The Pierce Governor Co., Inc.

National Labor Relations Board - Board Decisions

Apr 24, 1967

164 N.L.R.B. 97 (N.L.R.B. 1967)

PIERCE GOVERNOR CO. 97
The Pierce Governor Company, Inc. and
International Union , United Automobile,
Aerospace and Agricultural Implement
Workers of America , AFL-CIO. Case
25-CA-2312.
April 24, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND JENKINS
On September 19, 1966, Trial Examiner Sidney D.
Goldberg issued his Decision in the above-entitled
proceeding, finding that 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 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.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner only to the
extent that they are consistent with this Decision
and Order.
The Trial Examiner found that Respondent,
commencing February 25, 1965, the first day of the
10(b) period,' violated Section 8(a)(5) of the Act by
continuously refusing to bargain with Local 9402 "as
an integral part" of the joint bargaining agent as to
(1) the effects of the removal of Respondent's plant
from Anderson to Upland, Indiana, and (2) the terms
and conditions of employment at the Upland plant.
In addition, the Trial Examiner found that the
economic strike, which began at Anderson on
November 6, 1964, was prolonged by the 8(a)(5)
conduct and was therefore converted to an unfair
labor practice strike on February 25, 1965. We do
not agree with these findings of the Trial Examiner.
As noted above, the International was certified in
1941 as the bargaining representative of production
and maintenance employees at the Anderson,
Indiana, plant of Respondent. Thereafter,
Respondent negotiated with the International and
Local 940 a series of agreements, the most recent of
which was terminated by, timely notice on
October 30, 1964. In the absence of satisfactory
progress in bargaining , the Union on November 6,
1964, initiated a strike, which was admittedly
economic at its inception, and posted pickets at the
Anderson plant.3
The parties continued negotiations at meetings on
November 16 and 20 and December 2 and 8, 1964,
but it was not until the meeting of December 16,1
1964, that Respondent brought up the subject of
moving its Anderson plant to a new location. At that
time, Respondent's chief negotiator, Donald F.
Strutz, referred to the Union's earlier criticism of the
Anderson plant as "unsafe and unhealthful," and
stated that Respondent concluded it would be
"economically advantageous" to move about 40
miles away to the community of Upland, Indiana.
Strutz then suggested a temporary cessation of
negotiations on a new bargaining agreement to
permit the Company to talk with Upland officials
about making the move. Strutz added that should the
move be made, each employee presenting himself at
the new plant would be given full consideration for
reemployment and, if hired, would retain his
seniority. With respect to recognition of the Union as
the bargaining representative of the employees at
Upland, Strutz stated that recognition would be
dependent upon proof of representation.
International Representative Raymond Shetterly
expressed surprise at Respondent's announcement
and, after conferring with other officials of the
Union, stated that the Union wished to bargain for an
agreement on (1) the operation of the Anderson plant
so long as it remained at that location and (2) the
effects on the Anderson employees of a transfer of
the Company's operations to any other community.
The parties met again on December 22, 1964, and
discussed a contract for the Anderson plant. When
the Union proposed a provision prohibiting removal
of the plant during the life of such a contract,
Respondent conditioned its agreement to this
proposal on a provision giving Respondent the right
to terminate such a contract upon 30 days' notice of
its election to locate the plant outside Anderson.
Shetterly then asked that Respondent " guarantee"
the transfer of all Anderson employees to the new
location. In reply Respondent renewed its offer of
December 16 to give consideration to Anderson
employees who applied at the Upland plant for
employment, with retention of seniority for all those
i Sec 10(b) provides in part that "no complaint shall issue
based upon any unfair labor practice occurring more than six
months prior to the filing of the charge with the Board "
The initial charge in the instant case was filed on August 25,
1965
' Although only the International was certified in 1941 for the
employees at Respondent 's Anderson, Indiana, plant , both the
International and its Local 940 have since jointly negotiated
agreements with Respondent.
I Pickets were later stationed at Upland.
164 NLRB No. 2
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hired. In refusing to guarantee the transfer of all
Anderson employees, Respondent took the position
that (1) certain employees were physically unable to
do a full day's work because of age, (2) other
employees, albeit physically able, had not been
"delivering a fair day's work," and (3) still others
had become unfitted for further employment with
Respondent because of their attitude during the
strike. The parties then specifically referred to and
discussed several employees in the first category.
The next bargaining session was held on
December 31, 1964. Shetterly offered to have the
Union bring in an "economic proposal to hold the
[Anderson] plant in town." In reply Respondent
advised the Union that it had already directed a
contractor to start construction of a new building at
Upland on January 4, 1965.4 In the course of
bargaining , the parties reached a tentative
agreement on the terms of a seniority provision
which dealt with various aspects of that subject.
Shetterly renewed the Union's demand for a
Respondent guarantee of transfer rights for all
Anderson employees and Respondent again offered
to consider for employment any applicants from
Anderson and to preserve the seniority of those
selected. In addition, Respondent stated its
willingness to give severance pay to those who were
not hired. Respondent also assured Shetterly that as
of that time no jobs had been "promised" to the town
of Upland. The meeting ended without resolution of
the transfer issue.
The parties met again on January 9, 1965, when
the Union was represented by International
Representative Carl Parker and the Local 940
bargaining committee. Parker, who indicated that he
did not want to bargain for an interim contract for
the Anderson plant , asked Respondent to bargain on
pay rates at the Upland plant. Respondent replied
that it was not obligated to bargain with the Union
concerning pay rates for Upland employees who had
a right to choose their own bargaining agent . Parker
then insisted on going down the Anderson list and
discussing "person by person" who would be going
to Upland. Respondent refused to do so, explaining
that it had no information on how much business it
would have at Upland. However, Respondent
reiterated its earlier offer to give consideration to
Anderson applicants, with seniority for those hired
and separation pay for employees not transferred.
The next meeting was held on January 19,1965, in
the presence of a Federal mediator, with
Respondent represented by its vice president,
LeRoy V. Bradnick, and the Union by Shetterly and
the Local 940 bargaining committee. The parties
' The new plant became available for occupancy in April 1965
However, Respondent began production about January 1965 in
rented quarters at Upland Except for one production employee,
who had started work at Anderson during the sttke, it appears
that Respondent staffed the Upland location with newly hired
production and maintenance employees , their number increasing
from a few in February to 100 at the end of April, about 153 by
decided that further negotiations were useless and
agreed to the mediator' s suggestion that they
designate subcommittees which excluded Bradnick
and Shetterly.
Such subcommittee meetings were held on 3
successive days in the latter part of January 1965,
with the Federal mediator present on the latter two
occasions. On January 20, considerable time was
spent by Respondent's representatives convincing
the subcommittee of three Anderson employees that
Respondent was serious in its intention to move the
plant to Upland. The employee subcommittee then
demanded a discussion of each employee on the
Anderson seniority list to ascertain those desiring to
go to Upland. When two members of the employee
subcommittee stated that they would under no
circumstances transfer to Upland, Joseph E.
McDonald, Respondent's treasurer and assistant
secretary, pointed out that "it seemed ridiculous" to
go down a seniority list of 180 employees to discuss
the prospects of those Anderson employees who
would not be interested in a transfer.
On January 21, Respondent offered immediately
to declare the Anderson plant closed in order to
enable the employees to draw unemployment
compensation. Respondent also offered to go to the
"Federal Unemployment Service" to try to secure
other jobs for the Anderson employees under what is
known as the "Studebaker System." Respondent
stated further it would attempt to increase severance
pay for Anderson employees by using for that
purpose the surplus in the pension fund. On
January 22, the employee subcommittee informed
Respondent that its proposals were unacceptable.
An understanding was then reached by the parties
that any future meetings would be called through the
Federal mediator.
