Wallace Metal Products, Inc.

National Labor Relations Board - Board Decisions

Aug 9, 1979

244 N.L.R.B. 41 (N.L.R.B. 1979)

W\VAI.I.A('E M1A. PROI)('IS. IN('.
Wallace Metal Products, Inc. and Local Union No.
589, pholsterers International Union of North
America, AFL-CIO. Case 25 ('A 9073
August 9, 1979
DECISION AND ORDER
BY CHAIRMAN FANNIN(i ANI) M !1MBER S P NII I.0
ANt) TRUISI)AI.t
On March 13, 1979. Administrative Law Judge
Richard L. Denison issued the attached Decision in
this proceeding. Thereafter. Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act. as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings.' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.)
' Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant e idence convinces us that the
resolutions are incorrect. Standard Dnr WHall Products. Inc.. 91 NLRB 544
(1950)1 enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 We agree with the Administrative Law Judge's finding that Respondent
violated Sec. 8(a( I) and (3) of the Act by failing and refusing to pay its
employees their accrued vacation pay. We would so find even in the absence
of a finding of antiunion motivation. since we are of the opinion that Re-
spondent's action was so inherently destructive of employee interests that it
may be deemed proscribed without the necessity of proof of an underlying
discriminatory motive. NL.R.B. v. Great Dane Trailers. Inc. 388 U.S. 26
(1967). Chairman Fanning would not have delerred the vacation pay issue to
arbitration in any event.
The Administrative Law Judge found that Respondent violated Sec.
8(aXS) and (I) of the Act by refusing to furnish the Union with requested
"information" relating to unit work which the Company had found neces-
sary to subcontract as a result of the strike. Respondent. in its exceptions.
contends that the Union did not merely request "information." but insisted
on seeing the contracts themselves. In fact min his Decision. ALJD. sec III.
A. par. 15. the Administrative Law Judge noted the request of the Union to
"see" the subcontracts. The record confirms that the Union did in fact ask
for the contracts themselves. In our opinion the Union was entitled to see the
actual contracts, if in writing. to facilitate verification.
3 We are advised by the parties that since the issuance of the Administra-
tive Law Judge's Decision they have settled the vacation pay grievance by
mutual agreement. Thus. we shall leave to the compliance stage of this pro-
ceeding appropriate resolution of any inconsistencies between the parties'
agreement and the recommended remedy and Order
We find merit in Respondent's exception to the breadth f the Administra-
tive Law Judge's recommended Order. which requires the Union o cease
and desist from "in any other manner" interfering with. restraining. or coerc-
ing its employees in the exercise of the rights guaranteed them in Sec. 7 of
the Act. We have considered this case in light of standards set forth in
Hickmoir Foods. Inc, 242 NLRB 1357 1979). and have concluded that a
broad remedial order is inappropriate inasmuch as it has not been shown
that Respondent has a proclivity to violate the Act or has engaged in such
egregious or widespread misconduct as to demonstrate or general disregard
for the employees' fundamental statutory rights Accordingly. we shall mod-
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent. Wallace
Metal Products. Inc.. Richmond. Indiana, its officers,
agents. successors, and assigns. shall take the action
set frth in the said recommended Order. as so mnodi-
fied:
1. Substitute the following fo)r paragraph l(c):
"(c) In an' like or related manner interfering with.
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 oft the Act."
2. Substitute the attached notice tir that of the
Administrative Law Judge.
ify the recommended Order so ai to use the narrow Injunctl.e languag "ill
any like or related manner "
We shall also moditf the Adnlinistratlve Law Judges, notice t, contorm to
his recommended Order
APPENDIX
No(rIE To EMPI.OYEES
POSI D BY ORI)ER OF- TllE
NAIIONAI. LABOR REI.AI()NS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportu-
nity to present evidence, the National Labor Rela-
tions Board has found that we violated the National
Labor Relations Act. as amended, and has ordered us
to post this notice. We intend to carry out the Order
of the Board and abide by the following:
WE WIt I. NO- refuse to bargain collectively
with Local Union No. 589, Upholsterers Interna-
tional Union of North America. AFL CIO, by
refusing to furnish the Union with requested in-
formation concerning bargaining unit work sub-
contracted by us relevant to the performance of
the Union's statutory function as collective-bar-
gaining representative.
WE WlIL. NOI refuse to bargain collectively
with the Union by unilaterally and discrimina-
torily failing and refusing to pay our employees
their accrued vacation pay.
WE WILL NO in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the National Labor Relations Act.
as amended.
Wt. wIiili, upon request. bargain collectively in
good faith with the Union concerning any pro-
posed changes in wages. hours, working condi-
tions, and any other terms and conditions of em-
244 NLRB No. 10
41
I)I-.(ISI()NS ()O NAI . I.ABOR RL.AlIONS BOARDI
ploT'yment of ourt employees represented hy the
/' niro,
I \\Il 1. Upon request, furnish the lUnion
with the information they previously requested
during bargaining concerning subcontracted bar-
gaining-unit work in order that the Union may
carry out its legal obligations as collective-bar-
gaining representative of our employees.
W wnILL. make whole our employees or the
accrued vacation pay they lost by our July 1.
1977, filure and refusal to pa'y them by reim-
bursing them or their lost pay, plus interest.
The appropriate collective-bargaining unit is:
All production and maintenance employees
employed by us at our Richmond. Indiana.
plant, including group leaders, exclusive of
truckdrivers. garage mechanics, dockmen. of-
fice clerical employees, watchmen, foremen,
professional employees, guards and all super-
visors as defined in the Act.
WAII.AA(I MTAI. PROI) ( IS, IN( .
DECISION
SIAIIMiNI 1 11 11. ('ASl
RI('IARI) L. DNISON Administrative Law Judge: This
case was heard before me in Richmond. Indiana, on Octo-
ber 31 and November I and 2. 1977, based on an original
charge filed on July 5, 1977. by Local Union No. 589. Up-
holsterers International Union of North America, AFL.
CIO.' and thereafter amended on July 18. July 26. and Au-
gust 11. 1977, respectively. The complaint, issued August
25. 1977, alleges that Respondent. Wallace Metal Products.
