The Orion Tool, Die and Machine Co.

National Labor Relations Board - Board Decisions

Mar 29, 1972

195 N.L.R.B. 1080 (N.L.R.B. 1972)

1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Orion Tool, Die and Machine Company and Inter-
national Association of Tool Craftsmen , Local #1,
N.F.I.U. Cases 38-CA-1002 and 38-CA-1138
March 29, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On October 12, 1971, Trial Examiner Herbert Silber-
man issued his Decision in the above-entitled proceed-
ing, finding that Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, Respondent
filed exceptions to the Trial Examiner's Decision and
a supporting brief, and the General Counsel filed a brief
in support of the Trial Examiner's Decision and a reply
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the Trial Examiner's
Decision , the exceptions and briefs. and the entire
record, and hereby adopts the Trial Examiner' s rulings,
findings , conclusions, and recommendations, as
modified below.
The Trial Examiner properly found that Respond-
ent, inter alia, violated Section 8(a)(5) of the Act by
negotiating with the Union in bad faith without any
intention of reaching agreement during the 14 sessions
held in the period July 27, 1970, to March 18, 1971.
However, for reasons given below, we disagree with his
additional finding that the parties at their penultimate
session on March 10, 1971, came to an understanding
as to all of the terms to be incorporated in a collective-
bargaining contract. We therefore do not adopt the
Trial Examiner's recommendation that the Board go
beyond the usual remedy of ordering Respondent to
bargain in good faith with the Union.
Following the 12th session held on March 2, 1971,
the Union prepared a draft reflecting all the clauses
which had been agreed on as well as Respondent's
position on a number of issues, particularly the union
shop and checkoff, that were still in dispute.
A memo prepared by the Union contains the follow-
ing description of the next session which was held on
March 10.
The Union agreed to drop its demand for a union
shop and a checkoff if the Company would agree to the
Union's terms as to (1) holidays, (2) insurance, (3)
safety equipment, (4) a wage increase in lieu of the 1970
Christmas bonus which the Company had unilaterally
eliminated , (5) a 15-cent-per-hour premium instead of
195 NLRB No. 194
the current 10-cent rate, and (6) maintenance of the
current vacation pay formula instead of the reduced
vacation benefits proposed by the Company. The Com-
pany replied that it would not agree to (4) and (5) but
made no reference to the remaining 4 items.' "The
Union [then] suggested that the Company write up a
complete proposal that they [the Union] could present
to the ... [membership] based upon what they [the
Company] had agreed to settle for in a contract. The
Union said that the Company had changed their mind
so much it was impossible to tell what they [the Com-
pany] would agree to without a complete proposal.
[Company Vice President] Kelly said everything was
negotiable until they come up with an agreement
wasn't it?2 Shaw answered that they [the Union] ex-
pected the Company to remain consistent in what they
had agreed to in order to negotiate in good faith. [Presi-
dent] Carl Lange said he thought he could have a com-
plete proposal by ... [March] 15th or 16th."'
In view of the foregoing, we cannot agree with the
Trial Examiner that there was on March 10 a complete
meeting of the minds as to all of the terms to be incor-
porated in a final contract. Thus, the Union's own sum-
mary of the March 10 session reveals that the parties
had not clearly resolved all their differences. In addi-
tion, the testimony of the Union's chief negotiator and
the shop steward as to the Union's continued adherence
to its demand for the union shop and the checkoff
leaves little doubt that the parties were still at logger-
heads with respect to these important issues. Accord-
ingly, as Respondent and the Union did not on March
10 or any other occasion reach agreement as to all of
the provisions of a collective-bargaining contract,' we
shall modify the recommended remedy by limiting it to
the requirement that Respondent, upon request, bar-
gain in good faith with the Union, and, if an under-
standing is reached, embody it in a signed contract. In
this connection, we shall provide that the Union's cer-
tification shall extend one year from the commence-
ment of negotiations.
' Although the Trial Examiner indicates that the Union unconditionally
offered to give up its demand for a union shop and a checkoff, two witnesses
whom he credited testified as follows: According to Shop Steward John
Zimmer, the Union asserted that it would withdraw these demands if Re-
spondent would agree to (4),(5),(6), and a 6-percent general wage increase.
According to Raymond Shaw, the principal union negotiator , the Union
never did agree to drop the union shop and the checkoff because Respondent
did not make concessions as to (4),(5), and (6).
' Shaw answered in the affirmative when the Trial Examiner asked him
if the following statement was correct: "It was understood that none of these
individual settlements [agreements as to the various items] would reach the
fruition of a contract until they're all put together in one instrument and
signed."
' As stated in the Trial Examiner's Decision, Lange did not carry out this
promise and asked for another meeting which took place on March 18.
H. K. Porter Company, Inc. v. N.L.R.B., 397 U.S. 99.
ORDER
ORION TOOL, DIE AND MACHINE CO. 1081
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner as modified below, and hereby or-
ders that Respondent , The Orion Tool, Die and Ma-
chine Company, Orion, Illinois, its officers, agents,
successors, and assigns, shall take the action set forth
in the Trial Examiner's recommended Order, as herein
modified:
1. Delete paragraph 2(a) and footnote 38 and reletter
or renumber the rest of the Order accordingly.
2. Add the following sentence to new paragraph 2(a):
"The certification year shall extend 1 year from the
date such new bargaining negotiations begin."
3. Substitute the attached notice marked "Appendix
C," for Trial Examiner's Appendix C.
APPENDIX C
NOTICE To EMPLOIEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees with loss of
benefits and privileges such as the use of company
tools on their free time and the privilege of pur-
chasing tools for their personal use through the
company facilities because they had designated In-
ternational Association of Tool Craftsmen, Local
# 1, N.F.I.U., as their collective-bargaining repre-
sentative or because they have engaged in self-
organizational activities.
WE WILL NOT eliminate benefits and privileges
which our employees have enjoyed as a condition
of their employment or engage in other reprisals
against our employees, because they designated
International Association of Tool Craftsmen, Lo-
cal # 1, N.F.I.U., as their collective-bargaining
representative or because they have engaged in
self-organizational activities; and WE WILL NOT
change any terms and conditions of employment
without first notifying the representative and giv-
ing it an opportunity to engage in collective bar-
gaining with respect to such proposed change.
WE WILL, upon request, bargain collectively in
good faith with the Union for the unit described
herein with respect to rates of pay, wages, hours
of work, and other conditions of employment,
and, if an understanding is reached, embody such
understanding in a signed agreement . The Union's
certification shall extend 1 year from the date such
new bargaining negotiations begin . The appropri-
ate unit is:
All tool and die makers, machinists and
their apprentices, and other employees who
are engaged in the manufacture, altering,
modifying, or developing of tools, dies,
gauges, jigs, fixtures, molds, or special ma-
chinery within the operation of the Em-
ployer's Orion, Illinois, plant, but excluding
all supervisors within the meaning of the Act,
clerical, and all other employees.
WE WILL make whole each employee-member
of the negotiating committee of the Union for
earnings lost while attending past bargaining ses-
sions with interest thereon at the rate of 6 percent
per annum.
WE WILL pay to our employees who, in accord-
ance with our practices prior to 1970, would have
received a Christmas bonus in 1970 an amount
equal to the bonus which they would have received
but for our unlawful failure to pay the same,
together with interest thereon at the rate of 6 per-
cent per annum.
WE WILL reinstate the working conditions and
benefits which were eliminated after the election of
June 30, 1970.
WE WILL, upon application, offer immediate
and full reinstatement to their former or substan-
tially equivalent positions, if jobs are available,
without prejudice to their seniority or other rights
and privileges, to all employees who were on strike
on or after June 2, 1971, and who have not already
been reinstated, dismissing , if necessary, any per-
sons hired by us on or after June 2, 1971. If insuffi-
cient jobs are available for these employees, they
shall be placed on a preferential hiring list and
they will be offered employment before any other
persons are hired.
WE WILL NOT in any other manner interfere
with, restrain or coerce employees in the exercise
of their right to self-organization, to form, join, or
assist International Association of Tool Crafts-
men, Local # 1, N.F.I.U., or any other labor orga-
nization, to bargain collectively through repre-
sentatives of their own choosing, to engage in
other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
THE ORION TOOL
DIE AND MACHINE
COMPANY
(Employer)
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dated By
(Representative) (Title)
WE WILL notify immediately the above-mentioned in-
dividuals, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Savings Center Tower, 10th Floor, 411 Hamil-
ton Boulevard, Peoria, Illinois 61602, Telephone 309-
673-9061, Extension 282.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Trial Examiner: Upon charges filed
on September 8, 1970, March 25, 1971, by the above-named
Union, a complaint, dated April 27, 1971, was issued in these
consolidated cases alleging that the above-named Company
has engaged in and is engaging in conduct constituting unfair
labor practices within the meaning of Section 8(a)(a) and (5)
of the National Labor Relations Act, as amended.' In sub-
stance, the consolidated complaint, as amended at the hear-
ing, alleges that, following an election conducted by the
Board on June 30, 1970, the Union was certified on July 9,
1970, as the exclusive collective-bargaining representative of
Respondent's employees in a described unit; that, since June
30, 1970, despite many negotiating sessions , the Company
has refused to bargain collectively in good faith with the
Union with respect to the employees in the certified unit; and
that, in reprisal against its employees for their self-organiza-
tional activities, Respondent discontinued various employ-
ment benefits thereby further interfering with, restraining,
and coercing its employees in the exercise of their statutory
rights. A hearing in these proceedings was held in Davenport,
Iowa, on June 29 and 30, 1971. Subsequent to the hearing,
General Counsel and Respondent filed briefs which have been
carefully considered.
Upon the entire record in this case, and from my observa-
tion of the witnesses and their demeanor, I make the follow-
ing:
' Based on a charge filed by the Union on September 8, 1970, a complaint
dated October 27, 1970, was issued in Case 38-CA-1002. Respondent filed
an answer in said proceeding which was served on November 3, 1970. Prior
to the scheduled date of hearing , the parties entered into a settlement
agreement which was approved on behalf of the Board on January 8, 1971.
However, on April 27, 1971, an order was issued withdrawing the approval
and a further order was issued consolidating the above-numbered cases for
hearing.