The next meeting was held at the office of the
Federal mediator on the morning of January 26,
1965, at the request of Shetterly who advised
Respondent that the regional director of UAW
Region 3, Raymond H. Berndt, would like to meet
with Respondent's president, Leland E. Boren.
Representing Respondent were Boren, Bradnick,
and Thomas D. Logan, the Company's "corporate"
counsel. The union representatives were Shetterly
and Berndt. Logan stated that he had no authority to
bind Respondent in the absence of Strutz who was in
Florida. According to Shetterly, Boren told him that
"Local 940 could not bargain for the people in
Upland ... that ... Shetterly couldn't be the
representative that negotiated the contract in
Upland, and ... the people in Anderson would not
be given transfer rights as such."5 After 2 hours of
early July, 212 at the end of August, and at least 190 at all times
since August 1965
5 According to Boren, Shetterly stated that while the latter did
not expect Respondent to transfer all Anderson employees to
Upland, "Respondent must go through the senionty list" to
bargain with respect to the suitability of each Anderson employee
for Upland employment
PIERCE GOVERNOR CO. 99
discussion, the meeting ended at noon with Berndt
indicating that "nothing much was being
accomplished," and suggesting a meeting after
lunch between him and Logan. At their afternoon
meeting, Logan and Berndt agreed that neither of
them was in a position to talk about particulars but
would explore the issues on a purely personal basis
in the hope of coming up-with solutions that might
later be useful. Berndt stated, and Logan agreed,
that the "economic make-up" of the Upland area
and its distance from Anderson were such that it was
a mistake to let the negotiations "bog down" in a
discussion of transfer rights. Berndt then expressed
the opinion that the "important thing" was
representation by "some local of the UAW." Logan
replied that he could see the advantages of UAW
representation and suggested that they talk along
that line, keeping in mind that it was relatively
academic to discuss transfer rights in view of
Berndt's opinion that very few of the union
employees at Anderson would care to come to
Upland. They proceeded to discuss the possibility of
a contract without a provision concerning transfer
rights and with a new 1JAW local. The_' meeting
concluded with Berndt handing Logan for his study
a copy of a contract that the UAW had with another
employer in Huntington, Indiana. A day or two later,
Berndt telephoned to ask Logan to send a letter
confirming their conversation.
On January 28, 1965, Logan wrote Berndt a
lengthy letter which began with the following
"restatement of ... position":
That we are not obligated to recognize Local 940
and are unwilling to recognize [it] for any
purposes pertaining to employment at any
location other than that at Anderson. However,
we are willing to discuss the possibility of being
able to enter into an agreement with some union
at the Upland location. If we could arrive at
some agreement with you, I think we would be
willing to make that applicable to whatever local
you think best and recognize as much as we can
the equities of employees who have been
employed at the Anderson plant.
Logan then indicated Respondent's willingness to
recognize "a UAW-CIO Local at Upland" for a 5-
year contract. However, Logan cautioned Berndt
that Respondent was "not willing to recognize .. .
Shetterly and his bargaining committee" with
respect to Upland.
In addition, Logan stated that Respondent "will
bargain [sic] each individual on the seniority list for
employment at Upland, taking into account (1) their
qualifications for the work, (2) physical condition,
(3) mental outlook and attitude, (4) absentee record,
and (5) job openings." Logan also expressed
Respondent's willingness to give severance pay to all
employees with a minimum of 10 years' service if
they desired employment at Upland but were not
selected therefor. The letter further proposed a
contract provision setting forth, in detail, job titles,
entry rates of pay, and subsequent automatic
increases. Finally, Logan stated, "you might ...
propose a formal contract which I promise to take up
immediately" with the Company's board of
directors.
On February 15, 1965, Berndt wrote Logan that
his reply had been delayed until that date because
he had been out of town for about a week and was ill
the following week. Berndt expressed his
appreciation of Logan's "recognition of the problem
existing with respect to ... [the] employees at [the]
Anderson plant and their plight in your moving ... to
a new plant at Upland . . . ." Berndt concluded that
he hoped "within the next couple of days" to
comment on Logan's letter "point by point" and to
advise him further "with respect to [Logan's] basic
suggestions ... relative to UAW recognition" at the
Upland plant.
On March 9, 1965, Logan sent another letter to
Berndt pointing out that the latter had not yet
commented on his letter of January 28. Logan stated
that he therefore "assumed" that none of
Respondent 's suggestions were acceptable to
Berndt and Respondent was accordingly
withdrawing them and "revert[ing]" to its "former
position." Logan concluded with the statement, "We
cordially invite your suggestions or comments as to
where we go from here."
On March 10, 1965, Berndt telegraphed Logan,
explaining that he had not been in his office on a full-
time basis for the past few weeks, that he had
prepared a detailed answer to Respondent's letter of
January 28 prior to the receipt of Logan's March 9
letter, and expressing the hope that Logan would
"review" his answer in the light of the date of its
preparation.
Berndt in his letter, dated March 10, indicated
acceptance of most of Respondent's proposals.
However, Berndt expressed reservations or
disagreement with regard to some of the proposals.
Thus, Berndt stated that the proposed wage rates
were unacceptable to the Union. Berndt also stated
that Respondent's proposal "that the Company and
the Union bargain on the individual availability of all
employees presently on the seniority list for
employment at Upland was acceptable" so long as
"physical shortcomings" already in existence at the
time of the closing of the Anderson plant and the
"mental outlook and attitude" displayed by some
employees since the beginning of the strike would
not be used to prevent their employment at Upland.
Berndt also pointed out that " it is the Union's
prerogative to assign the Local Union number to any
UAW bargaining agent" and Respondent "should
not attempt to presume to tell the Union who [it]
should send to the bargaining table." However,
Berndt conceded it would be "somewhat
shortsighted for the Union to assign an individual
that would only result in stalemates rather then
298-668 0-69-8
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fruitful negotiations." Finally, Berndt suggested
another meeting to settle their dispute.
Respondent did not reply to Berndt's March 10
letter, and the Union made no further request for a
meeting during the next 3 months.
Communication between the parties was resumed
on June 2, 1965, when Shetterly met Bradnick and
Strutz at an unemployment compensation hearing in
Anderson involving claims of the striking employees.
During a recess, Shetterly suggested to Strutz that a
meeting be arranged for the purpose of discussing
(1) transfer rights and (2) pensions for employees
who had reached retirement age during the strike.
Strutz replied that he would be happy to meet with
Shetterly any time the Federal mediator arranged a
meeting.
On June 15, 1965, Strutz and MacDonald met in
the presence of a Federal mediator with Shetterly
and members of the Union's pension committee.
After the parties discussed and settled the matter of
pensions, the mediator asked if there had been any
further progress in negotiations between the Union
and Respondent, and was informed that no meeting
had taken place since the early part of the month.
Shetterly declared that there were only about 75
employees in the picket line and that only about 50
percent of them would be interested in going to
Upland. He then asked if the meeting could be
continued to discuss transfer rights of Anderson
employees. When Strutz inquired whether it was
still Shetterly's position that any future meeting of
the parties was contingent upon Strutz agreeing to
discuss transfer rights, Shetterly replied that,
although he would "not make it conditioned upon
that," the topic of transfers was nevertheless what
he wished to talk about. Strutz indicated he would
arrange a meeting if Respondent decided to have
one.
On June 30, 1965, Shetterly at another
unemployment compensation hearing again asked
for a meeting to discuss the transfer of Anderson
employees to the Upland plant. Strutz replied that a
meeting would be arranged through the mediator if
Respondent desired one.