Inc.. violated Section 8(a)( 1), (3), and (5) of the Act on or
about July 1I 1977, and thereafter by unilateral action in
refusing to pay employees accrued vacation pay during the
regularly scheduled vacation period because Respondent's
employees went on strike on May 6, 1977. It is also alleged
that Respondent violated Section 8(a}(5) and (I) of the Act
during the course of contract negotiations by withdrawing
proposals previously agreed upon, refusing to furnish the
Union with requested relevant information, and attempting
to undermine and destroy the Union's majority status by
negotiating in bad faith, with no intention of entering into
any final or binding collective-bargaining agreement. Fi-
nally, it is alleged that the strike of Respondent's employees
which began on May 6, 1977, was caused and prolonged by
the alleged unfair labor practices. Respondent's answer de-
nies the allegations of unfair labor practices alleged in the
complaint. In addition. Respondent has also insisted that
the 8(a)( I). (3). and (5) allegations relating to the nonpay-
ment of vacation benefits to striking employees should hbe
I Subsequent references in this Decision will refer to either the Utnionl. the
Charging Party. or Local 589.
deferred to final and binding arbitration under the terms of
the expired contract.2
tipon the entire record in the case, including my observa-
tion of the witnesses and consideration of the briefs. I make
the fIl low i ng:
INI)IN(;sI of :( I
I. JI RlSl)I('I (t)
Respondent, an Indiana corporation. is engaged in the
manufacture. sale, and distribution of caskets and related
products at its Richmond, Indiana. plant. I)uring the past
12 months a representative period. Respondent purchased
and received goods and materials valued in excess of
$50.000 at its Richmond. Indiana, plant directly from
points outside the State of Indiana. During the same period
of time Respondent manufactured. sold, and shipped fin-
ished products valued in excess of $50,000 from its Rich-
mond. Indiana. plant directly to points outside the State of
Indiana. I find that Respondent is now, and has been at all
times material herein, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
1t. IABOR OR(iANIZAIII)N
Local Union No. 589. Upholsterers International Union
of North America, AF -ClO. is a labor organization
within the meaning of Section 2(5) of the Act.
ll. 11il Al (il) U'NIAIR ABOR PRA(Il(lS
A. 7he Facts
On or about December 14. 1964. the Board certified the
Union as the exclusive collective-bargaining representative
of a unit comprising Respondent's production and mainte-
nance employees.3 Since January I I, 1965, there has been a
succession of 3-year contracts, the most recent of which
expired on May 5, 1977.
Following an initial exchange of contract proposals in
late February. the (ompany and the Union began formal
contract negotiations on March 3. 1977, at the Leland Mo-
tor Inn. Present fbr the Union were Perry G. Jarvis. pres-
ident of Local 589: Earl Graves. the Union's business
agent: and committeemen J. C. Rolland. Lawrence Gibbs.
Robert Coffey. and Willie Carpenter. In attendence for the
C(ompany were its attorney, Jack Rogers: Controller
Charles Faulkner: and Robert York.' At the outset of the
meeting there was a brief discussion concerning the ground
rules under which the negotiations would be conducted.
and it was agreed to proceed as in past negotiations wherein
( Ctling Dubsh Mlanu/acI urn Corporation, 142 NLRB 431 (19621.
'The unit description is:
All production and maintenance employees of the Emplo~.er. at its
Richmond, Indiana plant. including group leaders, exclusive of
truckdrivers. garage mechanics. dockmen. office clerical employees.
watchmen. ioreman. professional emplosees. guards and all supervisors
as defined in the Act.
4 All dates are in 1977 unless otherwise specified. All bargaining sessions
took place at the l.eland Motor Inn. Unless otherwise indicated. the same
persons were in attendance.
42
WALLACE ME1AL PRODL[(CIS. IN(C.
each proposal agreed upon was set aside. The parties then
went through the Union's proposals, clariving their mean-
ing and answering questions, following which the meeting
concluded.
The next meeting took place on March I1. at which time
the parties went through the proposals, dividing them into
economic and noneconomic categories. Those topics classi-
fied as economic were set aside for discussion after resolu-
tion of the noneconomic issues, each of which was then
discussed.' Agreement was reached on several of these
points, following which the Company submitted two writ-
ten proposals relating to the no-discrimination clause and
the military clause in the contract. Agreement was reached
in principle on union proposal 3(i)( I), a requested change in
the method utilized to establish piecework averages used for
establishing piecework rates; union proposal 4(b), hours of
work: union proposal 5(a), equalization of overtime be-
tween shifts: the Union's proposal relating to emergency
overtime: and union proposal 6(m)(i), dealing with the tem-
porary-transfer clause in the agreement. During the course
of this meeting the Union withdrew the language it had
drafted as proposal 46. the military clause, which corre-
sponded to company proposal 2.
The parties resumed their deliberations on March 16.
During this meeting Respondent gave the Union tour writ-
ten proposals concerning article IV, section 4. "Special Pro-
vision for Incentive Workers": article VI. section 2, "Distri-
bution of Overtime"; article XX. "Seniority." section 5.
"Discipline and Discharge": and article XX, "Seniority."
section 5, "Layoff'." Agreement was reached on the proper
interpretation of the limitations clause of the grievance pro-
cedure: distribution of overtime: the military leave clause
(wherein both parties dropped their proposals and agreed
to the old contractual language): the seniority, discipline
and discharge. clauses (as revised at the meeting): and a
revised seniority' provision for employee bumping in layoff
situations. Agreement in principle was also reached with
respect to union proposal 43, concerning the creation of a
new hi-lo job for loading trucks. with language to be
drafted later. Numerous other union and company propos-
als were discussed, but not agreed to. The meeting ended
with agreement being reached on union proposal 54.
thereby settling the grievances of three employees.
Further progress was made at the March 21 session. Out
of nine major topics discussed, total agreement was reached
on five, and partial agreement was reached on two others.
Thus, the Union agreed to company proposal I, on a non-
discrimination clause, which corresponded to union pro-
posal 48. After the Union had rejected company proposal 8,
the Company agreed to a modified version of union pro-
posal I, concerning the application of seniority to layoffs,
reductions of hours, and job eliminations. Following con-
sideration of union proposal 3(i)(2). agreement was reached
Although the testimony of the witnesses omits an% further ,pecific expla-
nation relating to procedural matters. it is clear from this evidence and a
session-b-session examination of the manner in which topics were discussed
dunng the negotiations that the parties intended to proceed and. in fact, did
proceed to conduct their discussions in the traditional manner of deferring
discussion of economic issues pending the resolution oft noneconomic items.
with agreement on each item remaining tentative until agreement upon a
complete contract was reached.
on the language to be used in article IV. "A'aes."section 4.
"Special Provisions for Incentive Workers." on the basis of
a new proposal (I I) submitted by the (ompan., leaving the
rate for later discussion as an econonic item. he parties
also agreed to a revised version of compan\ proposal 9.
dealing with article XX. "Seniorit.," section 10. "Job Bid-
ding," and the Union withdragw its corresponding proposal
12, section 10, paragraph (c). Having prei,iouslx agreed in
principle on the topic of creating a hi-lo job for loading
trucks, the parties now also agreed to contract language on
this provision, based on an altered ersion of a proposal
(12) submitted by the Company at this meeting. The Corn-
pan 5 and the Union also agreed in principle after discussing
union proposal 5, with the Company agreeing to draft lan-
guage embodying this agreement. Finally. the U'nion with-
drew its proposal 47. relating to the limitation-of-liabilitv
clause. when agreement was reached that the current con-
tract clause was acceptable.