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Respondent , an Illinois corporation , is engaged in the busi-
ness of building tools, dies, jigs , fixtures , and special machines
at its plant located in Orion, Illinois. During the 12 months
preceding the issuance of the complaint , which period is rep-
resentative of Respondent 's business operations , the Com-
pany sold and shipped from its Orion plant finished products
valued in excess of $50 ,000 to customers located outside the
State of Illinois ; and purchased and received goods and
material valued in excess of $50,000 which were shipped to
its Orion plant directly from States other than the State of
Illinois. Respondent admits , and I find, that it is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Company was organized in 1953 by Carl Lange, who
is its president and principal stockholder. It began operations
with only 2 employees, but has since expanded so that it
presently employs a complement of about 23 persons. How-
ever, the Company's capitalization is still modest, its net
worth being under $80,000. Since the commencement of its
operations, possibly because the Company had not outgrown
the informality that frequently characterizes small business
operations, the employees have been the beneficiaries of vari-
ous indulgences from their Employer. Among these were: (a)
free coffee, rolls, donuts, and soda pop; (b) permission to
make personal use of company equipment and tools on the
employees' free time and permission to borrow company
tools and equipment to use at their homes; (c) permission to
purchase tools and similar equipment from the Company's
suppliers and to charge the purchases to the Company
thereby obtaining the benefit of the Company's discount, and
to repay the Company for such purchases on a weekly basis
without any interest charge; (d) a bench in the premises for
the employees to use when eating lunch; (e) permission for
employees who ate lunch on the lawn or close to the shop not
to punch their timecards for the period that they were at
lunch; and (f) payment to the employees of their weekly
earnings before noon on Fridays so that they had the oppor-
tunity to cash their checks and to do shopping during their
lunch period on payday.
The employee benefits described above were discontinued
by the Company with the advent of the Union.' Following the
filing of a representation petition with the Board, an election
was conducted on June 30, 1970, whereat a majority of the
Company's employees voted for the Union.' The very next
day the free coffee, rolls, donuts, and soda pop for employees
I The initial charge herein was filed by the Union on September 8, 1970,
and a complaint thereon was issued on October 27, 1970. A settlement
agreement, which has since been withdrawn, was entered into effective
January 8, 1971. Most of the discontinued employee benefits have been
restored in accordance with the terms of the settlement agreement.
' The Union on July 9, 1970, was certified as the statutory representative
of the employees in the following described unit:
All tool and die makers, machinists and their apprentices, and other
employees who are engaged in the manufacture, altering , modifying or
developing of tools, dies, gauges, jigs , fixtures, molds or special machin-
ery within the operation of the Employer's Orion, Illinois plant, but
excluding all supervisors within the meaning of the Act, clerical, and
all other employees.
ORION TOOL, DIE AND MACHINE CO. 1083
were discontinued. Also, after the election, employees were
required to punch their timecards whenever they left the
plant for whatever reason, including to eat lunch on the lawn
or at a place proximate to the plant. Further, employees were
denied the privilege of making use of company equipment, of
borrowing company equipment and tools, and of purchasing
goods from company suppliers. Also, following the election,
the employees were paid late on Friday afternoons instead of
before lunchtime.'
Employee James Parr credibly testified that within a few
days after the June 30 election he asked Shop Foreman Wil-
liam McNalley why free rolls and pop had been discontinued
and why the bench the employees had been using in the
basement was removed. McNalley responded "[T]hat there
were no more good jobs at Orion since the union was voted
in." Similarly, employee John L. Zimmer testified without
contradiction that about the same time he was discussing the
results of the election with McNalley who remarked that
"[H]e wouldn't be a bit suprised if the company discontinued
the practice of purchasing tools for its employees or the use
of the tools," which is what occurred.5
' Most of the foregoing privileges were restored after the Company en-
tered into the settlement agreement of January 8, 1971. Pursuant to the
agreement the Company was required to notify the employees that:
WE WILL reinstate the following working conditions and benefits
which were unilaterally removed:
1. The Company practice of providing an electric coffee pot for the
use of the employees, and free sweet rolls.
2. The Company practice of paying employees before the 12 o'clock
noon lunch period every Friday.
WE WILL NOT threaten employees with the loss of the following
privileges which the employees of this Company have enjoyed for many
years:
1. The use of Company tools and equipment for the private use of
employees in their individual homes.
2. The privilege of employees, being able to make purchases through
Company authorization of tools, equipment, and other goods for their
private use from wholesalers whom the Company patronizes; and the
attendant privilege of employees being allowed to repay the Company
for these purchases over a period of time without interest or carrying
charges.
WE WILL NOT, in the future, make unilateral changes in established
plant conditions or privileges without first notifying International
Union, International Association of Tool Craftsmen, NFIU and giving
the Union an opportunity to bargain and negotiate with us in good faith.
Carl Lange testified that the free items for employees were discontinued
"for economic reasons ." He did not explain what economic consideration
prevailed on July 1, 1970, to warrant abandonment of the practice that had
been followed for the 18 years since the Company was organized. Lange
acknowledged, however, that the results of the election "had a definite
effect" on his decision to withdraw the free items and to remove the bench
from the basement , which he also claimed was located in an unsafe position.
On the other hand , Lange testified that there was never any change in the
Company's policy of permitting employees to charge purchases of tools and
similar items to the Company and to repay the Company by weekly payroll
deductions. He also denied that there had been any change in the Com-
pany 's policy of permitting employees to borrow company tools for personal
use. Lange's explanation for the change in the Company's practice of paying
the employees by noon on Friday is vague as to time and details. He testified
that the payroll checks are prepared by accountants in the neighboring
community of Moline, and that at some unspecified time the accountants
obtained new equipment which automatically printed the checks com-
pletely, including signature . Because the checks were presigned, the ac-
countants were reluctant to mail them. The checks were picked up each
week by himself or a driver. Frequently, they were delayed in their trips to
and from the accountants' office and thus the checks were not on hand for
delivery to the employees at noon. Significantly, Lange was unable to testify
when the accountants began preparing presigned checks. Furthermore, in
connection with the January 1971 settlement agreement he was able to
arrange with the accountants to mail the checks to the Company so that
thereafter the Company resumed delivery of paychecks to the employees by
noon on Fridays. I do not credit Lange's testimony to the extent that it is
A. The Bargaining Sessions
Following the Union's certification as representative of Re-
spondent's employees, there were 14 meetings between the
parties which took place between July 27, 1970, and March
18, 1971. No contract was reached as a result of the negotia-
tions. It is charged that the Respondent has failed to bargain
with the Union in good faith.
The principal spokesman for the Union at the bargaining
sessions was its International President Raymond K. Shaw.
At the first meeting held on July 27, Shaw requested that the
Company restore its practice of providing the employees with
free coffee and rolls and that the Company replace the bench
which the employees had been using during their lunch
period. Lange responded that the employees had shown him
by voting for the union that they didn't wish to receive these
benefits so he removed them.' Despite the Union's certifica-
tion, McNalley questioned the Union's right to represent
employees in the certified unit who did not individually desire
union representation. At this meeting, also, the Union pre-
sented the Company with its contract proposals in the form
of a draft of an agreement.' The draft, which contains 17
articles many of which are subdivided into sections, was used
as the frame of reference during most of the succeeding bar-
gaining sessions.
Following the initial meeting, sessions were held on July 28
and August 6 and 11. Prior to the August I 1 meeting, agree-
ment was reached as to various provisions of G.C. 2-B, as
modified during the course of the negotiations.' Appendix A
shows the provisions of G.C.2-B, as modified, that were ac-
inconsistent with my findings above.
Only three witnesses, who constituted the Company's negotiating team,
were called to testify on behalf of Respondent. They were: Carl Lange, its
president and principal stockholder; George Kelly, its vice president; and
William McNalley, the shop foreman. There are no significant conflicts
between the testimony of Kelly and McNalley and the testimony of the
witnesses called by General Counsel. Respondent's principal witness was
Lange, who also was questioned as an adverse witness by General Counsel.
Although Lange's versions of various significant events differ from those of
General Counsel's witnesses , the largest part of his testimony does not
directly contradict the testimony of General Counsel' s witnesses . Much of
the hearing was concerned with evidence relating to the collective-bargain-
ing negotiations between the representatives of the Union and the Com-
pany. Lange attended 13 of the 14 bargaining sessions. He kept no notes as
to what transpired. His recollection of the meetings was uncertain and
imprecise. With respect to what occurred at the meetings and also with
respect to certain other relevant events, his testimony was vague and general
even where he should have been able to give more exact and detailed
information. Regardless of whether Lange's apparently poor memory is a
genuine characteristic or a convenient refuge against the disclosure of infor-
mation which might have proved embarrassing to the Company's cause in
this litigation, he impressed me as being an unreliable witness . For the most
part, where Lange's testimony conflicted with testimony of witnesses for
General Counsel, I have not credited Lange's version of the events.
Lange testified that while the subject of the discontinued employee
benefits might have been mentioned at the bargaining sessions, the Union
never asked that they should be restored. I do not credit this testimony.
This draft is marked in evidence as "General Counsel Exhibit 2-B." It
will be referred to herein as G.C. 2-B.
Prior to the August 11 meeting , the Union modified some of its propos-
als, in particular, article III, section 10, realting to supervisory personnel
performing unit work, and article XV, relating to job classifications and wage
rates. These proposed modifications were submitted to the Company at the
August 6 meeting . (They are marked in evidence as "General Counsel
Exhibit 2-E," herein referred to as G.C. 2-E.) The Union's initial job clas-
sifications and wage rates proposal merely stated that "The Company shall
maintain the same classifications and wage rates for all employees of the
Bargaining Unit until December 1, 1970. The Company and Union agree to
negotiate Wages and Classifications starting November 1, 1970." At the
July 28 session, the Company requested a full proposal on wage rates and
classifications. The Union submitted such proposal on August 6 as reflected
by G.C. 2-E.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cepted by the Company as of the beginning of the August 11,
1970, meeting . At the meeting that day, Respondent submit-
ted counterproposals regarding the subjects in disagreement
between the parties.' These counterproposals contain no im-
provement in any condition of employment . Despite the
Company's earlier request that the Union furnish a full
proposal on wage rates and classifications , the counter-
proposal to that article was:
Due to economic conditions the job classifications and
wage rates shall remain as is at present for a period of
1 year after agreement.
Somewhat inconsistently , at the hearing, Lange explained
that no improvements were offered on August 11 "[because
[the employees] have gotten all of these things in the past,"
although he did not deny that at the August 11 meeting he
informed the Union that the Company could not afford any
pay increases whatsoever.'0
Despite Lange's protestations at the August 11 meeting
that the Company could not afford any pay increases, em-
ployee Kenneth Witte as of August 15 was given a 30-cent
increase from $4 . 70 to $5 per hour. The Union was not in-
formed by the Company of this action.
Throughout the negotiations , Respondent refused to ac-
cede to a checkoff provision because of the clerical burden
which its implementation would place upon the Company. At
the hearing , it was developed that the Compan y's payroll is
prepared by an independent accounting firm who sometime
prior to June 1970 computerized its operations. A printout
shows that among other deductions which are automatically
handled by the computer are withholding tax, FICA, state
tax, insurance, and advances to employees . The printout form
has an unused column reading , "Union pension UN. Ap-
peal." Without changing the form this column could be used
for union dues deductions . Thus, it appears that the addi-
tional clerical work for implementing a checkoff provision
was minimal involving no more than providing the account-
ants only once with the figures relating to the employees' dues
deductions for entry in the computer memory bank . Further-
more, Lange testified that he never checked with the account-
ing firm to ascertain whether there would be any additional
charge if the Company were to deduct the union dues from
its employees ' earnings.