The unemployment compensation hearing held on
August 17, 1965, provided the next occasion at
which Strutz and Shetterly met and again restated
their positions regarding transfers and recognition of
the Union for Upland. Strutz stated that he would get
in touch with the Federal mediator. Three days later,
Shetterly wrote Strutz requesting a meeting
concerning "the movement of the [Anderson] plant
to Upland . . . ." Shetterly wrote that "there are no
conditions attached to my request for a meeting,
merely that we bargain concerning the transfer
rights of the Anderson employees, recognition of our
Union at the Upland plant and the terms, working
6 According to Strutz, Shetterly estimated that after eliminating
certain employees who had reached retirement age, those who
could not pass physical tests, and those who had obtained other
conditions and wages" at the Upland plant. Upon
receiving no reply to this and another letter written
to Strutz on August 30, Shetterly on September 15
addressed his request for a meeting on transfer
rights to Boren.
Boren replied on September 17, taking the
"position that under the law and the contract that
expired on October 31, 1964, the employees at
Anderson who continued on strike against the plant,
have no rights concerning re-employment at the
Company's Upland plant." Boren offered to meet
with the Union but insisted that Respondent was not
obligated to bargain "concerning transfer rights
which do not exist."
Shetterly's answer to Boren on September 28
suggested that a meeting be held during the week of
October 11 or any other convenient date. This time
Strutz replied on October 5, repeating Respondent's
refusal to bargain concerning transfer rights and
expressing a willingness to meet but not setting a
date. Shetterly's letter of October 14 again
requested a meeting to bargain about transfer rights.
Strutz wrote on October 19, offering to meet and
taking the position that "until such time as you may
become the certified bargaining agent of our
employees at Upland or at such time as we are
convinced that you represent the majority of our
employees at Upland, we can not consider your
request for bargaining."
Toward the end of November 1965, Strutz met
with Shetterly and Roy Cantrell, assistant regional
director of the UAW, in the Federal mediator's
office. Shetterly noted that there were still about 40
people drawing strike benefits and that these
employees, if physically capable of working, as well
as some others who were working for another
employer, would probably wish to take jobs at
Uplands Shetterly proposed that (1) Anderson
employees considered by the Company to be unable
to perform their jobs should be given a physical
examination at a competent medical clinic and
approved or disapproved on the basis of comparison
with normal persons of the same age; (2) other
employees whose physical capacities were not in
question should be given rights to jobs at Upland,
bumping, when necessary, employees newly hired at
Upland; (3) the International and Local 940 or some
other UAW local selected by Upland employees
should be recognized as the bargaining
representative of the employees at Upland and a
contract negotiated to cover wages and working
conditions at that plant. Strutz suggested in reply
that the parties use an independent arbitrator to
determine through "objective standards" which
employees should be offered jobs at Upland. After
the meeting, Shetterly telephoned Strutz to inform
him that the Union could not agree to his proposal.
employment , only 40 to 50 employees would be interested in
transferring to Upland
PIERCE GOVERNOR CO. 101
A final meeting , which was attended by Strutz,
Shetterly, Berndt , and Emil Mazey , secretary-
treasurer of the UAW, was held on February 4, 1966,
in Detroit , Michigan . No progress was made as the
parties professed to be waiting for an offer from each
other.
It is clear ffom the foregoing that the parties, who
had a long history of successful bargaining , dating
back to 1941, concentrated on two basic issues at
their meetings and in their correspondence from
December 1964 to February 1966, namely,
(1) transfer of Anderson employees and
(2) recognition of the Union for the employees at the
Upland plant . As noted above, these themes
emerged at the meeting of December 16, 1964, when
Respondent announced to the Union that it was
contemplating moving from its "unsafe and
unhealthful" plant in Anderson , Indiana , to a new
location in Upland, Indiana.
That Respondent was willing from the outset to
discuss the subject of the effects of the move on
Anderson employees and their transfer to Upland is
evident from its proposal at the first meeting when
this topic became an issue. Thus, as indicated
above, Respondent stated on December 16, 1964,
that , if it made the move to Upland, it would consider
for transfer each Anderson employee who applied at
the new plant , with seniority preserved for those
hired . When Respondent met with Union
Representative Shetterly on December 22 and 31,
1964, the parties again discussed the subject of
transfer . Shetterly on both occasions requested from
Respondent a "guarantee " to transfer all Anderson
employees and Respondent explained why such a
transfer would not be feasible and renewed its offer
to consider Anderson applicants in the light of their
qualifications for employment at Upland and to give
severance pay to those not hired.
The transfer issue continued to be a key subject of
bargaining at the four meetings held between
January 9 and 22, 1965. The Union insisted on
discussing the transfer of each employee on the
seniority list, but Respondent refused to do so on the
ground that it did not at that time know how much
business it would have at Upland and also that it was
"ridiculous " to discuss the transfer of those
Anderson employees who did not care to go to
Upland. However , Respondent again offered to
consider Anderson applicants and promised
seniority to those hired and separation pay for those
not taken on at Upland.
The transfer issue was again fully explored by
Respondent and the Union at the two bargaining
sessions on January 26, 1964. It is significant that
Union Representative Berndt , who stressed
recognition of "some local of the UAW" for the
Upland plant as the paramount issue, took the
position that "the economic make-up " of the Upland
area and its distance from Anderson made it
' The Procter & Gamble Manufacturing Company, 160 NLRB
inadvisable to allow the transfer issue to "bog down"
the negotiations . It is also noteworthy that
Respondent ' s Representative Logan agreed that it
was relatively academic further to discuss the
transfer issue in view of Berndt 's statement that
very few of the Anderson employees had a desire to
go to Upland.
Despite Berndt ' s position that the transfer
question was no longer a high priority issue,
Respondent ' s continued attention to this subject was
demonstrated by its letter of January 28, 1965,
which , inter alia, set forth its willingness to bargain
with the Union as to each individual on the Anderson
seniority list for employment at Upland , taking into
account their qualifications for the work , physical
condition , mental outlook and attitude , absentee
record , and job openings at Upland . Although
Respondent , in the absence of a reply from the
Union, reverted to its earlier position on transfers,
the Union finally replied on March 10, 1965, when it
declared Respondent ' s proposal generally
acceptable but questioned some of the criteria set
forth by Respondent.
The parties engaged in intensive and hard
bargaining at a series of meetings and through an
exchange of correspondence for a 3-month period
extending into March 1965 . It is plain that during
that time they fully dealt with the transfer issue.
Although Shetterly on two occasions in June 1965
requested that bargaining resume on transfer rights,
Respondent took no steps to arrange a meeting for
that purpose . However , when the parties did meet in
mid-August of 1965 , they merely restated their well-
defined positions developed at the many earlier
meetings. While Respondent on September 17,
1965, wrote the Union that it had no obligation to
bargain concerning transfer rights, Respondent did
in fact thereafter discuss transfer rights and
proposed that an arbitrator determine through the
use of objective standards which employees should
be offered jobs at Upland.
We conclude on the basis of Respondent's
conduct during frequent meetings and
correspondence with the Union that Respondent met
its obligation to bargain with the Union concerning
the effects of the move to Upland on Anderson
employees and their transfer to the new plant.
Although many of these meetings and the exchange
of a number of letters took place in the months prior
to February 25, 1965, the first day of the 10(b) period,
the positions taken during that time continued and
were restated by Respondent and the Union
subsequent to February 25, 1965. While the parties
did not reach complete agreement on the transfer
issue, the record shows that Respondent over a
period of many months considered the Union's
position , explained its own position , and made
counterproposals as well as some concessions.'
Although bargaining by both parties dwindled
334
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considerably after March 1965, we regard that as an
indication that bargaining was approaching an
impasse when both parties became more or less
frozen in their positions regarding transfers. Accord-
ingly, in the circumstances of this case, we find,
contrary to the Trial Examiner, that the General
Counsel has not proved by a preponderance of the
evidence that Respondent failed to bargain with
respect to the effect on Anderson employees of
the move to Upland.
