The Perry Rubber Co.

National Labor Relations Board - Board Decisions

Sep 20, 1961

133 N.L.R.B. 225 (N.L.R.B. 1961)

THE PERRY RUBBER COMPANY 225
action proscribed under Section 8(e) is taken, the remedy is provided by statutory
scheme.
CONCLUDING FINDINGS OF FACT
1. Article 16 of the collective-bargaining agreement protects the rights of indi-
vidual employees in their determination whether or not they are to honor a picket
line, or the performing of any work whatsoever in connection with the handling or
performing of any service whatsoever on goods, products, or materials coming from
or going to the premises of an employer where there is any controversy with a union.
2. Said article 16 in no way requires the employer to cease or refrain or to agree
to cease or refrain from handling, using, or otherwise dealing in any of the products
of any other employer, or to cease doing business with any other person.
3. The Board's decision in the representation case, 129 NLRB 321, is not a deter-
mination that article 16 is per se a violation of Section 8(e) of the Act.
Upon the basis of the foregoing findings of fact, I make the following:
CONCLUSIONS OF LAW
1. Mary Feifer, d/b/a American Feed Company, is an individual proprietorship
with its principal office, plant, and place of business in the Bronx, city of New York,
State of New York, where she is there engaged in the processing of bakery salvage
for use in the sale and distribution of animal feed and related products.
The Respondent is and has been at all times material herein an employer engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent Union is and has been at all times material herein a labor
organization within the meaning of Section 2(5) of the Act.
3. Neither the Respondent Employer nor Respondent Union have engaged in or
are engaging in unfair labor practices affecting commerce within the meaning of
Section 8(e) and Section 2(6) and (7) of the Act.
4. The complaint herein should be dismissed.
[Recommendations omitted from publication.]
The Perry Rubber Company and Local Union No. 601, United
Rubber, Cork, Linoleum and Plastic Workers of America,
AFL-CIO. Case No. 8-CA-2257. September 20, 1961
DECISION AND ORDER
On May 9, 1961, Trial Examiner John P. von Rohr issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its power in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, and the entire record in the case, and
133 NLRB No. 26.
624067-62-vol . 133-16
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner, with the following additions and modifications : i
The Trial Examiner found that the Respondent violated Section
8(a) (5) and (1) of the Act by (a) its unilateral grant of a 5-cent
wage increase on August 15, (b) its unilateral announcement and es-
tablishment on August 17, of a change in the contractual job-bidding
procedure, and (c) its refusal to meet with the Union on and after
August 19. Respondent excepts to these findings.
Chronology
The Union was certified on April 3, 1959, as the representative of
Respondent's employees. On July 7, 1959, the parties executed an
agreement effective to January 15, 1961, and on May 12, 1960, the
parties began to negotiate concerning revision of this agreement .2 On
July 28, Respondent offered the Union a 5-cent wage increase, which
the Union rejected on August 1. On August 12, Respondent notified
the Union of withdrawal of its offer of a 5-cent wage increase, but on
August 15 the Respondent granted the increase to the employees. On
August 17, without prior consultation with, or notice to, the Union, the
Respondent announced to the employees a job-bidding procedure
which the Trial Examiner found constituted a change in the existing
procedure.
On August 17, the Perry Rubber Association Union, an independent
labor organization,' began to solicit signatures in support of a petition
to decertify the Union, and such a petition was mailed to the Board's
Regional Office on August 19. Lucas and Ganz, the Respondent's
negotiators, learned of the preparation of the petition on August 17
and 18, respectively, and Ganz learned of the filing of the petition
"in the afternoon" of August 19. On the same afternoon, the Re-
spondent, as the Trial Examiner found, rejected the Union's request
for a bargaining conference and notified the Union through Lucas
that Respondent would not meet with the Union further. On August
24, the Union by letter requested further negotiations.' On August
31, Ganz replied that Respondent was willing to meet and that its
legal counsel would shortly contact the Union. However, on the same
day, Respondent's counsel, Burt, was advised by O'Brian, a commis-
sioner of the Federal Mediation and Conciliation Service, to stop
negotiations because "there was another group that had claimed
representation." There were no further negotiations.
1 The Respondent 's request for oral argument is hereby denied , as the record , including
the exceptions and brief, adequately reflects the issues and the positions of the parties
2 Although such negotiations were originally instituted pursuant to a wage reopening
clause in the contract, they eventually embraced all terms of the contract.
$ This union had functioned at the instant plant for some time prior to the advent of
the Charging Union
* The Union called a strike on the same day.
THE PERRY RUBBER COMPANY
1. The unilateral increase
227
The Trial Examiner found that the 5-cent increase granted on
August 15, after it had been rejected by the Union, violated Section
8 (a) (5) and (1) of the Act. The Respondent contends (1) that it
was entitled to take such action because bargaining had reached an
impasse, and (2) even in the absence of an impasse, Respondent was
privileged to grant the increase after its rejection by the Union.