At the August 18 meeting , the Union gave the Company
a report showing the status of each section of the proposed
contract . This is reflected in Appendix A. Lange testified that
the report was correct and that thereafter during the negotia-
tions the parties discussed those subjects which were shown
on the report as being open . At the August 18 meeting, the
Union also submitted modifications with respect to the four
open sections of its overtime proposal."
The next meeting was held on August 25 after which bar-
gaining was suspended for several months. According to
doing work of unit employees. Lange testified that he in-
formed the Union that the Company could not accept the
Union's proposal and "[t]hat supervisory personnel would do
work at any time the company deemed fit or necessary. And
Mr. Shaw blew his stack. And he was going to call in a federal
mediator. The meeting ended."12
On September 8, 1970, the Union filed unfair labor practice
charges alleging that the Company had violated Section
8(a)(1), (3), and (5) of the Act. Based theron, a complaint in
Case 38-CA-1002 was issued on October 27, 1970, alleging
violations of Section 8(a)(1) and (5). The matter was tenta-
tively disposed of by a settlement agreement concluded on
January 8, 1971. There were no meetings between the parties
during the period that said unfair labor practice proceeding
was pending and unresolved.
During the bargaining hiatus, the Company took action in
further derogation of the Union's representative status. The
Company in the past regularly had paid its employees at
Christmastime a bonus equal to 1 percent of their earnings
during the first 11 months of the year. Such bonus was paid
in the years 1966, 1967, 1968, and 1969. However, the bonus
was not paid in 1970 and the Company did not notify the
Union of its decision to withhold the customary Christmas
bonus. According to Lange, "The reason I didn't pay it,
because there wasn't no money to pay it." In explanation
Lange testified that he "[d]idn't feel it was economically pos-
sible" to pay the bonus in 1970 because the Company's profits
were approximately $2,500, although the bonus, if it had been
paid to the employees, would have totaled only between $1,-
500 and $2,000." Furthermore, after negotiations were
resumed , the Company took the position that the 1970
Christmas bonus had not been paid "on account of the eco-
nomic situation," that there was nothing that could be done
about it, and that the Company did not wish to discuss the
subject as part of the negotiations.
After the settlement agreement had been executed, the
parties on January 27, 1971, met with a Federal mediator. At
the parties ' next bargaining session , which was held on Feb-
ruary 9, probably because of the mediator's suggestion, the
Company submitted to the Union a statement of its current
bargaining position , and the Union submitted to the Com-
pany modifications of clauses which it had previously
proposed." Appendix A shows the status of the negotiations
as of February 9 as reflected by the Company's statement of
position , G.C. 2-J . It reveals that the only changes between
the August 18 and the February 9 meetings were agreement
as to article III, section 3 (doubletime ), article IX, section 3
(holidays falling on Sunday), and article XI (probationary
employees)." The proposals made by the Company on Febru-
ary 9 for the most part merely repeated its previously ex-
pressed positions. It offered no significant concessions. How-
Lange, the meeting concluded acrimoniously following a dis-
cussion of article III, section 10, which relates to supervisors
The Company's counterproposals dated August 11, 1970, were intro-
duced in evidence as General Counsel Exhibit 2-F and will be referred to
herein as the 8-11 counterproposals . The 8 -11 counterproposals relate to
certain sections in 11 articles appearing in G.C. 2-B, as modified. Lange
testified that as to the other articles of G.C. 2-B, which were not referred
to in the 8-11 counterproposals, "I would imagine that they were tentatively
agreed on like Article I and 11."
10 As to article XIV, section 4, the 8-11 counterprosals state : "Vacation
pay shall be computed at 40 hours per week at time of vacation." This
proposal reflected the Company's then current practice . On February 9,
1971, the Company notified this proposal to make its terms less favorable
for the employees.
" These proposed modifications to article III were marked in evidence
as "G.C. 2-H."
" At this meeting , the Union submitted to the Company additional
modifications of its contract proposals which are marked in evidence as
"General Counsel Exhibit 2-I."
" General Counsel contends , and I agree, that Respondent completely
failed to establish that it was not "economically possible " to pay the Christ-
mas bonus in 1970. No evidence was introduced by Respondent in support
of this categorical assertion. Respondent did not show that sales had
dropped during 1970, it did not show that gross profit margins had nar-
rowed , it did not show that it had incurred any unus',al expenses or losses,
it did not show whether officers' earnings had been changed, etc. Further-
more, no excuse was even attempted as to why the Union was not informed
in advance that the bonus would not be paid.
" The Company 's statement is marked in evidence as "General Counsel
Exhibit 2-J" and the Union 's proposals are marked as "General Counsel
Exhibit 2-K."
" The Union had made concessions as to article III , section 3 , and article
IX, section 3, and the Company had made concessions as to article XI.
ORION TOOL, DIE AND MACHINE CO. 1085
ever, the Company introduced two new demands. First, it
asked for a new provision in article VIII (seniority) to the
effect that, in the event of layoff or recall, the Company shall
have the right to layoff or recall 20 percent of the complement
without regard to seniority. (Probably this term was intro-
duced to counterbalance the Union's demand for superseni-
ority for shop stewards and the committee chairman.) Sec-
ond, it proposed a modification of article XIV, section 4, to
provide that pay for each week of vacation shall be computed
at two times each employee's gross earnings for the year or
40 hours, whichever is less. The Company's existing practice
as reflected by its earlier proposal was that vacation pay shall
be computed at 40 hours per week.16
In its proposals of February 9, the Union offered:
1. To withdraw article III, section 9 (call back pay at
double-time rate);
2. To withdraw article VI (checkoff) if the Company
would agree to article V (union shop);
3. To modify article VIII, section 2 (Company shall give
notice of proposed layoffs), in order to meet substantially
the Company's proposal in this respect;
4. To modify article VIII, section 3(f) (when seniority
shall be broken), in order to meet substantially the Com-
pany's proposal;
5. To accept Company's proposal as to the number of
holidays (article IX, section 1); and
6. To compromise differences as to article XIV (vacation
and vacation pay).
The Union presented two significant demands as amend-
ments to Article XV:
1. A bonus equal to 1 percent of each employee's 1970
earnings (to compensate employees for the Christmas bonus
that was omitted in 1970); and
2. A 6-percent across-the-board increase."
There were two more meetings in February, on the 16th
and 24th. Appendix A shows the status of negotiations as of
the end of the February 24 session. As of this meeting the
Union had dropped its demand for superseniority and the
Company had withdrawn its demand for the right to lay off
or recall 20 percent of the complement without regard to
seniority." Furthermore, as of this meeting the Company had
agreed to a general wage increase of 6 percent. This was in
accord with the Company's practice in the past of giving a
general wage increase in the spring of each year . In 1970 the
raise also was 6 percent. Lange testified that the Company has
tried to increase employees' wages to keep abreast with the
rise in the cost of living "until recently, until the economy
changed." After the Union was certified, the Company
changed its policy of giving its employees an annual increase
in the spring but, according to Lange, "it wasn't because of
the union was in there.""
" At the February 9 meeting , it was suggested that an additional classifi-
cation, that of laborer, should be added to article XV and Lange testified he
might have suggested the rate of $2,50 for that classification.
" The Union also proposed to add a section 5 to article VIII (seniority)
to the effect that overtime work will be restricted while unit employees are
in layoff status and also relating to the time employees must report back to
work following layoff and other similar matters . The testimony does not
indiate that the Company objected to this proposal and the documentary
exhibits in this case show that with small modification it was agreed to by
March 10.
" I do not credit Lange's testimony that the Company did not agree to
drop its proposal that in case of layoff or recall the Company would have
the right to select 20 percent of the employees for layoff or recall the
Company would have the right to select 20 percent of the employees for
layoff or recall without regard to seniority.
19 Lange testified that except for the term of the contract, article XVII
(termination ) had been agreed on.
At the March 1 and 2 meetings agreement was reached on
section 6 of article III and sections 2 and 3 of article VIII.
Appendix A shows the status of negotiations as of the conclu-
sion of the March 2 meeting. Also, at those meetings, the
Union submitted modifications of its proposal regarding arti-
cle XV (job classifications and wage rates). General Counsel
Exhibit 2-N reflects the Union's proposal in regard to article
XV as modified by the Union on March 2. It contained six
sections as follows:
1. Classifications and minimum rates. (The Union's
March 2 proposal represents a reduction in the rates
from its original proposal which was made on August 6,
1970);
2. Wage rates for probationary employees;
3. Company shall notify Union of new hires and changes
in wage rates;
4. Night bonus of 25 cents ( in its August 6 proposal the
Union asked for a night bonus of 10 percent);
5.(a) Ten cents per hour increase effective December 1,
1970 (to compensate employees for the Christmas bonus
that was not paid in 1970); and (b) Effective March 1,
1971, a 6-percent increase; and
6. Same increases for apprentices.20
Following the March 2 meeting, the Union prepared a
draft of a contract reflecting all the clauses which had been
agreed on and the Company's position as to the remaining
clauses.21 According to Shaw, the Union's purpose for prepar-
ing the draft was to obtain the Company's verification of the
subjects that had been agreed on and also to have a single
instrument reflecting the Company's position on the whole
contract that could be shown to the employees. On March 4,
employee John Zimmer gave a copy of the draft to Lange
with the request that Lange study the instrument and advise
him whether it accurrately stated the Company's position. On
March 6 Lange returned the document and informed Zimmer
that it correctly reflected the Company's position. There is a
significant omission from the draft. It does not reflect the
6-percent general wage increase to which the Company had
agreed in February. This omission was an oversight, not a
change of position either on the part of the Union or of the
Company.22
'° In addition, the Union offered to accept the Company's current insur-
ance program modified only to provide dependent coverage and group life
insurance at the employees' expense and option.
Also, the Union modified its position regarding section 5 of article VIII
(call back after layoff) which it first proposed on February 9. This proposal
was accepted by the Company prior to March 10.
" This draft was marked in evidence as "General Counsel Exhibit 2-0."
Raymond Shaw, who was responsible for preparing the draft, was
unable to explain the omission. He testified that the "6 percent increase had
already been agreed to by the company. I don't know why it isn't in here
... " He further testified that at a meeting of the employees, which was held
on March 8, he informed the employees that there had been agreement on
a 6-percent general wage increase. Lange's testimony regarding the 6-per-
cent increase is uncertain and contradictory . He testified , in response to
different questions about whether the Company had agreed to the 6-percent
general wage increase , as follows:
I can't say we definitely agreed to it, no.
Close as I can recall, it tied in with seniority ... and just abort every-
thing that we were apart on.
It was one of the items that ... just never was agreed to.
It would be possible [that the Company would give the employees a
6-percent general increase ], if everything else was worked out. . . "
Yes. I would say tentatively it looked like we probably would agreed
to that [the 6-percent increase if other subjects were resolved].
I credit Shaw's testimony that the Company in February had agreed to a
6-percent general wage increase.