As noted above, the second basic issue frequently
discussed by the parties was recognition of the
Union for the Upland plant. The Trial Examiner
found that the removal of the plant from Anderson to
Upland, a distance of 32 miles, had no greater
significance than a removal across the street and
that the move therefore effected no substantial
change in the status or obligation of Respondent
toward its employees or the Union which was their
bargaining representative. Accordingly, as already
stated, the Trial Examiner held that Respondent was
under an obligation to bargain with the Union
concerning the terms and conditions of employment
at the Upland plant. Respondent does not dispute
the Trial Examiner's finding that it refused to
recognize the Union as the representative of the
Upland employees. It contends, however, that the
Trial Examiner erred in finding such conduct
unlawful by not taking into account this test for
determining whether Respondent was under a duty
to recognize the Union for the new plant: Would at
least a majority of the Anderson employees have
transferred to the new plant but for Respondent's
failure to negotiate concerning the effects of the
move?"
We find merit in Respondent's argument. As we
have found insufficient warrant for concluding that
Respondent did not meet its obligation to bargain
over the effects of the move, there can be no basis
for attributing the failure of Anderson employees to
transfer to Upland to any unfair labor practice on the
part of Respondent. Moreover, it is clear from the
record that at no time during the bargaining over the
effects of the move did a majority of the production
and maintenance employees represented by the
Union at Anderson have an interest in transferring to
Upland. Accordingly, we find, contrary to the Trial
Examiner, that Respondent was under no obligation
to bargain with the Union concerning terms and
conditions of employment at the Upland plant.
As noted above, the Trial Examiner also found
that the economic strike, which commenced on
November 6, 1964, was converted into an unfair
labor practice strike by Respondent's refusal to
bargain. As we have found that Respondent engaged
in no conduct that violated Section 8(a)(5) of the Act,
we conclude, contrary to the Trial Examiner, that
such conversion did not take place at any time.
In view of our conclusion that Respondent has not
committed any of the unfair labor practices alleged
by the General Counsel, we shall dismiss the
complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
8 Cooper Thermometer Company, 160 NLRB 1902
TRIAL EXAMINER'S DECISION
SIDNEY D. GOLDBERG, Trial Examiner: In this
proceeding, under Section 10(b) of the National Labor
Relations Act, as amended (herein called the Act), the
complaint' alleges that Respondent, in violation of Section
8(a)(5) and (1) of the Act, has failed and refused to bargain
with the Charging Party (herein called UAW or the
International), and its Local 940 (herein called the Local),
as the joint collective-bargaining representative of its
employees and has refused to bargain with them over the
effect on such employees of the removal of Respondent's
plant from Anderson, Indiana, to Upland, Indiana.
Respondent answered, denying practically all the
allegations of the complaint. A hearing on the issues so
raised was held in Marion, Indiana, from February 28 to
March 3, 1966, before Sidney D. Goldberg, duly
designated as Trial Examiner herein, at which all parties
were represented, afforded an opportunity to adduce
evidence, cross-examine witnesses, and argue upon the
law and facts. Briefs subsequently filed by the General
Counsel and by counsel for Respondent have been
considered.
For the reasons hereinafter set forth in detail, I find that
the International and the Local, jointly, were and are the
collective-bargaining representative of Respondent's
employees in an appropriate unit and that Respondent has
unlawfully refused to bargain with them concerning
wages, hours, and other conditions of employment and,
specifically, over the effect on such employees of the
transfer of Respondent's operations from Anderson to
Upland.
Upon the entire record in this proceedingz and the
demeanor of the witnesses, I make the following:
FINDINGS OF FACT
1. THE EMPLOYER
Respondent has been engaged for many years, formerly
at Anderson and now at Upland, Indiana, in the
manufacture and sale of automotive parts. Between 1957
and 1964, it was also the parent company in a complex of
corporations but its manufacturing operation has
continued unchanged for many years. It admits that,
during the calendar year 1965, it imported materials
valued at more than $50,000 and that it is engaged in
commerce within the meaning of the Act. I so find.
' Issued December 21, 1965, on a charge filed August 25, 1965,
and an amended charge filed September 28, 1965
2 The following typographical errors in the transcript are
hereby corrected On p 11,1 9, the word " not" is changed to read
"now" and on p 24,1 6, the word "provides" is inserted following
the word "statute "
PIERCE GOVERNOR CO. 103
It. THE LABOR ORGANIZATIONS INVOLVED
In 1941 the International was certified, by the Board's
Regional Director for Region 11, as the "exclusive
bargaining agency" of Respondent's production and
maintenance employees.3 Since that time there have been
collective-bargaining contracts continuously in effect
between Respondent, as employer, and the International
and its Local 940, jointly (herein called the Union), as
the "exclusive bargaining agency" for the employees, the
last one having expired October 30, 1964. Subsequent to
that date and well into 1965, Respondent carried on
negotiations for a collective-bargaining contract with the
Union. I find that the Union, as well as the International
and the Local, are labor organizations within the meaning
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and Chronology
1. Introductory
Despite the volume of testimony herein-much of it
pertaining to matters not truly in issue-the relevant facts
of this case are not seriously in dispute . In view of the fact
that the original charge herein was filed on August 25,
1965, any findings of unfair labor practices on the basis of
Respondent 's activities are limited , by Section 10(b) of the
Act, to those which occurred on or after February 25, 1965,
and the substantial amount of material in the record which
deals with occurrences prior to February 25, 1965, was
offered-and can be considered-only "to shed light on
the true characters of matters" occurring subsequent to
that date .4 There is also, unfortunately , a substantial
amount of additional material in the record which deals
with matters not in issue , either because they are not
presented by the pleadings or because the matters
themselves were never disputed.
2. Background
As stated, the Union was certified in 1941 and there
were contracts between Respondent, as employer, and the
Union, as the representative of the employees, in effect
until October 30, 1964, when the last one was terminated
by timely notice.5 Bargaining , which had-commenced prior
to the terminal date of the contract, continued without
satisfactory progress and, on November 6, 1964, the Union
declared a strike, posting pickets at the plant, which was
then still at Anderson. This strike was, at its inception,
admittedly an economic strike and it was, at the time of
the hearing of this proceeding, still in effect.
3. Chronology
Although the course of Respondent's bargaining with
the Union and the process of its removal of its plant from
Anderson to Upland have separate chronologies and could
be separately stated, they are contrapuntal in effect and
such separate statements would, therefore, inadequately
show their interrelation.
The plant at Anderson consisted of a group of about six
buildings, the oldest part of which had been built about
1900. Its dilapidated condition was notorious, so much so
that one of the Union's key demands were a contract
recognition of its right to strike over conditions of health
and safety in the plant .", During the bargaining sessions in
December 1964, references were made to the possibility
that Respondent would construct a new plant, not
necessarily at Anderson. At the negotiating meeting of
December 16, 1964, part of which was taken down
verbatim by a reporter, Respondent's chief negotiator,
Donald F. Strutz, opened by stating that the Union's
bargaining committee had brought the Company's
attention to "the terrible defects of the plant including the
odor problem, the heating problem, the leaking roof and
the defective wiring and plumbing."7 He stated that
several communities had made offers to induce
Respondent to move into them and that such offers had
been given consideration. He noted that Upland, Indiana,
within 40 miles from Anderson, had made the most
attractive offer and that Respondent had concluded that it
would be "economically advantageous" to move there. He
suggested that the parties "temporarily discontinue
negotiations on the new labor agreement to permit us to
spend as much time as is required to negotiate fully the
possibility of the Company making such a move." He also
stated that "should such a move be made, each employee
will be given full consideration for reemployment if he
presents himself to the new plant and if hired, will retain
his full seniority." With respect to recognition of the Union
as the collective-bargaining representative of the
employees at Upland, however, he stated that such
recognition would be dependent upon proof of such
representation.