As to (1), we find, like the Trial Examiner, that there was no impasse
on August 15 when the wage increase was announced. As to (2), the
Respondent contends that there is authority for the proposition that
under certain circumstances a respondent employer, even while ne-
gotiations are pending, may grant to his employees the same benefits
which have been rejected by the Union at the bargaining table 5 How-
ever, the Board has held that this rule is applicable only where the
employer "acts in good faith in his relations with the union and en-
gages in genuine bargaining." 6 In view of the other violations of
the Respondent's bargaining obligation, which were found by the
Trial Examiner, and which we adopt (see below), we do not deem the
foregoing rule to be applicable here. Accordingly, we find, in agree-
ment with the Trial Examiner, that the Respondent violated Section
8 (a) (5) and (1) of the Act by granting a 5-cent wage increase on
August 15 and by refusing to'bargain thereafter about such increase.
2. The job-bidding procedure
The existing contract contained certain provisions relative to job-
bidding procedure. The Trial Examiner found that on August 17 the
Respondent unilaterally announced to the employees changes in such
procedure, thereby violating Section 8 (a) (5) and (1) of the Act. He
found that the announced procedure differed from the existing pro-
cedure in that (1) the new procedure provided for preference to the
"senior qualified" applicant, whereas the contract provides only for
preference to the senior applicant, and (2) the August 17 notice stated
that apart from the posting of a notice of vacancy, absent employees
would not be notified "separately" of such vacancy, notwithstanding
that the contract required that the Respondent make "reasonable
efforts" to contact absent employees who are entitled to fill a vacancy.
As to (1), the Respondent contends only that the existing contract in
effect provided for preference to the senior qualified applicant. How-
ever, it is clear from a copy of the contract in the record that seniority
is the only criterion for selection of an applicant for initial assignment
5 See N.L .R B. v. Crompton -Highland Mille, Inc ., 337 U. S. 217 , 224-225; Ewpo8ition
Cotton Mille Co , 77 NLRB 1162.
9 Herman Saueage Co., Inc., 122 NLRB 1618, 172, enfd . 275 F . 2d 229 (C.A. 5), rehearing
denied 277 F. 2d 793 (C.A. 5).
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to a vacancy.' As to (2), the Respondent contends that the mere
posting of a notice of a job vacancy on the plant bulletin board met
the requirement of the contract that the Respondent make "reasonable
efforts" to contact absent employees. We do not agree that this is a
proper construction of the contract. Since the contract already pro-
vided for posting of all vacancies, the "reasonable efforts" provision
would be meaningless unless it contemplated some action in addition to
posting.' Accordingly, we find, like the Trial Examiner that the Re-
spondent violated Section 8(a) (5) and (1) of the Act by unilaterally
changing the contractual job-bidding procedure on August 17 and-by
refusing to bargain thereafter about such change.
3. The refusal to bargain
As already related, the Trial Examiner found that the Respondent
violated Section 8 (a) (5) and ('1) of the Act by refusing to meet with
the Union on and after August 19. The Respondent contends that,
contrary to the Trial Examiner's finding, its negotiator, Lucas, did
not, on August 19, tell the Union that the Respondent would not meet
with it any more. However, we find insufficient basis in the record for
disturbing the Trial Examiner's resolution of credibility on this
point.
The Respondent contends further that it was willing to meet with
the Union after August 19, as evidenced by its letter of August 31,
offering to negotiate further with the Union through its counsel, and
that it did not implement this offer only because of the advice of
Commissioner O'Brian on August 31 that it suspend negotiation be-
cause of the alleged rival representation claim. However, the fact
that the Respondent on August 31 expressed a willingness to bargain
does not excuse its refusal to bargain on August 19. Nor does
O'Brian's advice constitute a defense to the refusal to bargain after
August 31. Such advice was apparently based on a misinterpretation
of the Board's rule that an employer may not lawfully bargain with
a union during the pendency of a representation claim by a rival
union.' Here there was no such claim on August 31. While another
union had failed a decertification petition on August 19, this did not
constitute a claim by that union that it represented the Respondent's
employees ; the petition sought only the decertification of the Charg-
ing Union as such representative. It was not until September 9 that
the other union filed a petition for an election to determine whether
7 The contract ( article VIII, section 2 ) provides in effect that the successful applicant
shall not receive a permanent appointment unless he satisfactorily completes a 30-day trial
period . However, the initial assignment to the vacancy is conditioned only on seniority.
6 We note also that applications were required to be filed during the 2-day posting period,
which made it essential that some notice be given to absent employees in a form more
expeditious than posting on a plant bulletin board.
9 Shea Chemical Corporation, 121 NLRB 1027.
THE PERRY RUBBER COMPANY 229
such union represented the employees. The Trial Examiner found
that even this petition did not affect the Respondent's duty to bargain
with the Charging Union, because the Respondent's unfair labor prac-
tices antedated such petition. We agree.
The Respondent contends further that even if it be found that it
refused to bargain, such refusal was justified by its good-faith doubt
of the Union's majority status. Such doubt was allegedly created by
the filing of the decertification petition on August 19. However, the
fact that Ganz as late as August 31 agreed to negotiate further, de-
spite the filing of such petition, is convincing proof that the petition
did not in fact cause him to doubt the Union's continuing majority
status. Moreover, his conegotiator, Lucas, testified that he did not
form the opinion that the Union ceased to represent a majority of the
employees until September 14, when some of the striking employees
abandoned the strike. Under these circumstances, we find that the
filing of the decertification petition did not cause the Respondent to
doubt the Union's majority status.