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The next meeting was held on March 10 . At this meeting
the Union sought to conclude the negotiations and offered to
accept the Company 's terms as to the following subjects:
Union shop
Checkoff
Insurance
Minimum wage rates for the designated job classification
Safety equipment
The Union was still seeking the following:
1. A wage increase (in addition to the 6-percent general
increase which had been agreed on) to compensate the
employees for the 1970 Christmas bonus that was not
paid;
2. A 15-cent-per-hour night premium instead of 10 cents
per hour which the Company was then paying; and
3. Vacation pay computed in accordance with the Com-
pany's current practice."
The above three items were the only subjects still un-
resolved when the March 10 meeting concluded. Before the
meeting adjourned, Shaw asked Lange to draft a proposed
contract which the Company would be prepared to accept so
that it could be submitted to the Union 's membership. Lange
agreed to do this and said that such instrument would be
ready by March 15 and16.
Lange testified that when the March 10 meeting had ended
he and the other management officials concluded that the
Union had given in on just about everything. Vice President
George Kelly, who in June found it difficult to remember
events that had occurred in April, testified that it "could have
been" that when he was questioned by a Board agent during
the investigatory phase of this case he told the agent that after
the March 10 meeting management decided that they were
going after the Union because the Union had showed signs of
weakness-in military terms, when somebody starts retreat-
ing, counterattack.
Lange did not draft a proposed contract as he had prom-
ised . Instead , on March 15 , he told Zimmer that he wanted
another meeting with the Union to "discuss some of the items
that we weren ' t exactly in agreement on." Lange's explana-
tion was : "We was getting down to a pretty final thing there,
and we wanted to discuss some of the items there that we
tentatively agreed on."
The parties next met on March 18. At this meeting, with-
out offering compensating concessions, and without giving
any explanation for its change in position, the Company
made the following proposals, which constituted effective
repudiation of agreements previously reached during the par-
ties' extended negotiations:
1. Elimination from the contract of any provision
relating to job classifications and wage rates so that the
Company would have the right to hire employees at any
wage it could and the right to deal with the employees
individually on all wage matters , including raises;
2. Elimination of seniority for all purposes except va-
cations; and
3. Overtime after 40 hours per week (instead of after
8 hours per day and for Saturday work which was the
Company's existing practice).
Before the March 18 meeting concluded, McNalley "said
that he felt that [the Union] didn't represent the employees.
[The Union] didn't represent a majority."24 The response to
" At the February 9 meeting, the Company proposed to compute vaca-
tion pay on the basis of 40 hours for each week of vacation or 2 percent of
each employee 's annual earnings, whichever was the lesser . The latter condi-
tion was a departure from the Company's past practice.
34 According to Shaw, from time to time throughout the negotiations,
McNalley argued that the employees did not need a union. Lange testified
this was that the Union was the certified collective-bargaining
representative and the Union would not discuss the subject
any further. The Company was accused of bargaining with no
intention of negotiating a contract and that it was dragging
out negotiations to get rid of the Union . The union represent-
atives stated that unfair labor practice charges would be filed.
The meeting then adjourned . There have been no further
bargaining sessions.
B. Supplementary Findings Relating to the Negotiations
The various drafts of the proposed contract contain a ter-
mination clause . The language of the clause had been agreed
to early during the negotiations , but the term of the contract
was left blank . Raymond Shaw testified that the Union had
proposed a contract for a term of 1 year , and there was not
much discussion about the Union 's proposal although the
Company did not specifically agree to it . 25 The Union also
suggested that the contract should be retroactive to March 1,
1971. However, the Company 's position was that the contract
should be effective as of the date it was signed.
Following the June 1970 election and also during the
course of the parties ' negotiations, the Company made vari-
ous changes in the conditions of employment of the em-
ployees in the certified unit without any prior notice to the
Union and without giving the Union an opportunity to bar-
gain about the changes. As described above , alomost immedi-
ately following the June 30, 1970, election the Company can-
celed certain employee privileges, which were later restored
when the settlement agreement was entered into in January
1971. In addition, as of August 15, 1970, the Company in-
creased Kenneth Witte 's wage rate without notice to the
Union, and despite the fact that its position during the
negotiations was that it could afford no increase . At the end
of the year 1970 the Company failed to pay to the employees
the Christmas bonus which had been paid regularly each year
beginning at least as early as 1966. In addition , the Company
in February 1971 inaugurated a second shift and established
a premium of 10 cents per hour for that shift . Here again the
Union was not advised or consulted regarding the establish-
ment of the additional shift or the premium which the em-
ployees working on the shift would be paid.26 Lastly, the
Company unilaterally increased the wages of two other em-
ployees. The rate for David Menke was increased by 25 cents
per hour from $4.50 to $4.75 during the week ending Febru-
ary 6, 1971, and the rate for Ronald Kaufmann was increased
by 50 cents per hour on April 3, 1971.
C. The Strike
On June 2, 1971, the Union called a strike against the
Company. Raymond Shaw testified that in February 1971 at
a meeting of the employees a motion was made and carried
to back the Union's contract demands by a strike if necessary.
The committee was authorized to use its judgment as to when
it should call a strike. On April 22, 1971, Shaw wrote to
that at the meetings McNalley questioned the Union 's right to bargain for
all the employees in the certified unit.
" When Lange was questioned as to whether the parties by February
1971 had agreed that the contract would be for a term of 1 year, Lange
testified , "No. I can't say that there was anything agreed on there that I can
recall, anyway. I don't say there wasn't. I don't say there was ." Lange further
testified that there was discussion of a I-year contract . "But as far as an
agreement , I'm sure there wasn't an agreement as far as I was concerned.
It was definitely discussed ." Lange further testified that he does not know
that the Company made any proposal regarding the term of the contract,
although "[W]e even talked about 5 years."
" Prior to 1971 there was only occasional nightwork and the Company
then paid no night-shift premium.
ORION TOOL, DIE AND MACHINE CO. 1087
Lange reminding him that in March Lange had agreed to
furnish the Union with a complete written proposal and re-
questing that such proposal be prepared in order that negotia-
tions can be pursued. On June 1 Shaw told the committee that
he had written to the Company seeking to obtain the proposal
from the Company which had been promised in March but
that there had been no response . He also informed the com-
mittee that the Union had filed an unfair labor practice
charge . Shaw recommended that a strike should be called and
the committee concurred . It was agreed to call the strike the
next morning . General Counsel alleges that the strike is an
unfair labor practice strike caused and prolonged by the Re-
spondent 's unfair labor practices . I agree and so find.
After the strike commenced Lange was contacted by a
Federal mediator concerning the situation . Lange testified
that he told the mediator that he was not interested in meet-
ing with the Union so long as the strike continued."
Conclusions
Apart from the violations of Section 8(a)(1) which derive
from Respondent's failure and refusal to bargain collectively
in good faith with the Union, the complaint alleges that the
elimination of various employee benefits and privileges by
Respondent independently violated Section 8(a)(1) of the
Act. General Counsel in his brief correctly characterizes such
action as "blatant retaliation" by Respondent against its em-
ployees for their union activity. The timing of such action
immediately following the June 30 election without any fore-
warning and without any adequate explanation being offered
either contemporaneously or at the hearing, alone established
its vengeful purpose. The reasonable inference from such
timing is bolstered by Lange's statement at the very first
bargaining session that the employees had shown him by their
voting for the Union that they did not wish to receive these
benefits so he removed them. Additionally, the Company's
failure to pay its employees the customary Christmas bonus
in 1970, I find, was a further act of spiteful retaliation in
violation of Section 8(a)(1). Where there is no clear admission
in the record by the Company that the bonus had been elimi-
nated for an unlawful reason, the explanation of economic
necessity offered by Respondent was so inadequately devel-
oped by supporting proof that I find that the attempted justifi-
cation was a sham. The Christmas bonus equal to 1 percent
of each employee's prior 11 months ' earnings was a substan-
tial incident of each employee 's wages. To discontinue it, as
the Company did, without explanation to the employees,
without demonstrable justification, and without notice to the
employees ' statutory representative was more than a mere
technical violation of Respondent 's collective -bargaining ob-
ligations-it was a severe economic blow calculated to im-
press upon the employees the deleterious consequences of
their self-organizational activities. As of Christmas 1970
negotiations had broken off wihtout the Company having
offered a single economic concession. Withholding the
Christmas bonus was a forceful demonstration that the em-
ployees would not gain but would only lose from union repre-
sentation.
I further find that the statements , described above , by Shop
Foreman McNalley to employees Parr and Zimmer shortly
after the June 30 election were threats of company retribution
against the employees for having selected the Union as their
representative and constituted additional violations of Sec-
tion 8(a)(1) of the Act.
As to the alleged violations of Section 8(a)(5), the com-
plaint avers , and I find, not only that the Respondent nego-
tiated with the Union in bad faith and with no intention of
reaching an agreement , but also that certain conduct by Re-
spondent , apart from its evidentiary value in assessing the
Company's overall bad faith in its negotiations , constitutes
independent violations of Respondent's statutory collective-
bargaining obligations.
First, there is the unilateral conduct, as follows: (1) Im-
mediately following the election , the Company eliminated
certain employee benefits and privileges , described above; (2)
during the period that the negotiations were in progress,
Respondent discontinued its long -established practice of pay-
ing a Christmas bonus equal to 1 percent of each employee's
respective earnings for the preceding 11 months ; (3) in Febru-
ary 1971 , the Company inaugurated a second shift and estab-
lished a 10-cent -per-hour wage premium for the employees
assigned to that shift ; and (4) Respondent gave three em-
ployees increases in their wage rates . 28 These actions were
taken without giving the Union advance notice or an oppor-
tunity to bargain about the subjects . Such conduct, without
more, violates the Act. "[C]ompliance with the statutory obli-
gation to `confer in good faith with respect to wages, hours,
and other terms and conditions of employment' presupposes
that the employer will not change wages or working condi-
tions without first giving his employees ' representative an
opportunity to consult and to bargain with him about the
proposed change. Failure to afford such opportunity to his
employees ' representative is the equivalent of an anticipatory
denial of the representative 's request to negotiate about the
subject and hence a constructive refusal to bargain. This fol-
lows from the fact that the statutory duty to bargain collec-
tively presupposes that an employer will not impede or frus-
trate the bargaining process which is the almost inevitable
result of a unilateral change in the terms and conditions of
employment whereby the employees ' representative is pre-
sented with a fait accompli. Furthermore, unilateral action by
an employer which denies to a labor organization effective
participation in a significant area of the bargaining relation-
ship tends to subvert the organization 's position as the repre-
sentative of employees and thus to interfere with the right of
the employees to bargain collectiv.ly through representatives
of their own choosing. "29
Second, there is Respondent's breach of the promise it
made to the Union on March 10, 1971, that it would submit
to the Union a proposed contract which it would be prepared
to execute . The understanding was that such instrument
would incorporate the clauses which had been agreed on
during the negotiations and also would include the Com-
pany's proposals regarding the three subjects which then still
were open . As to those three items, the reasonable assump-
tion of the Union was that the Company might offer more
favorable terms but would not propose less favorable condi-
tions than it had as of March 10. Instead of preparing a
Lange testified as follows:
Q. Did you tell him you weren't interested in meeting with the union
as long as this case is pending?
