectively to be antici-
pated from Respondent's conduct in the past, the undersigned will not recommend
that Respondent cease and desist from the commission of any other unfair labor
practices. However, it will be recommended that the Respondent cease and
desist from the unfair labor practices found and from in any other manner inter-
fering with the efforts'of the Union to bargain collectively with it.
Upon the basis of the foregoing findings of fact and the entire record in this
proceeding, the undersigned makes the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of the
Act.
2. All hourly rated production and maintenance employees of Respondent
employed at its West Hartford plant, exclusive of executives, foremen, assistant
foremen, watchmen and guards, office employees, count-station clerks, time-
keepers, cafeteria employees, medical employees, temporary employees, em-
ployees with authority to hire, promote, discharge, or discipline, and all super-
visors as defined in Section 2 (11) of the Act, constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section 9 (b) of
the Act.
1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. At all times since July 15, 1948, the Union has been the exclusive representa-
tive of the employees in the aforesaid unit for the purposes of collective bar-
gaining within the meaning of Section 9 (a) of the Act.
4. By failing and refusing, on or about July 28, 1949, and at all times there-
after, to bargain collectively with the Union as the exclusive representative of
the employees in the appropriate unit, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (5) of
the Act.
5. By said acts Respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act and has
engaged and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
NEIL R. CULLEN, G. CULLEN, AND WARD J . THOMPSON, CO-PARTNERS
D/B/A CULLEN-THOMPSON MOTOR COMPANY and INTERNATIONAL
ASSOCIATION OF MACHINISTS, DISTRICT LODGE 86. Cabe No. 30-
CA-130. Juice 18,1951
Decision and Order
On March 26, 1951, Trial Examiner Howard Myers issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices, and recommending that they cease. and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter the Respondents
filed exceptions to the Intermediate Report.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report,' the Respondents' exceptions, and the entire record in
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [Members Houston, Reynolds,
and Styles].
2 The Intermediate Report contains certain erroneous statements of fact, none of which
affects the Trial Examiner's ultimate conclusions or our concurrence therein. Accord-
ingly, we make the following corrections :
(1) Contrary to the Trial Examiner's finding, the Respondents make no sales in
California. -
The Respondents question the Trial Examiner's finding that they are engaged in the
"distribution" of automobiles as implying that they are wholesale distributors, and not
retail dealers.
Clarifying the Trial Examiner's finding, we find that the Respondents are in fact retail
dealers in new automobiles, and not wholesale distributors.
(2) The Trial Examiner found that on September 7, and during the balance of September
1950, there were 33 persons in the unit found appropriate. However, 1 employee in the
unit ceased to be employed on September 29, 1950.
94 NLRB No. 194.