Bargaining continued on March 31. nion proposal 5.
section 2(a) and (b), was discussed in detail, and the C(om-
pany submitted written counterproposals 113 and 14) in this
area. which dealt with overtime on both a daill and an
other-than-dail, basis. No agreement was reached. how-
ever, and the parties spent the remainder (of' the meeting
time making a list of the noneconomic items that were still
open for discussion.
The Company and the Union next met on April 5. With
minor revisions, agreement was reached on the overtime
proposals advanced by the Company a the preious meet-
ing as a counter to union proposal 5. section 2(a) and (b).
The Company also submitted to the Union counterpropos-
als with respect to the safet committee clause (union pro-
posal 321. the "Seniorits of Union Stewards and (;roup
I eaders" clause (union proposal 37). and article XVIII.
"General Provisions, Maintenance of Work" clause (union
proposal 40). and agreement was reached on these items. In
addition. cncerning the clause on seniorilt of Ulion steW -
ards and group leaders. the (Conpan, agreed that the
Union's membership could have the option of choosing ei-
ther the old contract language or the newly agreed upon
language. I.astly, the issue raised b union proposal 39.
dealing with certain work performed by maintenance em-
ployees. vwas resolved by a compromise which resulted in
the Union withdrawing this proposal.
On April II a special meeting was held, involving onl'
Jarvis. Graves. Faulkner, and Rogers. specificalls for the
purpose of briefing the Union on the Company's economic
posture and to set the stage for the presentation of Respon-
dent's economic proposal. After a statistical examination of'
the decline in business in the casket industry. the Company
gave the Union detailed information concerning inroads
made by competitors into the Company's market and the
quarterly report of Respondent's major competitor. The
Company also furnished the Union with copies of labor
contracts of other casket companies in the Chicago area
and on the west coast. together with examples of recent
contract settlements in other industries in the Richmond
area. The parties then discussed various problems in the
" he summar , of he events which transpired during the negotiations thus
far is based upon the uncontradicted and credited testinimn? , o Perr\ (;
Jars is. president of1 I.cal I 589
43
DECISIONS OF NATIONAL ILABOR RELATIONS BOARD
Wallace plant relating to the Company's expressed need to
have a contract which increased efficiency in order to re-
main competitive. Turning to the forthcoming economic
proposal, the Company asked for the Union's advice on
how best to present that proposal to the full committee.
Chief Negotiator Rogers stated that he did not know how
to proceed and talked openly to the union officials concern-
ing whether it would be better to initially offer 50 percent of
the economic package and then, after an anticipated rejec-
tion, present the other 50 or to offer 80 percent initially,
followed by another 20. In response, Jarvis suggested that
an 80 percent-20 percent offer would be better, because if
the Company placed itself in a position of doubling its eco-
nomic offer after rejection by the membership. "the people
might form the opinion that if they rejected it again the
Company might then double it again." The meeting ended
with an understanding between the parties that the Com-
pany would offer the major portion of its total economic
package initially, that the union membership would then
vote on that offer on or about April 24, and that after rejec-
tion the Company would receive, on or about April 26. the
10-day notice of termination required by the contract, fol-
lowing which Respondent would present its revised eco-
nomic offer.7
The next meeting, a fll-scale bargaining session, was
held on April 20. The Company presented its economic
proposal, which consisted of a 15-cent-an-hour increase tor
hourly paid employees for each year of a 3-year contract.
with a I-percent-per-year increase for incentive employees.
coupled with certain group insurance improvements and
the substitution of a Good Friday holiday for July 4. In
Jarvis' terms this offer was" a package offer . . . coupled
with everything that had been agreed on and everything in
the expiring contract." The Union made no response, hut
asked if it could discuss cost of living at that time. and the
Company replied that they were not prepared to discuss it
at that time. Prior to the end of the meeting. the Compan
agreed to union proposal 19. dealing with plant rules. after
a compromise was reached extending the time limitation in
the proposal from 6 to 9 months.8
On April 24 the Union's membership rejected the Com-
pany's offer, and on April 26 Respondent received the 10-
day notice of contract termination. The parties resumed ne-
gotiations on April 27. At this time the Union presented the
Company with a counterproposal consisting of the follow-
ing: The Union withdrew proposals (a) and (b); 3(g). 3(h),
30j)(2); 3(k): 12; section 10(c): 15(a); 17(d): 18: 20: 21: 22:
25; 28: 29: 30: 34: 36: 38; 41, and 42. The Union modified
(for the most part downward) the following proposals: 4(a).
15(b), 17(e). 17(g). 17(i), 23. 24, 26, 45, 52, and 53. Included
in these revised demands were reduced economic proposals
I Jarvis avoided any mention of the April II meeting until asked about it
on cross-examination and confirmed the details of the discussion concerning
the Company's presentation of its economic offer only when pressed. he
differences between his account of this meeting and that of Faulkner are for
the most part differences in shading and the amount of detail related by each
witness. Under the circumstances presented by Jarvis' ailure to described
this important meeting on direct examination and his reluctance to do so on
cross-examination. I have credited Faulkner where differences occur.
I From this point forward in the negotiations. bargaining was conducted
by both sides' exchanging package proposals.
which, for example, decreased the 25-percent-per-year in-
centive increase sought to 10 percent/8 percent/8 percent
and the requested $1-per-year hourly increase to 70 cents/
45 cents/45 cents. The Union presented these modifications
of its previous proposals as a package coupled to all other
items previously tentatively agreed to, with all remaining
items to stay the same as in the existing contract. The Com-
pany responded that they would agree to union proposals
I I(b)(2). 3()(3). and 8(a), concerning workmen's compensa-
tion, the rate of pieceworkers assigned to other work, and
the definition of an aggrieved employee, respectively. They
also included in the package proposal a revised economic
offer of 19 cents per year for hourly workers and 1.4 percent
per year for incentive workers plus the insurance offer pro-
posed on April 20. The meeting adjourned with the Union's
negotiators stating that they would take the Company's
proposal to their membership.
Following rejection of Respondent's April 27 counterpro-
posal by the union membership. another negotiating meet-
ing was held on May 5. At the outset of the meeting the
Union gave the Company a package proposal which repre-
sented a modified form of the Union's proposal of April 27.
The Union withdrew proposals I(c); 3(i)(3): 12, section 7.
paragraph A( I) and (2): and 44. It also reduced its demands
with respect to certain other proposals. including proposal
50. concerning cost of' living, wherein the Union offered to
accept a 10-cent cap. The C(ompany did not accept this
proposal bhut instead countered with its own package pro-
posal couched in terms of either acceptance, rejection,
modification, or alternatives to the various items in the pro-
posal offered by the Union at the outset of the meeting.
With respect to the economic portion of the offer. Respon-
dent stated that the Union could choose one of four op-
tions: 28 cents an hour per year for hourly workers and I-
3/4 percent per year for incentive workers, 29 cents an hour
per year with 1-1/'2 percent per ear incentive, 30 cents an
hour per year with I percent per year incentive, or 35 cents
per hour the irst year followed by 25 cents an hour there-
after with I percent per year incentive. The Company also
offered an additional 5 cents an hour per year for those
classifications referred to in union proposals 23 and 26.