A. I'd say yes. Something similar to that. Either that, or the strike.
I don ' t know which one. I believe it was because of the strike.
Q. Are you willing to meet with the Union, at this time?
A. Yes. I've never refused to meet with them otherwise. We've never
broken off negotiations at any time.
E8 At the hearing Lange testified that the increases were for merit. How-
ever, he did not testify that the recipients were informed of the reason for
the increases . Furthermore, apart from Lange 's bare assertion, there is no
evidence in the record that any of the three increases was based upon merit.
" Curley Printing Company, 169 NLRB 251, 257. See also N.L.R.B. v.
Citizens Hotel Co., d/b/a Hotel Texas, 326 F.2d 501 (C.A. 5) (Christmas
bonus).
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proposed contract as it had promised, the Company called for
another meeting at which time it sought to reopen negotia-
tions about subjects that had previously been agreed on. Re-
spondent proposed a reduction in its current overtime pay
policy and the elimination of virtually all job classification,
wage, and seniority clauses from the contract. These latter
proposals would give the Company unfettered, unilateral
control over the most significant facets of the employees'
conditions of employment and thereby preclude the Union
from acting as an effective representative of its employees.70
No adequate explanation was offered by Respondent either
on March 18 or at the hearing for this change of position.
Moreover, the posture of the negotiations had reached such
a stage that there existed a likely possibility that had the
Company prepared a proposed contract, as it had promised
to do, the Union would have accepted it. As Lange testified,
the Company's representatives had concluded that the Union
had given in on just about everything. In the circumstances,
in agreement with General Counsel, I find that the Company
failed to keep its promise of March 10 and on March 18
sought to reopen negotiations about subjects which had been
previously settled because Respondent had no good-faith in-
tention of reaching a collective-bargaining agreement with
the Union. I further find that Respondent engaged in the
described bargaining maneuver to frustrate the possibility of
a successful conclusion of the negotiations.
Third, General Counsel also contends that Respondent
unlawfully refused to meet with the Union after the strike
began on on June 2. While Lange testified that as of the date
of the hearing he was willing to meet with the Union, he also
testified that after the strike began he informed a Federal
mediator that he did not wish to meet with the Union as long
as the employees were on strike. This expressed position con-
travenes Respondent's statutory obligations and violates Sec-
tion 8(a)(5).
Fourth, the three wage increases given to employees after
negotiations had begun were not only unlawful, unilateral
acts but also the antithesis of collective bargaining. Once a
statutory representative has been designated, such represent-
ative is the exclusive representative of all the employees in the
unit. For the Company, as it did in these three instances, to
deal individually with employees who compose part of the
unit was "subversive of the mode of collective bargaining
which the statute has ordained.""
In addition to the foregoing more specific and limited der-
elictions of its bargaining obligations, I find, in agreement
with General Counsel, that Respondent did not engage in
negotiations with a good-faith intention of seeking to reach
an agreement with the Union. At the very outset of the
negotiations, Respondent eliminated certain employee privi-
leges and benefits which Company President Lange openly
acknowledged was in retaliation against the employees for
having selected the Union as their representative at the June
30 Board election. While negotiations were in progress, by a
series of unilateral acts and by bargaining with individual
employees the Company was undermining the Union's repre-
sentative status. A particularly aggravated example was with-
holding the customary 1-percent Christmas bonus. The em-
J0 At the hearing Respondent contended that it had not agreed to a
6-percent general wage increase. Presumably, if then questioned, it would
have taken the same position on March 18. Thus, its position as of March
18 was, on one hand, to offer not a single economic benefit, and, on the other
hand, to obtain specific or tacit approval for the elimination of the annual
bonus, for a more restrictive overtime pay policy, and for a reduction in
vacation pay. At the same time it also wanted the Union to waive its
statutory right to represent the employees in matters relating to wages and
seniority.
" Medo Photo Supply Corporation v. N.L.R.B., 321 U.S. 678, 684.
ployees thus were shown forcibly and dramatically that union
representation would be the source of harm rather than
beneift. Moreover, during the negotiating sessions, the Com-
pany displayed a hardy reluctance to discuss with the Union
the restoration of any of the benefits which it unilaterally (and
I find unlawfully) had eliminated. Similarly, except for the
6-percent general cost-of-living increase , which accorded to
the Company's prior practices, the Respondent agreed to not
a single economic improvement, but instead sought to reduce
the employees' vacation pay. While Respondent thereby was
demonstrating to the employees through its bargaining in-
transigeance that they were unlikely to benefit from the
negotiations, and through the unilateral elimination of em-
ployment benefits that they would lose from union represen-
tation, McNally from time to time at the meetings questioned
the employees' need for a union. Thus, the conduct of Re-
spondent during the period of the negotiations served to dis-
parage the Union before the employees as an instrument for
dealing with the Company and as an agency for seeking to
obtain improvements in their conditions of employment.
Presumably the Company's basic position in defense to this
case is that it was engaged in hard bargaining. Lange testified
that the Company's economic position was such that it could
not afford any increase in its labor expenses. However, no
substantial effort was made by the Company to establish such
fact during the negotiations and the Company made no sin-
cere attempt to do so at the hearing. Additionally, the reason
the Company advanced for refusing to consider a checkoff
clause was demonstrated to be specious. More importantly,
when the possibility of reaching a contract materialized, the
Company withdrew earlier agreements and sought to reopen
negotiations. The Company in its brief advances the following
narrow defense for its bargaining conduct: "The govern-
ment's case will undoubtedly be built upon the accusation
that the Company was not bargaining in good faith. This is
always a nebulous charge. The physical facts are that the
parties had thirteen or fourteen lengthy meetings and dis-
cussed the basic differences and never arrived at a complete
agreement. The Company was at all times ready to meet the
Union to discuss the matter further." The simple answer is
that bargaining in good faith involves more than simple enter-
ing "upon a sterile discussion of union-management differ-
ences."" The Act contemplates that the parties will enter the
negotiations "with an open mind and purpose to reach an
agreement consistent with the respective rights of the par-
ties.""
The Company's counterproposals made at the last meeting
ignored the "cardinal principle of collective bargaining that
employees are entitled to participate `effectively' in determin-
ing, hours and other terms of employment affecting their
interests and welfare."" These last minute counterproposals
not only served to impede any agreement from being reached
quickly, if at all, and stymied further meaningful negotiations
but furthered a secondary purpose of crippling, if not destroy-
ing, the Union's status as the respresentative of the Com-
pany's employees.
The Company was indomitably opposed to dealing fairly,
realistically, or in good faith with the Union as the represent-
ative of its employees, it sought to make a charade of the
obligations imposed on it by the Act "to bargain collectively"
with the certified and exclusive representative of its em-
ployees. By prolonging the negotiations and on two occasions
by suspending negotiations and by maneuvering to avoid any
" N.L.R.B. v. American National Insurance Co., 343 U.S. 395, 402.
Majure Transport Company v. N.L.R.B., 198 F.2d 735, 739 (C.A. 5).
" Cox and Dunlop, Regulation of Collective Bargaining by the National
Labor Relations Board, 63 Harv. L. Rev. 389, 405 ( 1950).
ORION TOOL, DIE AND MACHINE CO. 1089
final agreement with the Union , Respondent undoubtedly
was seeking to oust the Union as its employees' representa-
tive. Its conduct in violation of its statutory obligations I find
was egregious.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with Respondent 's operations
described in section I, above, have a close , intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices , I shall recommend that it cease and desist
therefrom and that it take certain affirmative action designed
to effectuate the policies of the Act.
Having found that Respondent unlawfully has refused,to
bargain collectively with the Union , I shall recommend that
it be ordered to bargain collectively with the Union, upon
request, with respect to rates of pay, wages , hours of employ-
ment , and other terms and conditions of employment of the
employees in the appropriate unit described below . I shall
also recommend that any understanding which has been
reached or may be reached between the parties shall be em-
bodied in a signed agreement.
Having found that the Respondent unlawfully failed to pay
to its employees at Christmastime in 1970 their customary
annual bonus computed on a basis of 1 percent of the respec-
tive employee's earnings during the preceding 11 months, I
shall recommend that Respondent pay all employees who in
accordance with its prior practices would have received a
Christmas bonus in 1970 such bonus together with interest
thereon at the rate of 6 percent per annum computed from
December 25, 1970. Having also found that Respondent un-
lawfully has eliminated certain other benefits and privileges,
described more fully above , I shall recommend that the Com-
pany restore such benefits and privileges.
I have found further that Respondent did not confer in
good faith with the Union . I have found that Respondent's
attendance at 13 bargaining sessions with the Union was a
diversion, a mere pretense at engaging in negotiations with
the Union . While seeking to give the appearance of bargain-
ing, at no relevant time did Respondent have any intention
of consummating an agreement with the Union . Respond-
ent's purpose, I find, was to frustrate bargaining , to make the
negotiations a fruitless waste of time, to convince its em-
ployees that they could expect no benefits from union repre-
sentation, to denigrate the Union in the eyes of its employees
as a useless agency for securing job improvements , and ulti-
mately to eliminate the Union as its employees ' representa-
tive . The circumstances present here reveal a refusal by Re-
spondent "to accept the procedure of collective bargaining."35
It can be anticipated from Respondent's conduct in the past
that it will continue in the future to follow the same unlawful
course of action by seeking to avoid entering into any collec-
tive-bargaining agreement with the Union. In these circum-
stances a more widesweeping remedy is called for than the
circumscribed injunctions customarily directed in so -called
surface bargaining cases.
39 National Labor Relations Act, Sec 1.
General Counsel argues that, because of Respondent's
flagrant unfair labor practices , it should be ordered to place
in effect retroactive to March 1 , 1971, a general increase of
6 percent . He argues that such order would not be compelling
a concession on the part of the Company "since the conces-
sion had been voluntarily made then reneged on ." I do not
agree that it would be appropriate to order Respondent to pay
the 6-percent increase suggested by General Counsel. Each
agreement made by the parties during the negotiations was
premised on the conclusion of an entire contract . It would be
a distortion of the bargaining process in case to find that
Respondent had agreed on a 6 -percent general increase inde-
pendent of a broader contract . However, as of the conclusion
of the March 10 meeting , the Company and the Union had
come to agreement on all but three terms of a proposed
collective-bargaining agreement . The Company 's position as
to those three subjects had been advanced during the negotia-
tions . The Union requested Respondent to submit an agree-
ment which the Company would be prepared to execute and
the Union stated that it would present the instrument to its
membership . The Company promised that it would do so.