We find, therefore, that since August 19 the Respondent (except
for its offer of August 31) has refused to bargain with the Union,
thereby violating Section 8 (a) (5) and (1) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent The Perry Rub-
ber Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Unilaterally granting wage increases to its employees or chang-
ing any of their terns or conditions of employment, without first giv-
ing notice thereof to, and consulting with, Local Union No. 601,
United Rubber, Cork, Linoleum and Plastic Workers of America,
AFL-CIO, or refusing to bargain with said Union as the exclusive
bargaining representative of all the employees in the appropriate unit
set forth below :
All production, maintenance, factory clerical, and cafeteria em-
ployees at Respondent's Massillon, Ohio, plant, exclusive of office
clerical, professional employees, guards, and supervisors as defined in
the Act.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed to them by
Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Local Union No. 601,
United Rubber, Cork, Linoleum and Plastic Workers of America,
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AFL-CIO, as the exclusive representative of employees in the bar-
gaining unit aforesaid with respect to wages, rates of pay, hours of
employment, and other conditions of employment, and, if an under-
standing is reached, embody such understanding in a signed
agreement.
(b) Post at its plant in Massillon, Ohio, copies of the notice at-
tached hereto marked "Appendix." 10 Copies of such notice, to be
furnished by the Regional Director for the Eighth Region, shall, after
being duly signed by the authorized representative of Respondent, be
posted by it immediately on receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Eighth Region, in writ-
ing, within 10 days from the date of this Order, what steps Respond-
ent has taken to comply herewith.
30 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the Labor-
Management Relations Act, we hereby notify our employees that :
WE WILL NOT unilaterally grant wage increases to our em-
ployees or change their terms or conditions of employment,
without first giving notice thereof to, and consulting with, Local
Union No. 601, United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO, or in any like or related manner
refuse to bargain collectively with said Union as the exclusive
bargaining representative of our employees in the .bargaining unit
described below : provided, however, that nothing in the Board's
Order requires us to vary or abandon any economic benefit which
has been heretofore established.
WE WILL bargain collectively upon request with Local Union
No. 601, United Rubber, Cork, Linoleum and Plastic Workers
of America, AFL-CIO, as the exclusive representative of our
employees in the bargaining unit described below, with respect
to wages, rates of pay, hours of employment, and other conditions
of employment, and, if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is :
THE PERRY RUBBER COMPANY 231
All production, maintenance, factory clerical, and cafeteria
employees at our Massillon , Ohio , plant, excluding office
clerical, professional employees , guards, and supervisors as
defined in the Act.
THE PERRY RUBBER COMPANY,
Employer.
Dated-------------- -- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge duly filed , the General Counsel of the National Labor Relations
Board , for the Regional Director of the Eighth Region (Cleveland , Ohio ), issued a
complaint against The Perry Rubber Co . By amendment at the hearing the name of
this Company was changed in all the pleadings to show The Perry Rubber Company
which is herein called the Respondent or the Company . The complaint alleged that
the Respondent had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and ( 5) and Section 2(6) and (7)
of the National Labor Relations Act, as amended , 61 Stat. 136, herein called the
Act. The Respondent 's answer denies the allegations of unlawful conduct in the
complaint.
Pursuant to notice, a hearing was held in Canton , Ohio , on December 12, 13, and
14, 1960 , before the duly designated Trial Examiner . All parties were represented
by counsel and were afforded full opportunity to adduce evidence , to examine and
cross-examine witnesses , and to file briefs . Motions to dismiss made by the Re-
spondent at the close of the hearing are disposed of as hereinafter indicated. Briefs
filed by the General Counsel and the Respondent after the close of the hearing have
been carefully considered.
Upon the entire record in the case , and upon my observation of the witnesses, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent is an Ohio corporation engaged in the manufacture , sale, and
distribution of surgical and hospital rubber latex gloves with its offices and place
of business located in Massillon , Ohio . It annually ships finished products valued
in excess of $100,000 to points and places located outside the State of Ohio. It is
admitted and I find that the Respondent is engaged in commerce within the meaning
of Section 2(6) and (7 ) of the Act.
II. THE LABOR ' ORGANIZATION INVOLVED
Local Union No. 601 , United Rubber , Cork , Linoleum and Plastic Workers of
America, AFL-CIO, herein called the Union , is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Prefatory statement; the issues
On April 3 , 1959 , the Union was certified by the Board as the exclusive bargaining
representative of Respondent's employees in a unit consisting of all its production,
maintenance , factory clerical , and cafeteria employees at its Massillon, Ohio , plants,
exclusive of office clerical , professional employees , guards , and supervisors as de-
fined in the Act. The Respondent does not contest the appropriateness of the unit.