Good FridaN was offered as an additional holiday. Also
offered were increased insurance benefits and a reopening
of negotiations within 6 months for the purpose of estab-
lishing a new method for setting piecework rates. All re-
maining items were to remain as previously agreed in nego-
tiations or, where applicable, as stated in the expired
contract. At the end of his presentation Rogers told the
Union that this would be the Company's final offer. The
Union did not accept the Company's proposal, but, after a
caucus, presented a counteroffer in terms of proposed
changes in the preceding company offer. Rogers rejected all
but one of these proposed modifications, a trade-off of
$50.000 of major medical coverage for an additional $25 on
diagnostic X-ray and laboratory expenses in the insurance
plan. The meeting ended. Later that day Jarvis received a
phone call from Faulker. who stated that the Company
would agree to union proposal 27 as modified during their
negotiations.
Subsequently on May 5 the union membership voted to
reject the Company's final offer and also voted to strike.
44
WALLACE METAIl PRODU(IS. INC.
The strike began at 12:01 a.m. on May 6. It is undisputed
that later on Ma 6 Respondent sent the t'nion's a telegram
stating, "All proposals ofered by the CompanN during cur-
rent contract negotiations are withdrawn."
On or about Frida. Julv 1 Jarvis called Faulkner, pur-
suant to inquiries from striking employees. and asked
whether or not the Company was going to issue vacation
paychecks under the clause in the recently expired contract
which set a 2-week plant vacation period beginning the first
Monday in July each year. Faulkner replied that the Com-
pany had no intention of making payment. Jarvis then an-
nounced his intention to file a grievance on the matter, and
after some discussion about delivering the grievance to the
plant, it was decided, at Faulkner's suggestion, that Jarvis
could simply give it to the Company at the next scheduled
negotiating session, on July 5. At that meeting Rogers be-
gan by stating that since the Company had made the last
proposal, which had been rejected, he thought the Union
should tell the Company what it would take to settle the
strike.' Following a caucus, the Union presented a 10-point
proposal, which contained a number of items raised for the
first time. The 10 points were: (I) reinstatement of all offers
as of May 5: (2) the Company should agree to pay employ-
ees' hospitalization bills which occurred during the strike:
(3) the Company must pay vacation pay just as though the
strike had never occurred: (4) an economic proposal con-
sisting of 50 cents, 35 cents, and 35 cents hourly per year:
(5) a cost-of-living allowance: (6) a 3-year contract dating
from April 28, 1977; (7) backpay from April 28 to May 5:
(8) 2-1/1 hours' pay for employees sent home early on May
5: (9) agreement on the Union's language concerning the
topic of combination of jobs: and (10) reinstatement of
union proposal 19, concerning plant rules. Respondent re-
jected the proposal, but in outlining its views on each of the
10 points, it specifically' disagreed with only 6. Respondent
asked for a recess until July 11 to consider the remaining
four: reinstatement of the May 5 proposals, the vacation
pay issue, the proposed across-the-brcad wage increase. and
the cost-of-living allowance. The meeting then adjourned.
The July I meeting began with Rogers stating the Com-
pany's response to the remaining four items of the Union's
July 5 proposal. He said that the Company was willing to
reinstate its May 5 offer, except for the 32-hour guaranteed
workweek clause and the subcontracting clause of the ex-
pired agreement. He explained that as a result of the strike.
the Company had been forced to fulfill its obligations to its
customers by having other companies manufacture parts
for them and that they needed the elimination of those
clauses before the work could be returned back to the Rich-
mond plant. Since it was not known how many customers
would be regained after the strike. they could not guarantee
the employees 32 hours of work every week. The Company
further proposed 25 cents an hour and 1-1/4 percent per
year for a 3-year contract dating from the ratification date.
Responding to the vacation pay grievance issue. Rogers
said that he would agree that the grievance presented on
July 5 covered all vacations earned in the years 1975-76
and 1976-77, but that the Company did not view the griev-
A this meeting. for the first time. a Federal mediator was present. nlon
Attorney Ed FillenAarth also attended.
ance as a negotiable item. 1-he Union did not accept the
('ompan\'s package offer. but offered instead to agree to it
contract for longer than 3 years. with an expiration date of
April 28. 1980. on the basis of a 35-cent-per-~,ear increase. a
cost-ot-living increase, and the remaining ponlts of the
Union's July 5 proposal, less the demand that the ('ompan
pay the hospital bills incurred by employees during the
strike. [he Company rejected this proposal. but betore the
meeting concluded the parties did agree that the guaranteed
incentive rate should be the basis for calculating incentive
workers' pay.
The next meeting took place on July 21. Graves began
the meeting b asking Rogers if the ('ompany's last pro-
posal was their July I1 offer, wherein Rogers had said that
the Company would reinstate their May 5 offer minus the
32-hour work guarantee and subcontracting clauses. Rogers
replied affirmatively. again explaining that these clauses
constituted guarantees. and the reason the Compan
wanted them out of an agreement was because they had lost
customers, had been forced to do some subcontracting, and
could no longer make such guarantees. During the course
of this discussion union attorney Fillenwarth interjected a
request on behalf of the Union to see the subcontracts to
which Rogers had referred. Rogers refused. Fillenw'arth re-
peated his request several times. The Union took the posi-
tion that it was requesting this information in order to de-
termine what work was involved and how many emplo.ees
would be affected so that they could intelligently bargain
about whether or not to agree to eliminate these clauses.
The Company remained firm in its refusal to supply the
requested information. Following a caucus. the parties tem-
porarily turned their attention to the subject of the vacation
grievance as the Union invoked the third step of the griev-
ance procedure. Toward the end of the meeting, the Com-
pany proposed that the guaranteed workweek clause and
the subcontracting clause be held in abeyance tor 18
months, at the end of which it would automaticall5 again
be in effect as part of the contract. The Union rejected this
proposal, stating that it could not agree without knowing
the contents of the subcontracts, because without the re-
quested information it could not know whether or not the
Company needed the proposed 18-month moratorium.