The Union's spokesman, International Representative
Ray Shetterly, expressed surprise at the Company's
announcement, stating that he had supposed they were
bargaining for a contract at the Anderson plant to take the
place of the one which had expired, and he called for a
recess to discuss this new development with his
bargaining committee. After the recess, the meeting
resumed without the reporter. Shetterly made it clear that
the Union wished to bargain for an agreement on two
subjects: (1) the operation of the plant at Anderson as long
as it remained there and (2) the effect on the employees of
S Case XI- R-486 . The unit is described as follows:
All production and maintenance employees excluding
foremen , assistant foremen , superintendents , confidential,
salaried , clerks, office and drafting room employees.
" Local Lodge No. 1424, I.A.M. (Bryan Manufacturing Co.) v.
N.L.R.B., 362 U.S. 411, 416.
5 The contract which terminated October 30, 1964, described
the unit as:
. all the Company' s employees , except foremen, assistant
foremen, superintendents, confidential salaried office, Test
Room , and Engineering Department employees, plant
guards, and clerks,...
This unit, I find, was and is an appropriate unit for the purpose of
collective bargaining.
N It was stipulated that, as of September 1, 1964. the physical
condition of the plant at Anderson, Indiana, had deteriorated to a
point where the continued operation without proper repair and
remodeling created unsafe and unhealthful working conditions
which the Union requested be remedied. This resulted in the
Union demand that a failure to repair the unsafe conditions of the
plant within twelve days' notice thereof would become the subject
of a right to strike, health and safety grievances for the duration of
the proposed labor agreement . That such strike must be approved
by the Regional Director of the UAW-CIO."
7 The accuracy of the written report is not questioned by any
party herein.
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a transfer of the Company's operations to any other
community. Respondent then stated the terms of a
contract it would sign covering the interim operation of the
Anderson plant. These included the right to terminate
such agreement on 30 days' notice of the Company's
election to locate its plant outside Anderson and the
removal of any restrictions on subcontracting, avowedly
"to facilitate removal of plant."
Several meetings were held, later in December and
through January, without significant progress, although
the parties went to the extent of "changing faces" on both
sides of the table in an effort to ease the rigidities rooted in
personal antagonisms between the principal negotiators on
both sides." Bargaining on the subject of an interim
contract continued, without success, until it became
academic by Respondent's removal of the plant to Upland.
Toward the end of December 1964, Respondent ceased
its efforts to carry on production in the face of the strike
and shutdown of the Anderson plant. About the same
time, it completed its arrangements for relocating at
Upland and let a contract for construction of a new
building there. Pending completion of the new building,
Respondent began production in rented quarters at
Upland, using supervisory personnel. During the month of
January 1965, the first of those in the clerical and
supervisory force of Respondent who were willing to move
to Upland, did so and by July all of these-about 85
percent of that force at Anderson-had made the move.
Transfer of normal production to Upland was slower.
The order to begin construction was given on
December 31, 1964, and work on the foundation actually
began on January 4, 1965, but Respondent was not able to
move into the building until April. The first few production
employees at Upland were hired during February and it
was estimated that, at the end of April, Respondent still
had fewer than 100 employees there. This number
increased slowly through May and June and, it was
stipulated, the number of production employees in the
Upland plant during the week prior to July 4 was
something under 153. It was also stipulated that this
number continued to move upward until it reached 212 at
the end of August and that there have been in the plant at
all times since August 1, at least 190 production and
maintenance employees. Only one of the production
employees who worked at the plant at Anderson-and that
one hired after the strike began-has worked at the plant
at Upland.
One of the January meetings, that on the 26th, was held
in the office of the Federal mediator in Indianapolis.
Respondent was represented by its president, Leland E.
Boren, its vice president for labor relations, Leroy V.
Bradnick, and its "corporate" counsel, Thomas D. Logan.9
The Union was represented by Shetterly and by Raymond
H. Berndt, the regional director of UAW's Region 3.
After a fruitless morning discussion, Logan and Berndt
met alone in Berndt's office in the afternoon. Logan
testified that he told Berndt that he had no authority to
bind Respondent and had been at the meeting only
because Strutz was in Florida. Logan pointed out the
conditions at Upland were not the same as at Anderson
and Berndt gave him a copy of a contract between UAW
and another employer so that he could become familiar
with its general contents.
Two days later, after conferring with Respondent's
officials, Logan wrote Berndt a six-page letter, practically
all of which consisted of a statement of "the principles
generally acceptable" to Respondent. One of these
"principles" consisted of a proposed contract provision
entitled "Seniority," which set forth, in detail, job titles,
groupings of employees, entry rates of pay, and the
automatic increases that would be effective after 60 and 90
days, respectively.
At its beginning, this letter from Logan referred to the
recent meeting of the parties and it then continued as
follows:
... As I indicated then, I want to preface our
communications with a restatement of our position.
That we are not obligated to recognize Local 940 and
are unwilling to recognize them for any purposes
pertaining to employment at any location other than
that at Anderson. However, we are willing to discuss
the possibility of being able to enter into an agreement
with some union at the Upland location. If we could
arrive at some agreement with you, I think we would
be willing to make that applicable to whatever local
you think best and recognize as much as we can the
equities of employees who have been employed at the
Anderson plant.
The letter closed with the following:
... Thanks again very much for the meeting of
yesterday, I am willing to formulate a complete
contract if these thoughts are consistent basically
with yours.
Again the Company has cautioned me to say that they
are not willing to recognize Mr. Shetterly and his
bargaining committee to arrive at any conclusion
about Upland, but they will look favorably upon a
contract with United Auto Workers if that can be
suitably arranged between them.
It seems to me that you might then propose a formal
contract which I promise to take up immediately with
the Board and give you a report.
Berndt did not answer until February 15, but he
explained that he had been ill and stated that he hoped,
within the next few days, to comment on Logan's letter of
January 26, "point by point" and to advise him further
"with respect to the basic suggestions ... relative to UAW
recognition" at the Upland plant.
On March 9, Logan again wrote to Berndt, noting that 6
weeks had passed since his letter of January 28 and that
Berndt had not written as he had promised in his letter of
February 15. "Accordingly," Logan's letter stated, "I am
instructed by my client to withdraw the suggestions made
in said letter and to revert to our former position." The
8 The documentary evidence clearly shows an unfortunate
tendency, on both sides, to permit themselves to be diverted from
the main problem and to quibble and quarrel over matters
irrelevant to it. Moreover, both the documents and the testimony
herein indicate that one of Respondent's major efforts in
connection with the contract negotiations was to eliminate the
necessity of dealing with International Representative Shetterly
and the members of the negotiating committee
8 Mr Logan is a member of the law firm which represents
Respondent Its name was, at that time, Rothberg, Gallmeyer,
Strutz, Fruechtemcht & Logan and its senior partner, Sol
Rothberg, was a member of Respondent's board of directors
Donald F Strutz was also a member of the firm at that time but he
thereafter severed his association with it, continuing, however, to
act as "labor counsel " for Respondent
PIERCE GOVERNOR CO. 105
following day, Berndt telegraphed Logan, stating that his
detailed answer had already been prepared and would be
in the mail by noon.
Berndt' s letter indicated acceptance, at least in
principle, of most of Respondent's proposals. He pointed
out, however, that the proposed wage rates were
"unacceptable" to the Union and noted that it was the
prerogative of the International both to designate the local
that would cover specific bargaining units and to assign
the representatives it thought best to assist such locals. He
suggested that they meet in an effort to settle the dispute.
With these letters, communication between Logan and
Berndt appears to have terminated.