On July 7, 1959 , the Respondent and the Union entered into a collective-
bargaining agreement which , subject to a wage reopener, was effective from June 30,
1959 , to January 15, 1961.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 12, 1960, pursuant to the wage reopener provision of the contract, the
Union duly notified the Respondent that it wished to enter into negotiations for a
general wage increase . As will be discussed in the succeeding section, the Union and
the Respondent entered into a series of negotiating meetings starting about June 6,
1960, and ending about August 19, 1960.1
The pertinent allegations of the complaint charging the Respondent with having
violated Section 8(a) (1) and (5) of the Act are as follows:
8. Commencing on or about August 15, 1960, and at all times thereafter, the
Respondent did refuse and continues to refuse to bargain collectively with the
Union . in that:
(a) On or about August 15, 1960, Respondent unilaterally charged existing
wage rates applicable to employees in the bargaining unit . .
(b) On or about August 17, 1960, Respondent unilaterally effected changes
in the job bidding procedure applicable to employees . .
(c) On or about August 19, 1960, and at all times thereafter, the Respondent
has refused and continues to refuse to meet, discuss, and/or negotiate with the
Union with respect to rates of pay, wages, hours of employment, and other
terms and conditions of employment for said employees.
The Respondent's defenses to the above allegations are aptly summarized in its
brief. Thus, in regard to the basic allegation that it refused to meet and bargain
with the Union since August 19, 1960, the Respondent states as follows: "This is
denied by respondent and the evidence is somewhat conflicting. A question of fact
is therefore presented, but in addition thereto there are involved certain questions
of law, the respondent claiming that it had a legal right to refuse to meet with this
union without the presence of an official of the Federal Mediation and Conciliation
Service; that it was instructed by the Mediator to hold no more meetings after the
filing of an RD petition; that it had reason to believe that the Charging Party no
longer represented a majority of the employees in the bargaining unit. Underlying
this whole proceeding, moreover, is another legal question of paramount importance,
namely, did not the Charging Party concede that it was not the representative of
the employees in the bargaining unit when it entered into a consent agreement for
a National Labor Relations Board election, and did not that consent agreement
waive any claim of unfair labor practices which predated it?" 2
B. The negotiations
The principal negotiators for the Respondent were R. V. Ganz, vice president in
charge of operations, and Corliss M. Lucas, manager of personnel, industrial re-
lations, and industrial engineering.3 The Union was represented principally by
Fleet Perrine, field representative of the International Union, and Leo Talarico,
president of the Local Union and an employee of the Respondent. Various members
of the Union's negotiating committee also attended the meetings. Unless indicated
to the contrary, the negotiations discussed below are largely not in dispute.
At the first bargaining meeting, which was held on June 2, the Company asked
the Union to notify it of its wage demands in writing. At a meeting held on June 6
the Union handed the Respondent a letter bearing the same date in which the Union
made it known that it was requesting a 25-cent per hour wage increase. Confirming
its position at this meeting, the Respondent advised the Union in writing under date
of June 15 that it had carefully considered the wage request and stated that "we are
willing to negotiate some necessary changes to the agreement, and on this basis we
will be willing to negotiate further on the possibilities of a general wage increase for
our employees."
At a meeting held on June 22, the Respondent and the Union agreed that: (1) any
wage increase negotiated would be retroactive to and including July 12, 1960; and
1 All dates hereinafter indicated refer to the year 1960.
3 This defense is principally predicated upon the Board's decision in Louis Aiello, et al.,
d/b/a Aiello Dairy Farms, 110 NLRB 1365.
S New business interests purchased the Respondent Company on May 1, 1960, It. V.
Ganz was appointed to his present position of vice president on May 9, 1960, but he had
been employed by the predecessor company since 1954 on a consulting basis of approxi-
mately 40 hours per week. Lucas became affiliated with the Company on July 1, 1960.
However, he sat in on the meeting of June 22 and thereafter he participated in all the
negotiations. Prior to the unfair labor practices alleged herein, the new Company did
not question the Union's status as the collective-bargaining agent for its employees in the
certified bargaining unit.
THE PERRY RUBBER COMPANY 233
(2) that they would mutually observe the present contract on a day-to-day basis
after July 12, until contract changes could be made. At this meeting it was agreed
that a further meeting would not be held until the later part of July, this because
the plant would be shut down for a 2-week vacation period beginning on July 2,
and also because the Company wanted time to study the Union's wage demands.
Two days later, on June 24, the parties signed a written agreement to continue the
present contract on a day-to-day basis subject to termination upon a 24-hour written
notice.
The next bargaining meeting was held on July 25, and at this time the Respondent
offered the Union a 5-cent per hour general wage increase. At a meeting of the
union membership held on July 30, the membership voted to reject the Respondent's
5-cent wage offer and to authorize its executive board to call a strike whenever it
deemed necessary? The Respondent was notified of the Union's rejection of its wage
offer and of the strike vote at a bargaining meeting held on August 1. At this meet-
ing, according to the credited and uncontradicted testimony of Perrine, the Re-
spondent stated that it would add to its 5-cent wage offer if the Union would agree
to negotiate some further amendments to the contract .5 Perrine thereupon requested
the Respondent to prepare and submit a list of whatever contract changes it was
desirous of making and indicated that the Union would give its consideration to
such proposals when received.
By a memorandum of August 5, which the Respondent handed to the Union on
that date, the Respondent stated as follows:
In reply to your request , we,believe that the following subjects concerning
the Agreement require clarification and the resultant interpretations should be
reduced to writing:
1. Job Bidding procedure.
2. Temporary shifts of personnel for production and shipping require-
ments.