The terms of said proposed agreement, including the Com-
pany's position on the three disputed items, were already
reflected in written form by the various documents which had
been exchanged by the parties during the negotiations. No
more was involved on the part of the Company than to incor-
porate the various proposals into a single instrument. I have
found that the Company, fearing that such proposed contract
would be accepted by the Union, prevented the consumma-
tion of an agreement by seeking to reopen for further negotia-
tions subjects that had already been agreed on. I have further
found that Respondent 's breach of its promise to prepare and
to submit to the Union an instrument which it was prepared
to execute was in furtherance of its unlawful purpose of frus-
trating successful collective bargaining . But for such unlawful
conduct, in accordance with its promise , about March 15,
1971, Respondent would have offered to execute a contract
incorporating all agreements theretofore reached plus its
proposals regarding the three open subjects . In these circum-
stances, I am of the opinion, that the Company should be
directed to fulfill the undertaking it made on March 10 to
prepare an agreement , reflecting its position as of March 10,
1971 , as to all subjects about which the parties had bargained,
execute the same, and submit it to the Union for acceptance.36
As this remedy contemplates the possibility that but for Re-
spondent 's unlawful change of position an agreement might
have been reached as of about March 15, the contract which
the Respondent is directed to execute shall be effective as of
March 15 , 1971 . While the parties did not specifically come
to a conclusion as to the term of their agreement, I credit
Raymond Shaw that a 1 -year term was proposed by the
Union and was not rejected by the Company. Accordingly,
the agreement which I shall direct the Respondent to execute
shall be for a term of 1 year from March 15, 1971.
36 Attached hereto as Appendix B is a copy of the contract the Company
shall execute and submit to the Union in accordance with the provisions of
this recommended Order. Appendix B with only necessary minor changes
is an exact copy of General Counsel Exhibit 2-0. However, Appendix B
includes the 6-percent general increase and a provision that the agreement
shall be retroactively effective from March 15, 1971 , the date on which it
initially would have been submitted to the Union but for Respondent's
unlawful breach of its promise As the 6-percent increase called for by
Appendix B represents payment of a wage increase , unlawfully withheld, for
work performed prior to August 15, 1971, the wage freeze , pursuant to the
Economic Stabilization Act of 1970 , does not apply thereto. Because of the
difficulty of computing interest week-by-week , I shall not recommend that
the Company pay interest on the back wages, if the Union should accept the
contract.
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For the reasons set forth in M.F.A. Milling Company, 170
NLRB 1079, I shall recommend that Respondent reimburse
the employee members of the union negotiating committe for
wages lost, if any, while attending past negotiating sessions
with interest thereon at the rate of 6 percent per annum.
I have found that the strike by Respondent's employees
which began on June 2, 1971, was caused and has been pro-
longed by Respondent's unfair labor practices. Accordingly,
I shall recommend that, upon their application for reinstate-
ment, the Respondent shall reinstate all its employees who
participated in said strike to their former or to substantially
equivalent positions, without impairment of their seniority or
other rights or privileges, dismissing, if necessary, any per-
sons hired as replacements on and after June 2, 1971. If, after
such dismissals, there are insufficient positions remaining for
all the striking employees who desire reinstatement, the avail-
able positions shall be distributed among them, without dis-
crimination because of their union membership, activities, or
participation in the strike, in accordance with seniority or
other nondiscriminatory practice as theretofore has been ap-
plied by the Company in the conduct of its business. Those
strikers for whom no employment is immediately available
after such distribution shall be placed upon a preferential
hiring list with priority determined among them by seniority
or other nondiscriminatory practice as' theretofore has been
applied by Respondent in the conduct of its business and,
thereafter, in' accordance with such system, they shall be
offered reinstatement - as positions become ' available and
before other persons are hired for such work, I shall also
recommend that the Respondent make the striking em-
ployees whole for any loss of earnings they may have suffered
or may suffer by reason of Respondent's refusal, if any, to
reinstate them, by payment to each of a'sum of money equal
to that which he normally would have earned during the
period from 5 days after the date on which he applied, or shall
apply, for reinstatement, to the date of Respondent's offer of
reinstatement to him, absent a lawful justification for Re-
spondent's failure to make such offer. Backpay shall be com-
puted on the basis of calendar quarters, in accordance with
the method prescribed in F W. Woolworth Company, 90
NLRB 289. Interest at the rate of ,6 percent per annum shall
be added'to the net backpay and shall be computed in the
manner set forth in Isis Plumbing & Heating Co., '138 NLRB
716.
I have found that the Respondent has failed to bargain
collectively in good faith with the Union as the representa-
tive, duly certified by the Board, of the appropriate collective-
bargaining unit of employees herein defined. In order to in-
sure that the'employees in the appropriate unit will have the
opportunity to enjoy the full benefits that may be derived
from their selection of a bargaining agent as contemplated by
the Act, I recommend that the initial year of certification be
deemed to begin on the date that the Respondent commences
to bargain in good faith with the Union as the recognized
bargaining representative for the employees in the appropri-
ate unit. See Mar-Jac Poultry Company, Inc., 136 NLRB 785;
Commerce Company d/b/a Lamar Hotel, 140 NLRB 226,
229, enfd.' 328 F.2d 600,(C; A. 5), cert. denied 379 U.S. 817.
Respondent's unlawful activities, found above, demon-
strate a disregard,of its statutory obligations and indicate 'a
purpose to defeat self-organization of its employees. The un-
fair labor practices committed by Respondent are potentially
related to other unfair labor practices proscribed by the Act,
and the danger of their commission in the future is to be
anticipated from Respondent's conduct in the past. The pre-
ventive purposes of the Act will be thwarted unless the
recommended Order herein is coextensive with the threat.
Accordingly, in order to make effective the interdependent
guarantees of Section 7 and thus to effectuate the policies of
the Act, an order requiring Respondent to cease and desist
from in any manner infringing on the rights - of employees
guaranteed in the Act is deemed necessary.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Since July 1, 1970, by eliminating employee privileges
and benefits such as: (a) free coffee, rolls, donuts, and soda
pop; (b) permission to make personal use of company equip-
ment and tools on employees' free time; (c) permission to
borrow company tools and equipment to use at home; (d)
permission to purchase tools and similar equipment from the
Company's suppliers and to charge the purchases to the
Company thereby obtaining the benefit of the Company's
discount; (e) permission to repay the Company for such pur-
chases on a weekly basis without any interest charge; (t) a
bench for the use of employees when eating lunch; (g) permis-
sion to eat lunch on the lawn in front of the plant or `at other
places close to the plant without punching their timecards;
and (h) delivery to employees of their paychecks before noon
on Fridays; in reprisal against the employees for having desig-
nated the Union in a Board-conducted election as their statu-
tory collective-bargaining representative, Respondent has en-
gaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
2. In July 1970, by threatening employees that various
privileges and benefits would be withdrawn because the em-
ployees had designated the Union as their collective-bargain-
ing representative in a Board-conducted election, Respond-
ent has engaged in and is engaging in further unfair labor
practices within the meaning of Section 8(a)(1) of the Act,
3. All tool and die makers, machinists and their appren-
tices, and other employees who are engaged in the manufac-
ture, altering, modifying or developing of tools,, dies, gauges,
jigs, fixtures, molds or special machinery within,the operation
of the Employer's Orion, Illinois plant, but excluding, all
supervisors within the meaning of the Act, clerical, and all
other employees, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section
9(b) of the Act.
4. International Association ofTpol Craftsmen, Local # 1,
N.F.LU., since June 30, 1970, ' and at all times material
herein, has been the exclusive collective-bargaining represent-
ative within the meaning of Section 9(a) of the Act of the
employees in the above-described unit. ,
5. Since July 27, 1970, by failing and, refusing to bargain
in 'good faith with the Union as the collective -bargaining
representative of Respondent's employees in the aforesaid
appropriate` unit with respect to rates of pay, wages, hours 'of
employment, and other terms and conditions of employment,
Respondent has engaged in and is 'engaging in unfair labor
practices within the meaning of Section '8(a)(5) of the Act.'
6. By granting wage increases to certain employees in-
cluded in the above-described bargaining `unit on and after
August 15, 1970, without affording the Union an opportunity
to bargain about such matters, Respondent has engaged in
and is engaging in further unfair labor practices within the
meaning of 'Section 8(a)(5) of the Act.
7. By failing to pay its' customary Christmas bonus to the
employees in the above-described appropriate unit in the year
1970 and, on and after July 1, 1970, by eliminating various
benefits and privileges enjoyed by said employees without
affording the Union an opportunity to bargain about such
matters, Respondent has further engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(5)
of the Act.
ORION TOOL, DIE AND MACHINE CO. 1091
8. By refusing to meet and bargain with the Union on and
after June 2, 1971, because the Union had called a strike of
Respondent's employees, Respondent further has engaged in
and is engaging in unfair labor practices within the meaning
of Section 8(a)(5) of the Act.
9. The strike of Respondent's employees which began on
June 2, 1971, was caused and has been prolonged by Re-
spondent's unfair labor practices herein found.
10. The foregoing conduct on the part of Respondent
which has been found to be in violation of Section 8(a)(5) of
the Act also has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section
7 of the Act and Respondent has thereby also engaged in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
11. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:"
ORDER
Respondent, the Orion Tool, Die and Machine Company,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with loss of benefits and privi-
leges which they have enjoyed as a condition of their employ-
ment over a period of many years such as the use of company
tools on their free time and the privilege of purchasing tools
for their personal use through the company facilities because
they had designated International Association of Tool Crafts-
men, Local # 1, N.F.I.U., as their collective-bargaining rep-
resentative or because they have engaged in self-organiza-
tional activities.
(b) Engaging in any reprisals, including elimination of be-
nefits and privileges which the employees have enjoyed as a
condition of their employment, against its employees for hav-
ing designated International Association of Tool Craftsmen,
Local # 1, N.F.I.U., as their collective-bargaining represent-
ative or because they have engaged in self-organizational ac-
tivities.
(c) Refusing to bargain collectively with International As-
sociation of Tool Craftsmen, Local # 1, N. F. I. U., as the
exclusive collective-bargaining representative of the em-
ployees in the following appropriate unit:
All tool and die makers, machinists and their appren-
tices, and other employees who are engaged in the manu-
facture, altering, modifying or developing of tools, dies,
gauges, jigs, fixtures, molds or special machinery within
the operation of the Employer's Orion, Illinois plant, but
excluding all supervisors within the meaning of the Act,
clerical, and all other employees.
(d) Making or effecting any changes in the wages, hours,
and other terms or conditions of employment of employees
in the aforesaid collective-bargaining unit without first giving
notice to their collective-bargaining representative and
affording such representative an opportunity to engage in
collective bargaining with respect to any proposed change.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of their right to self-organ-
ization, to form, join, or assist International Association of
Tool Craftsmen, Local #11, N.F.I.U., or any other labor
organization, to bargain collectively through representatives
of their own choosing, to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities.
2. Take the following affirmative action, which is deemed
necessary to effectuate the policies of the Act:
(a) Prepare a proposed collective-bargaining agreement re-
flecting the Company's position as of March 10, 1971, before
the Company by its unlawful conduct caused the collapse of
negotiations, in accordance with the criteria described in the
section hereof entitled "The Remedy," execute two copies
thereof, and submit them to the Union for the Union's consid-
eration and acceptance.