The meeting on July 25 was essentially a continuation of
the discussion which began on July 21. After a review of the
Company's last proposal, which included the elimination of
the 32-hour and subcontracting clauses. Fillenwarth again
insisted that the Union had to examine the subcontracts
befbre it could negotiate on the Company's proposal. Both
Fillenwarth and Graves argued that the Union needed to
know what work was involved, the employees affected. and
the duration of the contracts to negotiate effectively and
that an opportunity to examine the contracts themselves
was therefore necessary. Fillenwarth also stated that in the
event any of the contracts were oral, he wanted to know the
information concerning the work, the duration, and the em-
ployees affected. Rogers then modified the Company's pro-
posal. He proposed a 6 months' moratorium for the subcon-
tracting and 32-hour clauses and the scheduling of
vacations by the Company for the first 6 months of the
contract without regard to seniority in order to facilitate the
return to work. In the event the Union w'as not satisfied that
45
I)I:( ISI()NS O()I NA IIONAI I.ABOH()R RI.AI IONS BOARI)
the ('olripanl * as ;akling Celv -reasonable eltort to return
the subcontracted swork to the Richmond plant. it would
haie lc rihi Ih to Iermlilnte the contract ater a 3(}-day no-
tice. I he lin litl did ,lt :accept this proposal and renewed
its request to see the suhcontracts. Again Rogers refused.
lhe ('onipanLs then met with the Federal mediator after
which it reuised to place its original May 5 oflfer back on
the table. ollowing a caucus, the Union stated that it Was
willing to go tgo its menihership with two proposals. he
tirst ssas the ('onmpani_'s May 5 otffer without ans recom-
mlendation of adoptioln. ihe second, which the Inion pro-
posed to recommend fior acceptance, consisted of the fol-
lowing points: A contract to be effective on May 6 and to
expire on either April 29, 1980. or April 28. 1981: increases
of' 29 cents per hour annually for hourly workers and I-1/2
percent annually tfor incentive workers: a cost-ol-living in-
crease with no cap: reinstatement of all proposals agreed to
through May 5 1977: all prior contract language with re-
spect to items not changed by agreement: all jobs combined
prior to May 5 to remain combined at the discretion of the
Company and all new job combinations to be subject to
question b the Union or the employee under the grievance
procedure: vacations due under the expired contract to be
paid the same as if the strike had never occurred: and the
failure of the Company to pay 2-1/2 hours' pay to the night
shift on May 5 not to stand as precedent for the future in
any matter or issue involving the 32-hour guaranteed work-
week or any other issue.
The Company rejected the Union's proposal. stating it
would stand on its July 25 modification of their previous
proposal. Fillenwarth renewed his request for the subcon-
tracts. The Company again refused, with Rogers stating
that he did not want to furnish the subcontracts to the
Union because of the possibility of its picketing other com-
panies as an ally. The Union then proposed that the sub-
contracting clause be held in abeyance for 90 days, with the
guaranteed 32-hour workweek to remain in effect. In addi-
tion. the Company could lay off any employee during the
90-day period by seniority, provided no further subcon-
tracts were let, but the Company would have to have all
employees back to work at the end of 90 days unless it
could show they had lost customers and could not use
them. The Company rejected this proposal and adhered to
its own proposal. A further request for the subcontracts was
refused, and the meeting adjourned with the Union an-
nouncing that it would hold a meeting for the membership
on July 31 for the purpose of reporting on the negotiations.
At the July 31 membership meeting the Union placed
before the employees the Company's May 5 package offer
and the offer as modified on July 25. The meeting, chaired
by Jarvis was held at the Leland Motor Inn. with 105 em-
ployees signing the attendance sheet. The employees voted
their disapproval of the Company's May 5 offer. hen Jar-
vis described the July 25 negotiations, with particular em-
phasis on the Company's position concerning the 32-hour
guaranteed workweek and no-subcontracting clauses. Jarvis
explained that the Union felt it had to reject the C(ompany's
July 25 proposal because the Company had refused to fur-
nish the information about the subcontracts which the com-
mittee considered necessary to intelligently bargain con-
cerning the proposal. At the conclusion of Jarvis' address,
the membership voted its rejection of the ('ompany's July
25 proposal.
[he next collective-bargaining session was held on Au-
gust 9. ILillcn'varth reported that the July 31 meeting had
resulted in the membership's rejection of' the Company's
July 25 and May 5 oers. Fillenwarth asked if' the parties
could begin negotiating on the basis of the Company's May
5 proposal and everything concerning which there was no
dispute as of May 6. noting that this would leave open the
question of' money and 10 other issues. Rogers declined for
the reason that the May 5 proposal contained the 32-hour
guarantee and the no-subcontracting clause, which the
(ompanly had explained it could not he reoffered. Rogers
spoke in favor of the Company's July 25 offer. which the
Union had previously rejected. observing that if the Union
didn't like what the Company was doing after the 6 months'
moratorium period had passed, the parties could negotiate.
and if that ailed, the Union could strike. Then the Union
again asked to see the subcontracts, and the Company
again refused. The Union again advanced its July 25 pro-
posal. and the meeting adjourned with Rogers stating that
the Company would give it further consideration.
The next meeting was held on August 16. The Company
advanced a six-point proposal for settling the strike. It in-
cluded an offer to bring back to the plant within 90 working
days all dyes that left the plant after 12:01 a.m. on May 6;
an offer to hold the 32-hour clause and the subcontracting
clauses in abeyance for 90 days, after which time both
clauses would automatically resume effect as worded in the
expired contract: the Company's final offer on money on
May S without cost of living: a proposal that the Company
would have the right to schedule vacations for a period of 6
months following the strike regardless of seniority: a pro-
posal to the Company would recall employees by depart-
mental seniority for 90 working days, after which recall
would revert to the language of the contract: and the pro-
posal of a contract term of' 3 years dating from ratification.
In addition, Rogers clarified in response to questions that
the "combination of jobs" language could go through the
grievance procedure and that everything that was agreed to
before or after May 5 would be included. The Union cau-
cused, did not accept the Company's proposal, and offered
a five-point proposal of its own. It asked for the return of all
dyes and equipment removed since 30 days prior to the
strike, the inclusion in the contract of all items agreed upon
before or after May 5, the inclusion of all items in the con-
tract that expired on May 6 concerning which there was no
dispute, all work previously performed at the Richmond
plant under the expired contract to be performed again at
Richmond a cost-of-living allowance, and a 3-year contract
dating from April 28. The meeting adjourned without any
acceptance or rejection by the Company and without any
further renewal of' the Union's request to see the Compa-
ny's subcontracts.
Another meeting was held, on August 25."' Rogers began
by responding to the Union's August 16 proposal. He said
the Company needed 90 working days on the subcontract-
ing clause and 2 weeks from callback with respect to the 32-
L( nln Attorne I-rederick W. D)ennerline III attended in place of Fil-
len arth
46
WA\I1 AI ('IT 11IAI. PR()lDI'('IS. INC(
hour work guarantee. Rogers indicated he could agree to
items I and 2 of the UInion's counterproposal. hut that he
could not igree to cost-of-lin.ling alloance. and aid he
A anted a contract to expire 3 \ears romn the da, ot' ra ltifica-
lion. Next. the tnilion caucused and returncd wmilh a six-
point proposal. nder its terms all des except regular a-
tonmitic bridge des w ould he hrotg h back andi utilized at
the Richmond plant within 91) calendarl dal- AItoalilatic
bridge dyes might take up to 6 months to return. All items
agreed to before or after Ma!\ 5 would he included in the
new contract. All undisputed items in the expired contract
would hecome part of the new contract except for the sub-
contracting clause. which would go into effect 90 calendar
days after notification of ratification: the 32-hour clause.