3. Adoption of a work measured incentive system, over a period of time.
4. Learning period, payment and procedure.
5. Formula for establishing the number of union representatives to be
recognized by the company.
6. Average hourly earnings.
7. Clarification of interpretations of Agreement:
(1) Opening statement.
(2) Article I.
(3) Article IV.
(4) Article V.
(5) Article VIII.
In addition, the wage increase offer and the retroactivity of same, as stated
in our letter of July 25, will be withdrawn after August 12. Furthermore, a
strike at any time shall immediately void any offer made prior to the date of
strike.
The above proposals were submited to the union membership at a meeting held
on August 6. Perrine testified that he pointed out to the membership that the
company proposals were not specific . However, according to Perrine , at this meeting
the membership authorized the negotiating committee to continue negotiations with
respect to the proposed contract amendments.
The next negotiating meeting was held on August 8. The parties agreed to certain
minor contract changes pertaining to the address of the Local Union and names
* While there is some dispute as to the manner in which this vote was taken , I regard
this as immaterial to the issues in this case . Upon all the evidence , however, I am satis-
fied that the substance of the vote indicated the results stated above.
6 Concerning what was discussed toward future possibilities at this meeting, Lucas testi-
fied, "As I recall, Mr . Perrine asked : 'If that was the final offer by the Company 9' I said :
'No, it was not. It was not the final offer' However , that we would concede five cents
and that we would like to have time to come in, inasmuch as my job was to come in and
make time studies, job evaluations , and so forth That we didn't have proper cost data.
That we would like to have time to make a study and determine actually how the Company
stood as far as the cost picture before giving any further consideration But we would be
open to further consideration . That was undetermined ." Lucas further testified that at
this meeting the Respondent also requested the Union to negotiate further amendments to
clarify the contract.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all union representatives. Proposed amendments to the contract's grievance pro-
cedure also were discussed. The parties met again on August 11, at which time
Perrine handed to company representatives a two-page memorandum agreement
which, according to Perrin, reduced to writing certain changes in the contract's
grievance procedure provisions which he understood had been agreed upon at the
August 8 meeting. Perrin testified that when he handed the document to Lucas,
"He [Lucas] took it, just glanced at it and laid it aside." Indeed, Lucas conceded
that, "I probably glanced it over." When Lucas was asked whether the memorandum
agreement (which was never signed) in fact reflected matters which had been agreed
upon at the August 8 meeting, Perrine had testified, Lucas replied, "No, sir. Neither
party has the right to fully agree to anything. That is my understanding. It does
not become binding at that point. It is only preliminary agreement which is sub-
jected to further consideration by both parties." Although Lucas testified that at
the August 11 meeting other contract changes were discussed but not agreed to, I
credit Perrine's more specific testimony that at this meeting Respondent and union
representatives did agree to certain specific changes in the contract provisions dealing
with job bidding and job promotions It is undisputed that before the end of the
August 11 meeting the parties agreed to meet again on August 17 and 19.
On August 12, 1960, the Respondent handed to Leo Talarico, president of the
Local, a written memorandum advising that the Respondent was thereby terminat-
ing the contract which had been extended on a day-to-day basis. The memorandum
also advised the Union that: (1) the offer of a 5-cent per hour wage increase was
being withdrawn; (2) the offer of retroactive pay was being withdrawn; and (3)
that retroactive pay of 5 cents per hour would be paid for the work period from
July 12 to August 12. The memorandum stated also that the Respondent would
"be willing to negotiate a new contract whose terms and conditions are fair to all
the parties concerned."
On August 15, the Respondent, without notifying or consulting with the Union,
granted the employees a 5-cent per hour wage increase. The announcement was
made in the form of a bulletin posted on the employees' bulletin board and it also
stated that the employees would receive 5 cents per hour retroactive pay for the
period July 12 through August 12.7 A second employee bulletin, this announcing
the procedure to be followed for job bidding, was posted by the Respondent and
made effective on August 17. This notice was also posted without Respondent's
consulting with or notifying the Union.
It will be recalled that the parties had arranged for a negotiating meeting to be
held on August 17. Upon learning that Respondent had terminated the contract
arrangement, Perrine contacted Commissioner Edward O'Brian of the Federal
Mediation and Conciliation Service and O'Brian agreed to be present in his official
capacity at the August 17 meeting. In addition to O'Brian and the usual repre-
sentatives of the Union and the Respondent, this meeting was attended also by M. C.
Bonar, president of the Respondent, and Harley Anthony, assistant director of the
International Union. The meeting proved to be fruitless. The commissioner,
after reviewing the negotiations to date, met with both sides separately and together.