During the month of June 1965, representatives of the
Union and Respondent met at a hearing involving the
unemployment insurance benefits of the striking
employees. They discussed and settled questions
concerning retired employees and talked briefly about the
status of the Union and of the strike. Shetterly restated the
Union's position: that the striking employees were still the
employees of the Company; 10 that Local 940 was their only
representative;11 and that all of those willing to go to
Upland should be offered employment there. Shetterly
also said that if the Company had questions about the
physical capacity of some of the employees to perform
their work, those questions should be resolved through
examination by an independent medical clinic. Strutz
countered by pointing out that there were some employees
who had been considered "substandard" at Anderson
because they either could not or would not produce a
reasonable day's work; he agreed that there should be
some objective standards for determining which of these
should be offered jobs at Upland and he suggested that it
be done through an independent arbitrator. Shetterly
promised to discuss this with his superiors.12 They also
discussed the probable number of striking employees who
would desire employment at Upland and they "guessed"
that, after eliminating those who had reached retirement
age, those who could not pass physical tests, and those
who had obtained other satisfactory employment, only 40
or 50 would go to Upland.
Representatives of the parties again met about
August 17 in connection with the unemployment
compensation hearing and again they also discussed the
controversy between them. As a result, Shetterly wrote
Strutz asking for a meeting to bargain concerning the
transfer rights of the striking employees and recognition of
the Union at the Upland plant . There was no answer to this
letter and, after a second letter was ignored, Shetterly
wrote on September 15 to President Boren, requesting a
meeting.
Boren answered his letter, dated September 17, stating
in part:
It is our position that under the law and the contract
which expired October 31, 1964, the employees at
Anderson who continue on strike against the plant,
have no rights concerning re-employment at the
Company's Upland plant.
He offered to meet with the Union but insisted that
Respondent was not obligated to bargain "concerning
transfer rights which do not exist."
Shetterly's reply suggested that a meeting be held
during the week of October 11, or any other convenient
date. This time Strutz answered: he did not fix a date for
meeting but restated Respondent's refusal to bargain
concerning transfer rights. A subsequent letter from
Shetterly again requesting a meeting to bargain about
transfer rights was again answered by a letter from Strutz
offering to meet at any time but not stating the subject of
such meeting. This letter also stated:
Again please permit me to state the Company's
position concerning bargaining for its employees at
Upland, Indiana. Until such time as you may become
the certified bargaining agent of our employees at
Upland or at such time as we are convinced that you
represent the majority of our employees at Upland, we
cannot consider your request for bargaining.
Just prior to Thanksgiving 1965, Strutz met with
Shetterly and Roy Cantrell, assistant regional director of
the UAW, in the Federal mediator's office at Indianapolis.
They discussed the strike situation at Anderson and
Shetterly noted that there were still about 40 people
drawing strike benefits and that these employees, if
physically capable of working, as well as some of those
who were working in Muncie,13 would probably wish to
take jobs at Upland. Shetterly then proposed that: (1) with
respect to those employees of the Anderson plant claimed
by Respondent to be unable to perform their jobs, physical
examinations be conducted by a competent medical clinic
in Indianapolis and the employees be approved or
disapproved on the basis of comparison with normal
persons of their same age; (2) with respect to the other
employees, whose physical capacities were not in
question, they be given rights to jobs at Upland,
"bumping," where necessary, others hired there; and
(3) the UAW be recognized as the collective-bargaining
representative of the employees at Upland and a contract
be negotiated with it to cover wages and working
conditions.
Shetterly assured Strutz that it was not essential that
Local 940, as an entity, continue to be, at Upland, the
"local" part of the joint representative of the employees
there but that, after an agreement had been reached with
the International covering the Upland plant, a new local
could be established and an election scheduled at which
the Upland employees could select their own bargaining
committee.
A final meeting was held in February 1966, at which the
spokesmen for each of the parties professed to be waiting
for an offer from the other. No further meetings had been
held prior to the hearing of this proceeding.
B. Discussion and Conclusions
1. The issues
Although the facts in this case are undisputed, there is a
large amount of evidence in the record that is
immaterial-either because its subject was never in
10 At the unemployment compensation hearing, Vice President
Bradnick testified that at the end of March the striking employees
could have resumed work at the Anderson plant since almost all
of the machinery was still intact and in place.
11 There is nothing to suggest that Shetterly meant to imply that
there was a distinction between Local 940 and the joint local-
International representative that is referred to herein as the
Union.
12 Shetterly subsequently telephoned Strutz and stated that, if
the Company insisted that some employees meet "objective"
standards as determined by an arbitrator before they could have
transfer rights, the Union could not agree.
O1 About 20 miles northeast of Anderson. Upland is about 32
miles north-northeast of Anderson.
106 DECISIONS OF NATIONAL
dispute or because it was not presented by the
pleadings-and an additional amount of evidence which,
when the basic issues in this case are delineated, may be
found to be immaterial to them.
The major causes for the confused and encumbered
condition of the record are, in my opinion, the General
Counsel's preoccupation with "background" evidence not
necessary to this case'" and Respondent's efforts to
litigate matters that are neither disputed nor issues
herein.15 The complaint, after setting forth background
matter designed to show bad-faith bargaining by
Respondent during the period prior to the 10(b) date,
alleges that, since February 25, 1965, Respondent has
refused to bargain with the Union as the collective-
bargaining representative of its plant employees
(1) concerning wages, hours, and other terms and
conditions of employment and (2) concerning the effect on
its employees of the removal of the plant from Anderson to
Upland. Whether Respondent's conduct constitutes a
refusal to bargain in these broad terms is, I am convinced,
the basic issue herein and, while there are several
narrower questions presented, they are subsidiary to the
main one.
2. Discussion
At the commencement of consideration of this case,
certain undisputed facts must be noted: (1) except for the
removal of its plant location from Anderson to Upland,
there has been no change in Respondent's business: its
corporate status, its ownership, its top management, its
clerical and supervisory personnel are all unchanged and
its product is precisely the same; (2) the new location of
the plant, at Upland, is about 32 miles from Anderson
through relatively open countryside with no large
settlements or obstacles but with several paved roads
between them16 and, therefore, both locations are within
the same general community.
On the basis of these facts, it seems clear that the
removal of the plant from Anderson to Upland had no
greater significance, in this context, than would have had
its removal across the street and, therefore, that the move
effected no substantial change in the status or obligation of
Respondent toward its employees or their bargaining
representative, the Union."
Respondent's position with respect to recognition of the
Union as the joint collective-bargaining representative of
1" As shown below, Respondent's good faith, or lack thereof, is
irrelevant.
1$ Despite Respondent's attempts, both during the course of
the bargaining and in this proceeding, to turn to its advantage the
concededly dilapidated condition of the plant by endeavoring to
make an issue of the necessity to move, the Union waived its right
to bargain on this subject and the lack of bargaining thereon is not
an issue herein.
'S The absence of large settlements and existence of paved
roads are judicially noticed on the basis of the 1965-1966 map of
the Indiana Highway Commission . In addition to the one or more
paved reads that are fairly direct, Interstate Highway 69, an
access-controlled , multilane, divided highway , has an access
point less than 5 miles from Anderson and another, about 25 miles
north, less than 3 miles from Upland.
17 In International Paper Company, 150 NLRB 1252, the
employer moved certain of its operations from one of its plants,
located on the south side of St. Louis, to another one which was
located on the north side of the same city. The Board adopted the
Trial Examiner's findings, based in part upon the fact that both
plants are in the same metropolitan area , that the employer's
refusal to recognize, for certain employees at the north plant, the
LABOR RELATIONS BOARD
its employees, both those formerly at Anderson and those
subsequently employed at Upland, is not completely clear
on the record. While Boren's letter of September 17, 1965,
states:
It is our position that under the law and the contract
which expired October 31, 1964, the employees at
Anderson who continue on strike against the plant,
have no rights concerning re-employment at the
Company's Upland plant ....