waived for 20 calendar days from the date of recall of' the
first maintenance employees for maintenance employees
and 20 calendar da s from the recall of the first production
employees for production emplo ees: callback to he made
bh classification seniority regardless of' shift: and a 29-cent-
per-hour annual increase plus a cost-of-living allowance of
I cent for each .4 of-a-point increase. Incentive workers
were to receive only a cost-of-living allowance. The Union
also proposed a 3-)ear contract to expire on April 28. with
annual raises from the ratification date, or, ill the alterna-
tive, a 3-year-8-month contract with annual raises from the
date of the contract and an expiration date of April 28,
1981. Vacation pay would be paid as if no strike had oc-
curred except that employees who wished to do so might
use the normal shutdown in July as 2 weeks of' their vaca-
tion, accepting only the pay. For the first 90 calendar days
the ompany would have the right to refuse acation. hut
any vacations granted during this period would be by de-
partmental seniority. The Company stated it could agree to
the first three items of the Union's proposal. hut it rejected
the others. Since the proposal of the Union was a package
proposal. the Union responded that there was no agree-
ment. It should be noted at this point, however. that the
parties had reached agreement in principle with respect to
the difficult and time-consuming issue of the 32-hour and
subcontracting clauses.
Another negotiating session was held on August 31. Al-
though negotiations continued to be conducted by exchang-
ing package proposals, it is clear that at this point in time
only three issues remained concerning which the parties
had reached no understanding: money. the terms of the
contract, and the settlement of the vacation question." Rog-
ers then addressed himself to each of these items. He said
that the Company's position concerning money was the
same as its final offer of May 5. He said the Company
wanted a 3-year contract from the date of ratification and
the right to schedule vacations without regard to seniority.
The Union countered with a four-point proposal. including
proposals for each of the open issues. and added a proposal
that the Company reinstate the insurance on all employees
for the first 90 calendar days. after which the insurance
would he in effect only for people working or on acation.
The Union offered this package proposal as a modification
1 Rogers described he gap between he palriles as conslsing ol Iwlo and
Ine-half sue.
of its proposal of August 25. The (Compan\ rejected this
proposal point by point. and the meeting adjourned.
Another meeting was held on September 20. The Union
told the ( ompan that it had given the (ormpan a pro-
posal al the previous meeting which it ais willing to recom-
mend to its membership. (iraves stated that the proposal
was the least that the comnittee was willing to recommend.
lIe said the Ulnion was not willing t make another pro-
posal, and unless tle ('ompan had an; \ changes or an',-
thing to present. the. were at a.n impasse. Ihen Fillelnlarth
aisked if the (Company still intended to arhitrate the aca-
tion case, and he received an aflirmati e answ er. Fillen-
uarth said that the nion must hve a cost-oflliing llow -
ance and asked it' the (Comp;lan would increase its cents-
per-hour offer if the Union would modil' their cost-of-liv-
ing allowance proposal. Rogers answered that eersthling
was on the table in the form of the ('orpan 's offer of Ma
5. which was its final ofler then and now. Rogers empha-
sized that the'. were not withholding an,thing nd that the
Union had been told this on Max 5. Summarizing. Rogers
stated that there were four points no" remaiining: mone.
scheduling vacations. reinstating insurance, and the con-
tract expiration date. Fillenwarth insisted that the Union
had made substantial concessions in particular noting the
subcontracting and 32-hour clauses. Rogers responded that
the Company also had made concessions, that nothing Illis-
leading had been reported to the Union. and that the' had
spent much time on economics. Fillenwarth asked if the
companx negotiators would be willing to seek a change in
position by the Company's top management. and if so. the
committee would go back to the melmbership. lloes er. the
Compan answered that they had made their final offer.
Then Grases and Fillenwarth reminded Rogers that the
Union's lst proposal was a package proposal and that the
Union would not agree to just parts of it. insisting that
actually the Union was offering to commit itself to less than
what was offered when they went on strike. Considerable
further discussion between the Company. the Union, and
the mediator resulted in no further moement by either
side. and the meeting adjourned.
The final meeting involved in these proceedings occurred
on October 4. Rogers stated that the) had reviewed the
Union's August 31 four-point proposal. and they were
ready to offer a compan) proposal of four points:
1. Concerning vacation scheduling. the C(ompany would
close down the plant between Christmas and New Year's
and would schedule I week of vacation at that time. start-
ing on December 26 with a resumption of work on JanuarN
3. The C(ompany would retain the right to schedule an em-
ployee's second week of vacation. but employees entitled to
a third or fourth week might take this time b seniority as
provided b) the contract.
2. Insurance coverage would take effect on the date of
recall. If an emplo ee were laid off after recll. the coverage
would remain in effect for a period up to 60 da's after
ratification. Pregnanc benefits would be applicable if the
emplosee were covered on the date of conception.
3. The term of the contract would he 3 ears.
4. The (Conmpan's Ma 5 wage proposal.
The Union responded that the Conpan 3 had to give on
money and the cost-of-liiing allowance.e The Company an-
swered that thex would not consider a proposal with a
47
I)I.(ISIONS 01 NA IaNAL IAB(OR RELA1IONS BOARI)
change in the money or the cost-ot-living allowance. After a
short union caucus. the union negotiators told the ('Com-
pany that there had to be something differenl than the Ma
5 oer on wages and the term of' the contract. and ift' the
C'ompany had nothing different, there was no further need
to continue meeting. With that the meeting adjourned. YTo
date. insofar as this record shows, no agreement has been
reached, and the strike of' Respondent's employees contin-
uies. 1
B. Dis.vc.vioa / ,h ls Ilsues and Concldittng Findling.s
The General Counsel and the C('harging Party contend
that since on or about July 1 Respondent has discriminated
against its employees by refusing to pay them accrued vaca-
tion pay for scheduled vacation periods during the strike, in
violation of Section 8(a)(3) and () of the Act. It is also
argued that the same conduct constitutes a unilateral
change in the Company's existing vacation payment policy.
in violation of Section 8(a)(5) and (1) of the Act. Respon-
dent denies that Faulkner's admitted July I refusal of Jar-
vis' request for payment constituted any violation of the
Act, since it contends that no vacation money is owed to
employees until a plant shutdown is actually scheduled, and
that none was scheduled because the strike was in progress.
Respondent further argues that in any event. since a griev-
ance has been filed under a grievance procedure culminat-
ing in final and binding arbitration. the vacation pay issue
should be deferred to arbitration." I find that the vacation
pay issue is not appropriate for deferral to the grievance
and arbitration procedure under the expired contract. As
noted by the General Counsel in his brief. Respondent's
refusal to pay vacation pay appears in the complaint not
just as one of a series of separate and distinct violations of
Section 8(a)(5) but also as an "integral part" of a broader
allegation that Respondent violated Section 8(a)(5) and (1)
of the Act by engaging in this and other conduct constitut-
ing had-faith bargaining and evincing an intention not to
enter into any final and binding agreement. In this latter
context it would be necessary for me and the Board to pass
upon the vacation pay issue in any event as part of a con-
sideration of other nondeferrable issues. Also, Respondent's
initial denial of the arbitrability of the vacation pay griev-
ance coupled with the position that the matter was not a
proper subject for negotiation, absent evidence that the
grievance is in fact arbitrable. also weighs against the advis-
ability of deferral.'