While details of this meeting are lacking, Perrine testified without contradiction that
at one point he requested the Respondent to state more specifically the contract
amendments which it was desirous of having. According to Perrine, O'Brian then
spoke up and stated, "I think Mr. Perrine is right in requesting amendments. How
do you expect the Union to agree to amendments when you won't tell them what
they are, what amendments you want?" Nevertheless, according to Perrine, the
Respondent did not clarify its position any further. Perrin further testified, and
again without contradiction, that at one point in this meeting he asked Lucas to
agree that certain of the contract provisions be retained and that Lucas assented
to these proposals. However, Perrin said that Ganz then spoke up and objected
to Lucas' voicing his agreement to these proposals. According to the credited and
undenied testimony of Perrin, Ganz then passed Lucas a note and from that point
on Lucas would agree to nothing further. Just before the end of the meeting O'Bnan
met with Bonar and Anthony alone. Anthony credibly testified, and without con-
tradiction, that at this time he told Bonar that he did not want to impose a hardship
on the Company, that he would be willing to negotiate certain changes in the last
9 I do not deem it necessary to set forth herein the specific contract changes agreed upon
at this meeting In crediting Perrine's testimony, above, I have taken into consideration
the fact that Perrine was able to refresh his memory with respect to specific wording
agreed upon from notes which he made at this meeting
P The employees received the 5-cent wage increase in their next pay envelope. The
raise continued In effect thereafter.
THE PERRY RUBBER COMPANY 235
contract which the Company might feel was objectionable . After conferring with
Bonar alone, O'Brian told Anthony that Bonar said he would "sleep on it" and that
he (O'Brian ) would try to arrange for another meeting.
Attempts by the conciliator to arrange for a meeting on August 19 seem to have
involved a series of misunderstanding . Ganz testified that at the conclusion of the
August 17 meeting "my impression was that there was going to be a meeting on
Friday [August 19] at 9 : 30." However, according to Ganz , he received a call
from Bonar on August 18 in which Bonar said that the August 19 meeting had been
canceled by O'Brian. Lucas , however, testified that he received a call from O'Brian
on the evening of August 18 and that they tentatively agreed to hold a meeting
at 2 p .m. on August 19. According to Lucas, O 'Brian stated that he would call him
at exactly 12 noon on the 19th to confirm the 2 p.m. meeting . Perrine testified that
he also received a telephone call from O 'Brian on the evening of August 18. Perrine
said that O 'Brianadvised him that there would be a meeting at the plant at 2 p.m.
on the next day. As a result of the latter call, Perrine appeared at the plant at 2 p.m.
on August 19, together with Anthony and the other members of the Union 's nego-
tiating committee.
There is a conflict in the evidence as to what occurred when the union repre-
sentatives came to the plant on August 19. It will be recalled that this is the date
which the General Counsel alleges that the Respondent failed to bargain in violation
of Section 8(a)(5) of the Act by refusing to meet with the Union . Perrin testified
that he and Anthony arrived at the plant at the same time on this date and that they
first met with the employee members of the negotiating committee . At this time
the latter employees pointed out the notices on the bulletin board announcing the
heretofore described wage increase and the procedure to be followed for job
bidding. Perrin said that they then proceeded down the hall and met Ganz. Per-
rine's version of what next transpired is as follows : Ganz first asked "What are you
folks doing here?" Perrin replied that he understood they were to have a negoti-
ating meeting. Ganz answered that he did not know about any meeting and he
thereupon left to get Lucas . Lucas thereupon came from his office and told the
union representatives that the meeting had been canceled . Perrine then said to
Lucas, "Well , whether it has been canceled or not , Mr. Lucas, we are here. Why
can't we sit down and start where we left off on the 11th and see if we could resolve
this?" To this Lucas replied , "I'm not going to meet with you any more." When
Perrine responded by saying that Lucas ' statement was a serious one, Lucas asked
the union representative to wait a minute and he went back into the office. After
about 10 minutes Lucas returned and advised the Union that the answer he had
given them was final and that he had orders not to negotiate with them any more.
Thus the testimony of Perrine . Without setting forth the testimony of other General
Counsel witnesses who testified concerning the events of August 19, suffice it to say
that Perrine's version of what transpired was corroborated in detail by Harley
Anthony and the three other members of the negotiating committee who witnessed
the discussions between Perrine , Ganz, and Lucas.8
As to the events of August 19, Lucas testified that at 2 p .m. he was advised by
Ganz that the union representatives were at the plant . 9 Lucas testified that he then
went out and spoke to Perrin , that he advised Perrine that no meeting was sched-
uled, and that they both "agreed that it was a misunderstanding." Lucas denied that
Perrin asked him to sit down and negotiate that afternoon and he also denied that
he advised Perrine that he would not meet and negotiate with the Union any more.
From my observation of the witnesses , and in the light of the entire record in this
case, I credit the mutually corroborative testimony of four General Counsel wit-
nesses which support Perrine 's version of what transpired on this occasion, as set
forth above. Accordingly , and particularly significant to the issues in this case, it
is found that on August 19, the Respondent broke off further negotiations by ad-
vising the union representatives that it would not then or in the future meet with the
Union for the purpose of negotiating a contract.10 No further meetings were held
thereafter.
8 These were Howard Blogna, Leo Talarico, and Julia Capoldi.
8It will be recalled that Lucas said O'Brian was to call him at 12 noon on August 19,
to confirm the 2 p.m. meeting on that date . Lucas testified that he left for lunch at
12 :25 without having received a call from O'Brian . He said that later in the afternoon
he found a message on his desk that O'Brian had called at 12:30.