Logan's letter dated January 28 and March 9, 1965, stated
that Respondent was "not obligated to recognize Local 940
and is unwilling to recognize them for any purpose
pertaining to employment at any other location other than
Anderson."18
Respondent's brief, in listing the issues believed to be
raised by the pleadings and evidence herein, includes the
following:
5. Is the Company legally obligated to recognize
either the International Union or its Local 940 at
Anderson, Indiana, or both of them, as the exclusive
collective bargaining representative for its production
and maintenance workers at Upland, Indiana, without
a prior representation election to enable its Upland
employees to select a representative of their own
choosing.
and the recommended answer to this question is stated in
the negative because, according to its brief, Respondent
offered-and the Union refused-to bargain the question
of plant removal.
3. Conclusions
Whether stated as a denial of transfer rights to its
Anderson employees, a refusal to recognize Local 940 for
any purpose other than as the representative of the
"Anderson" employees or a refusal to bargain with "Mr.
Shetterly and his bargaining committee," it is clear that
Respondent has refused, and continues to refuse, to
bargain with the Union as the collective-bargaining
representative of its production and maintenance
employees.
But on November 6, 1964, when the Union went on
strike in support of its efforts to obtain a satisfactory
contract, all of the 186 permanent employees in the unit
were members of Local 940. From the beginning of
discussions involving a new plant, however, Respondent
took the position that at any new location it would refuse to
union which had represented them at the south plant , violated
Sec. 8(a)(5) of the Act. To the same effect, see: Jack Lewis, et al.
d/b/a California Footwear Company, 114 NLRB 765, enfd. as
modified in other respects 246 F.2d 886 (C.A. 9), in which removal
of the employer's plant from downtown Los Angeles to Venice, a
part of the same city about 12 miles away, was held not to affect
its obligations; Rapid Bindery, Inc., 127 NLRB 212, enfd. as
modified in other respects 293 F.2d 170 W.A. 2), in which the
employer's transfer of operations from Dunkirk, New York, 44
miles south of Buffalo, to Tonawanda, New York, about 10 miles
north of Buffalo, was also held not to affect its obligation;
N.L.R.B. v. Storack Corporation, 357 F.2d 893 (C.A. 7). in which
the court of appeals, enforcing the Board's bargaining order (147
NLRB 493), declined to give any weight to the employer's removal
of its plant from Evanston , Illinois, to the southern part of
Chicago, a distance of between 25 and 35 miles.
18 Another version of Respondent's position is the statement,
also set forth in Logan's letter of January 28, 1965, that "the
Company ... are not willing to recognize Mr. Shetterly and his
bargaining committee to arrive at any conclusion about
Upland.... ..
PIERCE GOVERNOR CO. 107
recognize Local 940 as a segment of the joint local-
International representative which had long been the
chosen collective-bargaining representative of its
employees. According to the uncontradicted testimony of
Bradnick, this position was first stated by Strutz at the
bargaining conference on December 16, 1964, when the
probable removal of the plant was first openly discussed, it
was repeated by Strutz at the meeting of January 6, 1965,
and again stated by Logan at the meeting on January 26,
1965. Finally, Logan's letter of January 28, 1965, quoted
above, sets forth Respondent's refusal to recognize Local
940 as an unchangeable element in its position' 9 and it is
clear from the record that this refusal continued unabated
down to the time of the hearing. I am unable to find, either
in the record or in Respondent's brief, an intelligible
argument in support of this position.
This position was and is, in my opinion, unjustifiable.
While it was the International which was certified in 1941
by the Board, there is no obstacle to the joint
representation of employees in an appropriate unit by
more than one labor organization, 20 and it is clear that it
was Local 940 to which, it was stipulated, all of the
employees in the unit belonged. Accordingly, on the basis
of the International's certification and continuous
representation of Respondent's employees and on the
basis of Local 940's status as the continuous representa-
tive and the designee by. membership of these same
employees, it is clear that the International and the Local
constituted the single, joint representative of the
employees2' and Respondent's effort to sever the Local
from the International cannot succeed. Respondent has
been, and is, obligated to bargain with them in the form
which has been chosen by the employees,22
notwithstanding the termination of the previous contract23
or the commencement and pendency of the strike.24
The specific subjects, however, upon which bargaining
was necessary (within the general area of "wages, hours,
and other terms and conditions of employment" set forth
in Sec. 8(d) of the Act), varied during the course of the
period here involved, depending upon changes in
circumstances.
During the period from the start of the strike (actually,
from this time of notification of termination of the
previously existing contract), until about December 16,
1964, the subject of bargaining was, generally speaking,
the terms of a contract covering employment at the
Anderson plant. Beginning about December 16, 1964,
however, when Respondent first clearly stated that
removal of the plant was under serious consideration,
proper subjects of bargaining included: (1) whether the
plant should be moved; (2) the terms of an interim contract
covering operation of the Anderson plant pending final
decision on such removal; and (3) the effect on the
employees of such removal, if accomplished.
With Respondent's definite decision, at the end of 1964,
to terminate its operations at Anderson and move to
Upland, any further discussion with the Union over
whether the plant should be moved or concerning the
terms of an interim contract at Anderson became futile but
Respondent's basic obligation to bargain with the Union
remained unaffected by the decision since, as set forth
above, both the operation of the Company and its location
remained relatively unchanged. But with the change in
circumstances resulting from the decision to move, the
aspects of Respondent's obligation to bargain which
became paramount during the period which began with
1965 were those concerned with: (1) the terms and
conditions of employment at Upland and (2) the effects of
the plant removal on the employees. These are the matters
upon which the Union has continuously insisted that
negotiations be held and upon which Respondent, by
insisting that it will not negotiate in any manner with Local
940, has precluded such negotiations.
It is clear, therefore, on this record that Respondent, by
continuously refusing to recognize and bargain with Local
940 as an integral part of the bargaining agent of its
employees, has violated Section 8(a)(5) of the Act by its
refusal to recognize and bargain with the joint bargaining
representative which it was required by the Act to
recognize.25 The question of good faith, moreover, is
irrelevant in this case since the duty to bargain herein
arises out of the undisputed relationship between the
parties and the subjects upon which the Union has sought
to bargain-and the Respondent has refused-are clearly
mandatory subjects of bargaining.26
Moreover, Respondent's continued refusal to discuss
the treatment to be accorded employees adversely
affected by the removal of the plant to Upland was, in
itself, a violation of Section 8(a)(5) of the Act.27
Although these refusals to bargain began prior to
February 25, 1965, any finding of violation of the Act
herein must be based upon activities subsequent to that
date. Accordingly, I find that Respondent's unfair labor
practices in violation of Section 8(a)(5) of the Act
commenced on February 25, 1965, and have continued
since that date.
Respondent's unalterable refusal to recognize Local
940, in any meaningful way, as an integral element of the
collective-bargaining representative of its employees has
been, I find, the principal obstruction to bargaining since
February 25, 1965. Its unlawful conduct has been the
major impediment to bargaining and has thereby largely
contributed to the continuation of the strike. Accordingly,
since February 25, 1965, the strike of Respondent's
employees has been an unfair labor practice strike,28 and
the employees who had not been theretofore permanently
replaced have retained their status as employees and their
19 This refusal, of course, was not one of the " suggestions"
which was "withdrawn" by Logan's letter of March 9, 1965, and in
subsequent conferences Respondent made clear its continued
refusal to recognize Local 940.
21 General Motors Corporation, 67 NLRB 233.
21 The article of the 1961-1964 contract entitled "recognition"
designates Local 940 and the International as "the exclusive
bargaining agency" for Respondent's employees in the described
unit.