I further find that Respondent discriminatorily denied
vacation pay to its employees and unilaterally changed
their wages and conditions of employment by its July I
refusal to make payment. As of that date the pay had ac-
crued for the requisite period July 1976-June 1977. Fur-
2 The above summary of the events which occurred during the meetings
of April I I October 4 are based on an amalgam f the credited estimon) of
bolh Jarvs and Faulkner.
"Citing Dubo Manufacturing Corporaion. 142 NLRB 431 (1963). and
Timken Roller Bearing Compnwy, 70 NLRB 500 (19461
1 In view of these reasons. I find it unnecessary Io pass upon whether or
not the vacation pay question should be deferred specifically by reason of the
Board's holding in General American Transporiation Corporation 228 NLRB
808 (1977)1
therniore, the vacation clause in the governing collective-
bargaining agreement, article XXIII. Vacation, section 4.
states:
The plant will shut down for vacations for two
(2) weeks beginning the first Monday of July of' each
year. All employees shall take a vacation during that
period.
Thus. 2 weeks of the employees' total vacation each ear
was in fact permanently fixed or "scheduled" very precisely
by the terms of the contract regardless of 'whether or not the
Company made any type of' formal announcement remind-
ing employees that the 2-week vacation period would begin
on a certain date, a fact readily ascertainable by observing
when the first Monday of July fell on the calendar. Finally.
Faulkner's admission that he refused to pay the emplo ees
their vacation pay for this period as a consequence of their
being on strike. considered in the light of Respondent's il-
logical position that the vacation period was not "sched-
uled." persuades me that Respondent's refusal to issue the
vacation checks to the employees was motivated by desire
to retaliate against employees for striking and was not sim-
ply the result of an erroneous analysis and conclusion that
it was not obligated to make pay. I therefore find that Re-
spondent violated Section 8(a)(l 1) and (3) of the Act by fail-
ing and refusing to pay its employees their accrued vacation
pay as requested by the Union on July 5'5 Respondent's
conduct in this respect also constitutes a unilateral change
in wages and working conditions. in violation of Section
8(a)(5) of the Act, especially considering Respondent's posi-
tion that this matter was not a proper subject for negotia-
tion. Cf. Cas'llier Division of S'ehburg Corporatlion, 192
NLRB 290 (1971).
The General C'ounsel further argues that Respondent
violated Section 8(a)(1) and (5) of the Act by refusing to
furnish the Union with requested information relating to
unit work which the Company claimed it had found neces-
sary to subcontract as a result of the strike. The General
Counsel urges that this information was relevant and essen-
tial to the Union in order to intelligently bargain over the
Company's proposed elimination of the 32-hour guaranteed
workweek and subcontracting clauses from the contract.
Respondent. while admitting that it flatly refused to supply
the requested information. contends that the refusal was
justified, as stated to the Union, by the prospect that the
subcontractors would be picketed as "allies" and that. in
any event. it is not now obligated to supply the information.
since the Union abandoned its request, and the issue con-
cerning the 32-hour and subcontracting clauses was ulti-
mately settled at the bargaining table. I disagree. The
Board has held many times that an employer is obligated to
supply relevant requested information to assist the employ-
ees' collective-bargaining representative in intelligently per-
forming its functions of administering the contract, process-
ing grievances, and conducting negotiations. In the context
" In making this finding I consider it irrelevant that Respondent's
truckdrivers. represented by a different union under a different contract,
received their vacation benefits as required b, the provisions of thai conlract
Nor do I find it necessary to determine under the circumstances presented
whether or not Respondent would have violated Act absent proof o antl-
union molltivaltion
48
WALL.ACE METAL PRODUCTS. INC.
of the negotiations under consideration here, there were a
very few specific issues under the general headings of
wages, hours, and working conditions, over which the par-
ties are obliged to bargain, more vital to the employees'
interests than the proposed elimination of' the 32-hour-
workweek guarantee and the proposed loss of their contrac-
tual protection against the subcontracting of unit work.
Without this information the Union was forced to bargain
in the dark, without any opportunity to verify the Compa-
ny's position. Therefore, the information requested by the
Union clearly meets the Board's standard of relevance and
must be supplied unless some highly compelling reason dic-
tates otherwise. It is to this latter question that the Com-
pany addresses its argument that supplying the information
would necessarily reveal the identity of the subcontractors
and possibly subject them to picketing. In similar circum-
stances this argument has been rejected by the Board. and I
reject it here. In my view the importance of both parties
having access to information with which to intelligently
bargain and resolve important issues during contract nego-
tiations far outweighs whatever risks were involved to the
Company concerning possible picketing of its suppliers.
This conclusion is reinforced by the fact that at the time of
the Company's refusal to supply the information, the nego-
tiation had been proceeding for approximately 5 months,
and the employees were on strike. In this setting the
achievement of a contract and the restoration of industrial
peace through informed and meaningful collective bargain-
ing must take precedence over the mere possibility of lavftul
economic action being taken against Respondent's suppli-
ers. Legal remedies were, of course, available and were ap-
parently. as alluded to in the record, pursued by Respon-
dent where it felt allegedly unlawful economic action had
been taken by the Union. Lastly, Respondent argues that
any obligation to furnish information is excused, since the
Union abandoned its request, and the issues which
prompted the request were settled. Again I disagree. The
record shows that the Union persisted repeatedly in re-
questing the information concerning subcontracting at the
July 21 and 25 and August 9 meetings and that Respondent
each time refused, accompanying its refusal at times, with
an explanation. Thus. it is clear from a reading of the rec-
ord that by the end of the August 9 meeting. the Union was
insisting upon obtaining the information, and Respondent
did not intend to consent, Under these circumstances, to
require the Union to keep renewing its request repeatedly at
each meeting is not only futile, but tantamount to playing a
broken recording in the vain hope that at some time or
other one may eventually hear the end of the selection. Al-
though the transcript shows that the parties reached agree-
ment, in principle. on the issue of the 32-hour and subcon-
tracting clauses at the August 16 meeting, this
understanding was a part of a package proposal which was
rejected and therefore binding on no one. Furthermore, it is
clear that from July 21 until August 16. negotiations were
substnatially impeded by the Company's refusal to supply
this relevant information. I find that Respondent violated
Section 8(a)(1) and (5) of the Act by refusing to supply the
requested information on subcontracting to the Union.