10 Contrary to the apparent assertion of the Respondent, the Respondent did not advise
the Union that a basis for its refusal to meet on August 19 was the absence of Com-
missioner O'Brian
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Additional facts
On August 22, a decertification petition was filed by The Perry Rubber Associa-
tion Union , an independent labor organization herein called PRAU, in Case No.
8-RD-218 ( not published in NLRB volumes ). PRAU had been the representative
of Respondent 's employees sometime prior to the certification of the Charging Union.
The decertification petition was signed by Betty Hines , president of PRAU and an
employee who worked in Respondent 's laboratory . Lucas testified that he was
officially advised of the filing of this petition when he received a letter from the
Board 's Regional Office on August 24, but that earlier in the week he had heard
rumors that a rival union was being organized . Ganz testified that Betty Hines had
told him on August 19 that the decertification petition was being mailed . In this
connection, I think it of some significance to note that in addition to being a labora-
tory employee, Betty Hines, according to the testimony of Ganz, had assisted the
former management in the handling of its labor relations matters. Ganz testified
that Hines continued to participate in handling the Respondent 's labor problems until
as late as May and June 1960.
On August 24, Leo Talarico delivered a letter to the Respondent , signed by him
as president of the Local, which stated as follows:
In your letter of August 12, 1960, you stated that the five cents ( 5¢) wage
offer you had formerly made is now withdrawn.
This is to notify you we are requesting that you meet with us as soon as
possible for the purpose of negotiating a general wage increase.
On the same date, following delivery of the above letter, the Union called a strike.
On August 29, the Union mailed to the Respondent a letter identical to that which
Talarico had handed to the Respondent on August 24. In a letter signed by Ganz
dated August 31, 1960, the Company responded as follows:
This will acknowledge receipt of your registered letter of August 29, 1960.
We are willing to meet with you as soon as possible for the purpose of ne-
gotiating a general wage increase , and are turning over your letter to our legal
counsel from whom you should hear shortly.
Ben R . Burt, the Respondent 's attorney , testified that shortly after the strike be-
gan he called O'Brian with a view toward arranging further meetings between the
Respondent and the Union. O'Brian stated that he wanted several days to study
the matter. Burt testified , however, that on August 31 O'Brian called him and ad-
vised "that we had best stop all negotiations for the reason that there was another
group that had claimed representation. "
On about September 8, 1960, the decertification petition referred to above was
withdrawn, but in lieu thereof the same petitioner (PRAU) filed a representation pe-
tition on September 9.11 Pursuant to this petition, the Respondent , PRAU, and the
Charging Union herein entered into a consent-election agreement on September 12,
1960. This same petition was withdrawn on September 14; the consent agreement
was thereby nullified and the election was never held.
D. Respondent 's defenses; analysis and conclusions
As previously indicated , the Respondent on August 15 announced to its employees
that it was granting a 5-cent an hour general wage increase , and on August 17 it
posted a bulletin announcing the procedure to be followed by employees for job
bidding. The Respondent seeks to justify its unilateral wage increase by arguing
that an impasse had been reached , citing N.L.R.B . v. Crompton -Highland Mills, Inc.,
337 U.S. 217. However , the facts here are distinguishable from this and other
cases cited by the Respondents , 12 for it is clearly evident that an impasse had not
been reached in the instant case at the time the unilateral wage increase was granted.
It need only be pointed out that the undisputed facts show that on August 11 the
Respondent and the Union by mutual agreement had scheduled further negotiating
meetings to be held on August 17 and 19 . In view of the pendency of further bar-
gaining meetings on these dates , it is difficult to see how Respondent can claim
that an impasse had been reached on August 15, the date it announced the wage
increase to its employees . Indeed , the very fact that Respondent previously had
agreed to hold meetings subsequent to that date is in itself tantamount to an admis-
sion that an impasse had not been reached at the time the wage increase was granted.
"Case No. 8-RC-3999 (not published in NLRB volumes).
"Montgomery Ward & Co, Inc., 90 NLRB 1244; Economy Stores , Incorporated, 120
NLRB I; N L R B. v. Andrew Jergens Co, 175 F 2d 130 (C A 9).
THE PERRY RUBBER COMPANY 237
Accordingly, it follows that by such conduct the Respondent violated Section 8 (a)( 1)
and (5) of the Act.13
What has been said concerning the Respondent's unilateral granting of a wage
increase is true also of its unilateral posting and changing of the job bidding pro-
cedure on August 17.14 Having taken such action without notifying or consulting
with the Union, I find that by such conduct the Respondent also violated Section
(a) (1) and (5) of the Act.
With respect to the allegation that the Respondent refused to meet with the Union
on and after August 19, which the Respondent denies, this factual matter previously
has been decided adversely to the Respondent. The basis for this finding has been
fully set forth in a preceding section herein and it will serve no purpose to restate
it here. It has also been found that on August 18 the Respondent advised the Union
that it would not negotiate with the Union any further. In view of the fact, as the
record clearly discloses, that at no time after August 18 did Respondent notify the
Union to the contrary, I cannot credit Ganz' testimony that he was willing to negoti-
ate with the Union until as late as the end of August.