(b) Upon request, bargain collectively concerning rates of
pay, wages, hours of employment, and other terms and condi-
tions of employment with International Association of Tool
Craftsmen, Local # 1, N.F.I.U., as the exclusive representa-
tive of all the employees in the appropriate unit described
above, and, if an agreement is reached, embody it in a signed
contract. 38
(c) Make whole each employee member of the negotiating
committee of the Union for earnings lost while attending past
bargaining sessions with interest thereon at the rate of 6
percent per annum.
(d) Pay to the employees who, in accordance Cvith the
Company's practices prior to 1970, would have received a
Christmas bonus in 1970 an amount equal to the bonus which
they would have received but for Respondent's unlawful fail-
ure to pay the same, together with interest thereon at the rate
of 6 percent per annum.
(e) Reinstate the following working conditions which were
unlawfully eliminated: (1) the company practice of providing
an electric coffeepot for the use of its employees and free
coffee, rolls, doughnuts, and soda pop; (2) permission for
employees to make personal use of company equipment and
tools on the employees' free time, in accordance with- the
Company's past practice in that regard; (3) permission,
employees to borrow company tools and equipment to
their homes, in accordance with the Company's past
in that regard; (4) permission for employees to purchase gaols
and similar equipment from the Company's suppliers, in ac-
cordance with the Company's past practices in that regard,
and to charge such purchases to the Company and to repay
the Company for such purchases on a weekly basis without
any interest charge, in the manner in which such repayments
were made in the past; (5) a bench or other suitable facility
for employees to use while eating their lunch; (6) permission
for employees to eat lunch on the Company's lawn or in close
proximity to the plant without punching their timecards; and
(7) the company practice of paying employees before noon
every Friday.
(f) Upon application, offer immediate and full reinstate-
ment to their former or substantially equivalent positions, if
jobs are available, without prejudice to their seniority or other
rights and privileges, to all those employees of the Respond-
ent in the unit above found appropriate who were on strike
on or after June 2, 1971, and who have not already been
" In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and order, and all objections thereto shall
be deemed waived for all purposes.
II Should the Union accept the contract offered by Respondent in accord-
ance with the terms of this recommended Order, the Respondent's duty and
obligation to bargain collectively, upon request, is circumscribed only to the
extent that generally applicable principles limit a contracting party's duty
to negotiate during the term of a valid subsisting collective-bargaining agree-
ment.
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstated, dismissing, if necessary, any persons hired as re-
placements by Respondent on or after June 2, 1971. If suffi-
cient jobs are not available for these employees, they shall be
placed on a preferential hiring list in accordance with their
seniority or other nondiscriminatory practices theretofore
utilized by the Company, and they shall be offered employ-
ment before any other persons are hired. Make whole these
employees for any loss of earnings they may have suffered or
may suffer by reason of Respondent's refusal, if any, to rein-
state them in accordance with the terms of this recommended
Order, in the manner set forth in the section of this Decision
entitled "The Remedy."
(g) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(h) Post at its plant in Orion, Illinois, copies of the attached
notice marked "Appendix C." Copies of said notice, on
forms provided, by the Officer-in-Charge for Subregion 38,
after being duly signed by the Respondent's representative,
shall be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to its
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.
(i) Notify the Officer-in-Charge for Subregion 38, in writ-
ing, within 20 days from the date of the receipt of this Deci-
sion , what steps the Respondent has taken to comply here-
with'° [See 1096 for Appendix A.]
" In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN OR-
DER OF THE NATIONAL LABOR RELATIONS BOARD."
'0 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Office-in-Charge for Subregion 38, in writing , within 20 days
from the date of this Order , what steps the Respondent has taken to comply
herewith."
APPENDIX B
Agreement
This Agreement made this Day of , 1971,
but effective retroactively to March 15, 1971, between
ORION TOOL, DIE AND MACHINE COMPANY of
Orion , Illinois , or its successors , hereinafter designated as the
"Company", and Local # 1 , INTERNATIONAL AS-
SOCIATION OF TOOL CRAFTSMEN, hereinafter desig-
nated as the "Union".
Article I
Recognition
Section 1. In accordance with the certification of the National
Labor Relations Board dated July 9, 1970, certifying the
International Association of Tool Craftsmen, Local # 1,
N.F.I.U. as the exclusive representative of the Unit of em-
ployees set forth below, the Company hereby recognizes Lo-
cal # 1, International Association of Tool Craftsmen,
N.F.I.U., as the exclusive bargaining agent for the purposes
of collective bargaining in respect to rates of pay, hours of
work, or other conditions of employment for the employees
of the following Unit: All tool and die makers, machinists and
apprentices, and other employees who are engaged in the
manufacturing, altering, modifying or developing of tools,
dies, jigs, fixtures, molds or special machinery within the
operation of the Employer's Orion, Illinois, plant. But ex-
cluding all supervisors within the meaning of the Act, cleri-
cal, and other employees.
Section 2. It is agreed between the Company and the Union
that the work of Tool and Die Makers is a standard trade,
recognized as such by the government (bureau of apprentice-
ship, United States Department of Labor).
Article II
Representation
Section 1. The Union shall be represented by a committee
consisting of three members, who shall be employees of the
Company, and the Union shall designate its representatives
and shall also advise the Company as to such designation,
including alternates , The Company shall also designate not
more than an amount of representatives than those represent-
ing the Union.
Section 2. The Union and the Company each reserve the right
to call in outside qualified representatives at any time for
meetings of the Union Shop Committee and the Company
Representatives. The Union and the Company agree to notify
the other party one (1) day in advance when such representa-
tives are to attend these meetings and the number called in
at any one meeting shall not exceed two (2).
Section 3. The Union and the Company agree that the Shop
Committee and the Company representatives shall meet on
the first working Monday of each month. In the absence of
something to discuss or in the event of conflicting engage-
ments, the meeting may be postponed or called off by mutual
agreement.
Section 4. In the event of an emergency, special meetings will
be called by either party as agreed to by the Company and
the Union Shop Committee.
Section 5. It is agreed between the Company and the Union
that the meetings referred to shall be held during regular
working hours or after regular working hours as agreed to
between the Union Shop Committee and the Company repre-
sentatives.
Article III
Hours of Work and Overtime
Section 1. The regular work week shall be eight (8) hours per
day, five (5) days per week Monday through Friday. The
regular work week for purposes of computing regular time
and overtime shall be from Sunday at 12:01 A.M. Through
Saturday 12:00 Midnight.
Section 2. All work performed in excess of eight (8) hours in
any single day and all work performed on Saturday shall be
paid at one and one-half (1'2 times the straight time rate.
Section 3. Double time shall be paid for all work performed
on Sundays & Holidays.
Section 4. Employees asked to work overtime during the
regular work week shall be notified at least four (4) hours
prior to the end of the regular work day except in case of
emergency.
Section 5. Employees shall be notified by Thursday noon if
work is to be scheduled on the following Saturday or Sunday.
Should conditions require notification later than Thursday
noon, it shall be by request to each individual and their
refusal due to previous commitments shall not be held against
them.
Section 6. Overtime shall be divided as equally as possible
among the employees who normally do the work on which
the overtime is required. Errors in distribution of overtime
ORION TOOL, DIE AND MACHINE CO.
will be corrected without payment of overtime for hours not
worked . Any employees discriminated against will be given
first consideration to make up overtime.
Section 7. The Union Steward shall be informed in advance
as to who is to work overtime except in case of emergency
when he shall be informed as soon as practical thereafter.
Section 8. Any employee who reports for work on his regular
shift who has not been notified in advance that there is no
work available at his regular job shall receive two (2) hours
pay at his regular straight time rate for the job he regularly
performs . When he is called in for overtime work, the over-
time rate shall apply. This section does not apply when such
lack of work is due to failure of power supply , fire, flood, labor
trouble or any other cause beyond the control of the Com-
pany.
Article IV
Grievance Procedure
Section 1. The parties agree to the following procedure for the
prompt settlement of a grievance , which shall be during
working hours or following working hours.
a. If an employee has a complaint, he shall report to his
foreman with his steward present, and between the em-
ployee, the steward and the foreman, the complaint will
be discussed and settled, if possible.
b. If such issue is not settled with the foreman, it shall
be considered a grievance, and the same shall be reduced
to writing and signed by the employee and the steward
within two (2) working days, whereupon the foreman
will write his decision of the issue and sign same by the
end of the second working day thereafter.
c. Such decision is final, unless within two (2) working
days within the date of the decision, a request is made
to the Company representatives for review. If such re-
quest is made, a date for a meeting will be set within two
(2) working days for a disposition of the issue by the
Company representatives and the Union Shop Commit-
tee.
Section 2. The Union shall make available an adequate supply
of grievance forms at the location of each foreman and stew-
ard.
Section 3 . Any complaint not initiated at step `a' within two
(2) working days of its occurrence shall not be considered
unless the employee has no reasonable way of knowing of the
occurrence until more than two (2) days thereafter in which
case he shall have two (2) days after learning of the occur-
rence in which to make his complaint.
Section 4. In the event that an employee is restored to duty
as a result of his grievance , he shall be entitled to compensa-
tion for time lost at not to exceed eight (8) hours per day or
forty (40) hours per week. If a suspension or discharge is
upheld as reasonable or just, the employee affected shall not
have to pay for the period of suspension, and if discharged,
the discharge shall be considered as final.
Section 5. It is understood that employees shall comply with
all rules and regulations made by the Company. The Com-
pany agrees that no rules or regulations will be made which
are in conflict with this Agreement. Any new rules shall be
agreed to between the Company and the Union Shop Com-
mittee if they involve conditions of employment.
Article V
Deleted
Article VI
Deleted
Article VII
1093
Strikes, Stoppages and Lockouts
There shall be no strike, slowdown or other interference with
the production work, or a lockout during the term of this
Agreement, unless the parties, after fully complying with the
grievance procedure fail to reach a settlement on a grievance
involving interpretation or application of this Agreement,
and then a strike or lockout may be called. In the event one
party calls a strike or a lockout, the other party shall have the
right to terminate this Agreement upon five (5) days written
notice.
Article VIII
Seniority
Section 1. Seniority as to length of service, subject to the
period of probationary employment hereinafter referred to,
shall be cumulative from the first day of employment, without
deductions for temporary layoffs. When conditions warrant
an increase or decrease in the number of employees, the
principle of classification seniority within the unit shall apply.
Section 2. The Company shall give the Union, through the
Steward and the affected employee, at least three (3) working
days notice of all proposed lay-offs, except when such notice
is not possible due to cancellation of work or for reasons for
which the Company had no prior knowledge.
Section 3. Seniority shall be broken when:
(a) When an employee voluntarily quits.
(b) When an employee is discharged for a just cause.
(c) When an employee fails to return to work upon the
expiration of a leave of absence.