22 The Ingalls Shipbuilding Corporation, 143 NLRB 712.
2' Winn-Dixie Stores, Inc., 147 NLRB 788, enfd. as modified
361 F.2d 512 (C.A. 5).
24 Pecheur Lozenge Co., Inc., 98 NLRB 496, enfd. as modified
209 F.2d 393, 403 (C.A. 2), cert. denied 347 U.S. 953.
25 Even if Respondent's conduct had been confined to an effort
to rid itself of Shetterly and the negotiating committee, such
conduct would constitute violation of Section 8(a)(5) of the Act
(American Radiator & Standard Sanitary Corporation, 155
NLRB 736).
211 N.L.R.B. v. Katz, 369 U.S. 736.
27 Rapid Bindery, Inc., supra; Royal Plating and Polishing Co.,
Inc., 160 NLRB 990.
28 The Philip Carey Mfg. Co., 140 NLRB 1103, 1105-06 enfd.
on this point 331 F.2d 720 (C.A. 6).
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right to reinstatement upon their unconditional application
to return to work.29
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the 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
It having been found herein that Respondent has
engaged in and is engaging in unfair labor practices, it will
be recommended that it cease and desist therefrom and
that it take certain affirmative action to effectuate the
policies of the Act.
Having found that the Respondent refused to bargain
collectively with the Union as the exclusive representative
of its employees in an appropriate unit, I will recommend
that the Respondent, upon request, bargain collectively
with the Union as such representative and, if an
understanding is reached, embody such understanding in
a signed agreement.
Having found that the strike, which commenced as an
economic work stoppage on November 6, 1964, was
converted into an unfair labor practice strike on
February 25, 1965, by Respondent's unlawful refusal to
bargain with the Union and was thereafter prolonged by
Respondent's unfair labor practices, and having found that
the employees who went on strike and after February 25,
1965, became unfair labor practice strikers as a
consequence thereof, I will recommend that Respondent,
upon application, offer them reinstatement to their former
or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, dismissing, if
necessary, any person hired after the latter date, and make
these employees whole for any loss of pay they may suffer
as a result of Respondent's refusal to reinstate them upon
such application.
Upon the foregoing findings of fact, and upon the entire
record herein, I reach the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 940 and the International are labor
organizations within the meaning of Section 2(5) of the Act.
3. The Union, consisting of Local 940 and the
International, acting jointly, is a labor organization within
the meaning of Section 2(5) of the Act.
4. All of Respondent's employees, except foremen,
assistant foremen, superintendents, confidential salaried
office, test room, and engineering department employees,
plant guards and clerks, constitute a unit appropriate for
the purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
5. At all times since February 25, 1965, the Union has
been the representative, for collective-bargaining
purposes, of Respondent's employees in the unit above
described.
6. By failing and refusing to bargain with the Union on
and after February 25, 1965, Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) of the Act and has thereby
interfered with, restrained, and coerced employees in the
rights guaranteed them in Section 7 of the Act in violation
of Section 8(a)(1) thereof.
7. By engaging in the aforementioned unfair labor
practices, the Respondent converted the Union's
economic strike into an unfair labor practice strike on
February 25, 1965, in consequence of which the employees
who were on strike on and after that date retained their
status as employees and have continued to be entitled to
reinstatement, upon application, to their former or
substantially equivalent positions in preference to all
employees hired since that date.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
it is recommended that The Pierce Governor Company,
Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing, upon request, to bargain with
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America,
AFL-CIO, and Local Union No. 940 thereof, acting
jointly, as the collective-bargaining representative of
its employees in the unit described as follows:
All employees, except foremen, assistant foremen,
superintendents, confidential salaried office, test room,
and engineering department employees, plant guards and
clerks.
(b) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of
their right to self-organization, to form labor organizations,
to join or assist the above-named labor organization or any
other labor organization, to bargain collectively through
representatives of their own choosing, to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any and all such activities, except to the extent that
such right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action to effectuate
the policies of the Act:
(a) Upon request, bargain with International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, AFL-CIO, and Local Union
No. 940 thereof, jointly, as the collective-bargaining
representative of its employees in the appropriate unit
described above with respect to rates of pay, hours of
employment, and other terms and conditions of employ-
ment and with respect to the effect upon the employees
29 Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270, 278; The
Philip Carey Mfg. Co., supra; Hawaii Meat Company , Ltd., 139
NLRB 966.
PIERCE GOVERNOR CO. 109
in the unit of the removal of its plant from Anderson to
Upland and, if an agreement is reached , embody such
agreement in a signed contract.
(b) Upon their unconditional offer to return to work,
reinstate all employees in the unit who were on strike on
and after February 25, 1965, to their former or
substantially equivalent positions , without prejudice to
their seniority and other rights and privileges , discharging,
if necessary to effect such reinstatement , persons
employed subsequent to that date and make each such
employee whole for any loss of pay he may suffer as a
result of its refusal to reinstate him upon such application.
The backpay, if any, will be computed on a quarterly basis
in the manner set forth in F. W. Woolworth Company, 90
NLRB 289 , with interest thereon at 6 percent per annum,
as set forth in Isis Plumbing & Heating Co., 138 NLRB
716.
(c) Notify any and all employees in the aforesaid unit
who were on strike against it on and after February 25,
1965, and who are now serving in the Armed Forces of the
United States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(d) Preserve and, upon request, make available to the
Board or its agents , for examination and copying, all
payroll records, social security payment records,
timecards , personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Post at its plant at Upland , Indiana, copies of the
attached notice marked "Appendix."30 Copies of said
notice, to be furnished by the Regional Director for
Region 25, after being signed by its representative, shall
be posted and be maintained by it for 60 consecutive days
thereafter , in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said notices
are not altered, defaced, or covered by any material.
(f) Notify the Regional Director for Region 25, in
writing, within 20 days from receipt of this Decision, what
steps it has taken to comply herewith.31
30 In the event that this Recommended Order is adopted by the
Board , the words "a Decision and Order " shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board 's Order is enforced by
a decree of a United States Court of Appeals , the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
11 In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read "Notify the
Regional Director for Region 25, in writing , within 10 days from
the date of this Order, what steps Respondent has taken to
comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board, and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America,
AFL-CIO, and its Local Union No. 940, acting jointly
as a labor organization , is the exclusive collective-
bargaining representative of our employees in the unit
which is described as follows:
All employees , except foremen , assistant
foremen , superintendents , confidential salaried
office, test room, and engineering department
employees , plant guards and clerks.
WE WILL NOT refuse , upon request , to bargain
collectively with the aforesaid labor organization as
the exclusive representative of our employees in the
said unit concerning (1) wages, hours, and terms and
conditions of employment , (2) the effect on our
employees in the said unit of the recent removal of our
plant from Anderson to Upland ; and, if agreement is
reached , we will embody such agreement in a signed
contract.
WE WILL NOT , by refusing to bargain with the said
labor organization concerning the aforesaid matters,
or in any like or related manner, interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization , to form labor
organizations, to join or assist the above -named labor
organization or any other labor organization, to
bargain collectively through representatives of their
own choosing , and to engage in concerted activities
for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all
such activities, except to the extent that such right
may be affected by an agreement requiring
membership in a labor organization as a condition of
employment , as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
WE WILL, upon their unconditional offer to return
to work , reinstate to their former or substantially
equivalent positions , without prejudice to their
seniority or other rights and privileges , all our
employees in the said unit who have been on strike on
and after February 25, 1965, and WE WILL, if
necessary to accomplish this, dismiss persons hired
since that date.
All our employees are free to join , or remain members
of, International Union , United Automobile , Aerospace
and Agricultural Implement Workers of America,
AFL-CIO, and its Local Union No. 940 , or any other labor
organization , or to refrain from joining or remaining
members thereof.
THE PIERCE GOVERNOR
COMPANY, INC.
(Employer)
Dated By
(Representative ) (Title)
Note: We will notify any of the above-described
employees if presently serving in the Armed Forces of the
United States of his or her right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 614 ISTA
Center, 150 West Market Street, Indianapolis, Indiana
46204, Telephone 633-8921.