The Respondent advances several defenses as justification for its admitted refusal
to recognize or bargain with the Union after August 31. Pointing to the fact that
a decertification petition was filed on August 22, Respondent in essence asserts that
such action gave it ground for doubting the Union's majority status. However, it
having been found that Respondent violated Section 8(a)(1) and (5) of the Act
prior to the filing of the decertification petition, it cannot be said that any alleged
disaffection of the employees was not caused by the Respondent's earlier unfair labor
practices.15 Respondent also cites a number of cases which hold that an employer
has a duty not to recognize any union when a question of representation is pending.
Without lengthening this report by citing or distinguishing all the cases cited by the
Respondent, suffice it to say that in those cases the employer had not engaged in
unfair labor practices equivalent to those herein found prior to the time the question
of representation had been raised. Those cases therefore are not applicable here.
Finally, reference has already been made to the Respondent's reliance upon the
decision of the Board in Aiello Dairy Farms, supra. In that case the Board held
that where a labor organization pursues its right to represent employees through the
utilization of the Board's election procedure at a time when it believes that the
employer has unlawfully refused to bargain, it cannot, after participating in the
election, pursue that right in a Section 8(a)(5) unfair labor practice proceeding. I
do not find that rule to fit the situation in the instant case. Thus, it will be recalled
that although on September 12 the Union entered into a consent-election agreement
with the Respondent and The Perry Rubber Association Union in Case No.
8-RC-3999, the petition was withdrawn 2 days later and the election was in fact
never held. Without belaboring this report with a discussion of the Board's
rationale in the Aiello case and other cases cited by the Respondent,16 I deem it
sufficient to point out that in each of those cases the Board's processes were invoked
to the fullest extent and that the representation proceedings therein involved culmi-
nated in the actual holding of an election.17 I have found no case which holds that
the mere agreement to a consent election is a bar to the processing of an unfair labor
practice charge filed under Section 8(a)(5) of the Act. Any extension or modifica-
tion of the rule in the Aiello case to the extent urged by the Respondent properly
would be a matter for the Board rather than the Trial Examiner to determine.
In sum , and for the reasons heretofore stated, I find the evidence to establish
that the Respondent violated Section 8(a)(1) and (5) of the Act by each of the
following acts and conduct: (a) its unilateral granting of a 5-cent hourly wage
increase to its employees on August 15; (b) its unilateral announcement and estab-
13 Lenglade Veneer Products Corporation, 118 NLRB 985, 988. See also Williamsburg
Steel Products Company, 126 NLRB 288.
14 Respondent contends that the posting did not change or modify the job-bidding pro-
cedure of the contract. I find no merit to this contention. Without dwelling upon the
subject, suffice it to say that: (1) The bulletin announcing the job-bidding procedure
gives consideration to the senior qualified applicant, whereas the contract gives considera-
tion to seniority only; and (2) the August 7 bulletin eliminated the contract's require-
ment that reasonable efforts be made to notify absentees of job vacancies.
It is also noted that the very subject of job-bidding procedure had been discussed as a
subject of collective bargaining at the August 8 and 11 negotiating meetings.
u See Ideal Roller & Manufacturing Co., 109 NLRB 282.
la Melvin Rupp, d/b/a Rupp Equipment Company, 112 NLRB 1315; Armstrong Tire
and Rubber Company, etc., 111 NLRB 708; Franchester Corporation, 110 NLRB 1391.
17 It hardly need be pointed out that the unions lost the election in each of these cases
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lishment of a change in the job bidding procedure on August 17; and (c) its breaking
off of bargaining negotiations and its refusal to meet with the Union on and after
August 19 , 1961.18
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondent set forth in section III , above, occurring in con-
nection with its operations described in section I, above , have a close, intimate, and
substantial relation to trade , traffic , and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
will recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact , and on the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The above-named Union is a labor organization within the meaning of Section
2(5) of the Act.
2. All production, maintenance , factory clerical , and cafeteria employees at Re-
spondent's Massillon , Ohio, plants, exclusive of office clerical , professional employ-
ees, guards , and supervisors as defined in the Act, constitute a unit appropriate for
the purpose of collective bargaining within the meaning of Section 9(a) of the Act.
3. Since April 3, 1959, the said Union has been and now is the exclusive repre-
sentative of all employees in the unit aforesaid for purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
4. By refusing on and after August 15 , 1960, to bargain with the Union to the
extent found above, Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (a) (5) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
18 As an additional defense for its refusal to meet with the Union after the end of
August, Respondent also refers to the conversation which its attorney, Burt, had with
Commissioner O'Brian on about August 31 wherein O'Brian purportedly stated that no
further negotiating meetings should be held with the Union because of the then pending
decertification petition . Whether or not reliance upon the Commissioner 's statement to
this effect would constitute a valid defense to a refusal to bargain allegation need not be
decided here, for this matter is predated by the 8 (a)(5) violations found above.
John Vilicich , Managing Owner, and Steve Vilicich , Nick Truta-
nich , Peter Marovich and Joe Marovich , Co-owners , Operators
of the Fishing Vessel Sun Beam and Fishermen 's Union Local
33, International Longshoremen 's & Warehousemen 's Union,
Petitioner. Case No. 21-RC-7209. September 20, 1961
DECISION AND ORDER
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Louis S. Eberhardt,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board
133 NLRB No. 36.