(d) When an employee has been continually laid off for a
period of one-half ('Z the length of his seniority at the time
of lay-off with a maximum of two (2) years.
(e) When an employee on leave of absence takes other
employment without approval of the Company and the
Union.
(f) When an employee accepts employment,-before receiv-
ing a lay-off notice, on a part time or full time job with other
employer in tool & die work or other work in competition to
Orion Tool, Die & Machine Company:
Section 4. (Deleted)
Section 5. Call back after lay-off.-Significant amounts of
overtime will not be worked by employees doing the same
type of work normally done by a laid off employee. When an
employee is called back from a lay-off, he shall have up to
three (3) working days to report without losing his seniority
status.
Article IX
Holidays and Holiday Pay
Section 1. The following holidays are covered by this Article:
New Years Day, Memorial Day, Fourth of July, Labor Day,
Thanksgiving Day, Christmas Day and one Floating holiday.
Section 2. The Company will pay the employees of the Bar-
gaining Unit a sum of money represented by their straight
time hourly rate for eight (8) hours not worked for each of
the holidays in Section 1, above.
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 3. If any of the Holidays named in Section 1, fall on
a Sunday, the Holiday will be observed on the following
Monday.
Section 4. If any of the said Holidays fall during an em-
ployees' vacation period, the employee shall be entitled to
receive pay therefor at the regular straight time hourly rate
for eight (8) hours in addition to any vacation pay, or an
additional day of paid vacation.
Section 5. Employees who do not qualify for Holiday pay
during their probationary period shall receive such holiday
pay if and when they complete their probationary period.
Article X
Leaves of Absence
Section 1. The parties agree relative to leaves of absence
without pay, that:
a. At the request of the Union in writing a leave of absence
shall be granted by the Company to any employee regularly
elected to a Union elective office, or elected as a delegate to
any regular or special Union convention or conference on the
condition that not more than two (2) persons at any one time
shall request or be granted such leave of absence during the
period involved.
b. The Company reserves the right to require of those
employees obtaining a leave of absence for medical reasons a
Doctors' Certificate that such employee is fit to resume work
covered by his classification upon expiration of such leave.
c. At the request of the Union, a leave of absence for a
period, not to exceed one year and two weeks, shall be
granted by the Company to employees who have been elected
to a Union elective office.
d. Any employee who has been granted a leave of absence
hereunder shall be returned, upon the completion of the
leave, to his former position at the rate in effect at the time
of his return and without loss or prejudice to any of his rights
or privileges, provided that he shall return promptly upon
expiration of his leave of absence or any extension thereof
mutually agreed upon.
Article XIII
Insurance
Section 1. The Company shall maintain a group insurance
plan with the benefits equal to those now in effect. The Com-
pany shall pay the employees part of the health & accident
insurance and the employee will pay for dependents, weekly
indemnity and life insurance.
Article XIV
Vacation and Vacation Pay
Section 1. The vacation period for each employee shall begin
with his anniversary date of initial employment with the
Company, and a weeks vacation shall consist of seven (7)
consecutive days.
Section 2. The Company will endeavor to arrange for the
individual vacations at times desired by the individual em-
ployees; Seniority will be considered in the scheduling of
vacations.
Section 3. All employees of the Company who have been on
the payroll one year or more shall receive a vacation with pay
as follows:
a. One year or more and less than three (3) years shall
receive-1 week.
b. Three years or more and less than ten (10) years shall
receive-2 weeks.
c. Ten (10) years or more-3 Weeks.
Section 4. Vacation pay shall be computed at two percent [2
percent] times the employees gross earnings for the year prior
to his anniversary date or forty (40) hours whichever is the
least, for each week of earned vacation.
Section 5. Any employees who have been terminated, dis-
charged for just cause or quit prior to their anniversary date
shall have vacation pay pro-rated from their prior anniver-
sary date.
Article XV
Job Classification and Wage Rates
Section 1 . Job Classifications and wage rates minimums shall
be as follows:
Article XI
Probationary Employees
Section 1. The parties agree with reference to probationary
employees that:
a. All employees, until they have worked forty-five (45)
days, not counting absence, lay-off, or non-work days, shall
be probationary employees.
b. During the probationary period, the probationary em-
ployee shall have no seniority standing and the Company may
lay-off or discharge such employee with or without cause.
Employees who have completed said probationary period and
have been retained by the Company at the expiration thereof
shall be credited with seniority for forty-five (45) Days
worked.
Article XII
Apprenticeships
Section 1 . The Company agrees to maintain the present Ap-
prenticeship program approved by the Bureau of Apprentice-
ship, United States Department of Labor, and when there is
a need for more Apprentices the Company will negotiate a
program with the Union.
Classification Minimum rate
Tool & Die Maker $4.75
Machinist $4.50
Tool Room Machine Operator $4.00
Laborer $2.50
Section 2. Employees of one classification shall not receive a
wage rate greater than the next higher classification.
Section 3. Employees who work a night shift shall receive a
premium of ten cents (10 cents) per hour in addition to their
regular rate for all hours worked on such shift.
Section 4. Effective as of March 15, 1971, each employee shall
receive an increase of 6 percent in his hourly wage rate.
Article XVI
General
Section 1. Any clause in this Agreement which shall be found
to be in violation of any state of Illinois or Federal Law now
in effect or hereafter to become in effect during the life of this
Agreement, shall be immediately considered null and void
without affecting any other clause of this agreement.
Section 2. The Company shall comply with all Federal and
State laws and local ordinances with respect to safety equip-
ment and plant maintenance.
Section 3. The Company agrees to pay all employees during
working hours. In the event a holiday falls on a payday, the
ORION TOOL , DIE AND MACHINE CO.
Company shall pay all employees on the workday preceding
the holiday.
Section 4 . The Company agrees to furnish a bulletin board for
the use of the Union in an area which is accessible to all of
the Employees . The Union may not post anything derogatory
of the Company or any individual or anything immoral or
indecent.
Section 5. The Company will continue to make reasonable
provision for the safety and health of the employees . Protec-
tive safety equipment will be provided by the Company for
employees where such equipment has been provided in the
past . The Company and the Union agree that good
housekeeping in the shop provides for better working condi-
tions and every effort will be made to keep machinery in good
1095
working order and safe working conditions will be the habit
of all those working in the bargaining unit.
Article XVII
Termination
Section 1 . This agreement shall remain in full force and effect
until March 14, 1972 , and thereafter from year to year unless
written notice of termination is given to either party by the
other by registered or certified mail or personal service at
least sixty (60) days prior to the expiration of any subsequent
yearly period.
[See 1096 for Appendix A.]
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix A
Status of negotiations as of the dates indicated. Article and section numbers
correspond to the drafts of the proposed agreements introduced-in evidence.
Certain article subdivisions, which were not the subjects of much discussion,
have been omitted.
Article 8/11/70 8/18/70 2/9/71 2124/71 312/71
I. Recognition agreed agreed agreed agreed agreed
(recognition of certified
representative)
II* Representation agreed agreed agreed agreed agreed
(designation of represen-
tatives by parties,
meetings, etc.)
III. Hours of Work & Overtime
Sec. 1 agreed agreed agreed agreed agreed
(definition of regular
workweek)
Sec. 2 agreed agreed agreed agreed agreed
(overtime at 1^ times
straight time rate above
8 hours in a day and on
Saturdays)
Sec. 3 open open agreed agreed agreed
(double time for Sundays, (Union modified
holidays, and work in its proposal)
excess of 10 hours in a
day)
Sec. 4 agreed agreed agreed agreed agreed
(4 hours'advance notice
of overtime except in
emergencies)
Sec. 5 agreed agreed agreed agreed agreed
(advance notice for Satur-
day and Sunday work)
Sec. 6 open open open open agreed
(overtime shall be divided
as equally as possible)
ORION TOOL, DIE AND MACHINE CO. 1097
Article 8/ 11 / 70 8/ 181 70 2/ 9/71 2124/71 3/2/71
Sec. 7
(union steward will be
notified in advance of
overtime assignments)
agreed agreed agreed agreed agreed
Sec. 8 agreed agreed agreed agreed agreed
(2 hours report -in pay)
Sec. 9 open open open deleted deleted
(callback pay at double
time rate)
Sec. 10 open open open deleted deleted
(supervisors performing
unit work)
IV. Grievance Procedure agreed agreed agreed agreed agreed
V. Union Shop open open open open open
VI. Checkoff open open open open open
VII. Strikes, Stoppages , agreed agreed agreed agreed agreed
and Lockouts
VIII. Seniority
Sec. 1 agreed agreed open agreed agreed
(cumulative and by (Company
classification) proposed
new term)
Sec. 2 open open open open agreed
(3 days' notice of
layoff)
Sec. 3 open open open open agreed
(when seniority is
broken)
Sec. 4 open open open deleted deleted
(superseniority)
Sec. 5
(callback after layoff) proposed open modified
by Union
1098 D£,CISIONS OF NATIONAL LABOR RELATIONS BOARD
Article
IX. Holiday Pay
Sec. 1
(number of holidays)
Sec. 2
(computation of holiday
pay)
Sec. 3
(holidays falling on
weekend)
Sec. 4
(holidays within vacation
period)
Sec. 5
(probationary employees)
X. Leaves of Absence
XI. Probationary Employees
XLI. Apprenticeships
XIII. Insurance
XIV. Vacation and Vacation
Pay
Sec. 1
(definitions)
Sec. 2
(Company will try to
accommodate egpl .oyees'
wishes)
Sec. 3
(entitlement)
Sec. 4
(computation of vacation
pay)
4/11/8 81870 2971 22471 3/2/71
open open open agreed agreed
agreed agreed agreed agreed agreed
open agreed agreed agreed
(Union modified
its proposal)
agreed agreed agreed agreed agreed
agreed agreed agreed agreed agreed
agreed agreed agreed agreed agreed
open open agreed agreed agreed
open open open agreed agreed
open open open open open
agreed agreed agreed agreed agreed
agreed agreed agreed agreed agreed
open open open open agreed
(Union
accepted
Company
Oroposa1)
open open open open open
ORION TOOL, DE AND MA0EUNE CO. 1099
Article a,/11/70 g 1,81 2:.2 41 71 3/2/71
Sec. 5
(prorated in case of
termination)
agreed agreed agreed agreed agreed
XV. Job Classification and
Wage Rates
Sec. 1 open open open
(classifications and
minimum rates) -
Sec. 2 open open agreed agreed agreed
(wage rate relationships)
Sec. 3 open open open open
(night-shift premium) 6*-cent 6-percent
.rease increase
feed agreed upon
capon
XVI. General
Sec. 1 agreed agreed agreed agreed agreed
(severability of clauses)
Sec. 2 agreed agreed agreed a-greed agreed
(compliance with law)
Sec. 3 agreed agreed agreed agreed agreed
(payday)
Sec. 4 agreed agreed agreed agreed agreed
(bulletin board)
Sec. 5 open open open open open
(protective equipment at
Company's expense)
XVII. Termination
(language of clause was
accepted)