The General Counsel also contends that Respondent vio-
lated Section 8(a)(5) of the Act by withdrawing proposals
previously agreed to. The record shows that at the May 5
meeting the Company presented the Union with a package
proposal which Rogers said was its final offer. Later that
da) this offer was rejected b the union membership. and
the strike began at 12:01 a.m. on May 6. Subsequently, on
May 6, the Company notified the Union that it was with-
drawing the package proposal. which the union member-
ship had already rejected. At the outset of the negotiations
the parties demonstrated an intent to negotiate in the tradi-
tional manner of discussing noneconomic items first and
economic items last. with all agreements to remain tentative
until a final and binding contract was reached. To interpret
the parties' procedural intentions in any other way would
be a distortion of the facts. for the record demonstrates that
although various items were agreed upon in principle and
set aside as the negotiations continued. throughout their
many meetings both sides utilized with increasing re-
quenc., and eventually exclusively, the package proposal in
bargaining. wherein eery item had to he accepted, or the
entire package was rejected. It is elementary contract law
that once an offer is rejected. it may' he withdran. Thus.
when on May 5 the union membership rejected the Compa-
nWs final offer. nothing was finally agreed to, and the ('om-
pany withdrew it on May 6. The Union clearly undestood
this principle, as evidenced bh its subsequent reminder to
the Company at a later meeting that one of' its proposals
was part of a package proposal which must he entirel ac-
cepted or entirely rejected. I find that Respondent did not
violate Section 8(a)( I) and (5) of the Act bh the withdrawal
of its May 5 proposal. including items previously agreed to
in principle.
I also find that the sum total of' Respondent's conduct.
including those allegations discussed above. does not con-
stitute overall had-faith bargaining h e videncing a lack ot'
intent to reach any final and binding agreement or an intent
to undermine the Union and destroy its majority status. An
examination of the entire course of the negotiations rex eals
that from the beginning the parties made significant pro-
gress. reaching tentatit e arements on many significant
items. The negotiations were entirel 5 free from acrimonious
conduct and accusations of' bad-faith or unlawful conduct.
such as frequently appear in proceedings containing an
overall bad-faith issue. More significantly. at a special
meeting held on April II for the purpose of briefing the
union oflicials concerning the Company's forthcoming eco-
nomic proposal. Respondent not only displayed an unusual
openness and candor in discussing its economic condition
but also solicited the Union's advice concerning how best to
present its economic package in order to avoid an ultimate
deadlock on the question of money. At subsequent bargain-
ing meetings the Company's economic proposal reflected
that advice. Nevertheless, the proposal was ultimately re-
jected by the membership. despite the fact that Respondent
couched its final economic offer in terms of four options.
Furthermore. a meeting-by.meeting examination of the evi-
dence reveals that. like the Union. the Company submitted
numerous proposals and counterproposals supported hb,
lengthy discussion and reasons, and, as of the last meeting
which was the subject of these proceedings. the parties had
failed to reach an understanding in principle on only three
issues, albeit important ones: money. contract term, and
vacations. In sum I find that Respondent simply engaged
49
DECISIONS OF1 NATIONAL LABOR RELATIONS BOARI)
in hard bargaining and that its overall posture was one of
good faith. Considered in this context. I find that Respon-
dent's unlawful conduct with respect to its refusal to pay
accrued vacation pay to its employees and its refusal to
furnish relevant information to the Union. as fund above.
is insufficient either standing alone or when considered in
the total context of proving a lack of intention to reach an
agreement and a positive intention to undermine or destroy
the Union as alleged in the complaint. Thus, I find that
Respondent did not violate Section 8(a)(5) and (1) of the
Act in this respect.
Finally. I find that the strike of Respondent's employees
which began on May 6 was prolonged and converted to an
unfair labor practice strike on July I by Respondent's un-
lawful refusal on that date to pay its employees their ac-
crued vacation pay. I further find that the strike was also
prolonged by Respondent's unlawful refusal to furnish the
Union with the requested subcontracting information, as
illustrated by Jarvis' remarks to the assembled employees at
the July 31 membership meeting. Unquestionably. as Re-
spondent argues, the strike began as an economic strike,
and as of the final meeting which gave rise to these proceed-
ings, September 20. economic issues separated the parties.
It is also plain, however, that by Respondent's unlawful
conduct in refusing to pay its employees the vacation pay
owed to them and in keeping the duly designated represen-
tatives of its employees in the dark concerning the vital
topic of what work had been subcontracted by their em-
ployer. Respondent thereby exacerbated an already difficult
situation and prolonged the strike.
CON('I.USIONS O() LAX
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(2). (6). and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By failing and refusing to pay its employees their va-
cation pay. accrued during the period July 1. 1976. through
June 30, 1977. for the normal 2-week vacation period in
July 1977. as specified in the controlling collective-bargain-
ing agreement between Respondent and the Union. Re-
spondent unilaterally changed the wages, hours. working
conditions, and terms and conditions of employment of its
employees without advance notice and bargaining with the
Union and also retaliated against its employees for going on
strike on May 6, 1977. in violation o Section 8(a)( ), (3),
and (5) of the Act.
4. By refusing to furnish the Union with requested infor-
mation concerning the work subcontracted by Respondent
during the strike in order that the Union could perform its
function as statutory bargaining representative in negotia-
tions. Respondent violated Section 8(a)(1) and (5) of the
Act.
5. The strike of Respondent's employees which began at
12:01 a.m. on May 6, 1977, was prolonged by the unfair
labor practices of Respondent and was therefore converted
to an unfair labor practice strike on July 1. 1977. the date
on which Respondent first refused to issue employees their
vacation checks.
6. Respondent did not violate the Act in any respects
other than those specifically found.
'Tiii RisIuI)Y
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order that Re-
spondent cease and desist therefrom and take certain affir-
mative action designed to effectuate the policies of the Act.
Accordingly, I find it necessary to order that Respondent.
upon request, furnish to the Union information concerning
bargaining unit work subcontracted by Respondent when-
ever such information is relevant to the performance of the
Union's statutory function as collective-bargaining repre-
sentative. '°
Having found that Respondent violated Section 8(a)( I).
(3). and 5) of the Act on July I. 1977. by unilaterally and
discriminatorily failing and refusing to pa! its employees
their accrued vacation pay lbr the Jul' 1977 vacation pe-
riod. its governed by the parties last collective-bargaining
agreement. I shall order Respondent to reimburse them
their vacation pay for this period. backpaN to be computed
with interest as prescribed in F: I'. 11'oolworth (COmali"'. 90
NLRB 289 (195()). and Florida Steel (por,,io,. 231
NILRB 651 (1977).1 I shall also order that Respondent.
upon request, bargain with the Union concerning any pro-
posed changes in employees' vacation benefits.
Upon the foregoing findings of ilact and conclusions ot
law and the entirte record, and pursuant to Section 10(c} of
the Act. I hereby issue the following recommended:
ORDER'
The Respondent. Wallace Metal Products. Inc.. Rich-
mond. Indiana, its officers, agents, successors, and assigns.
shall:
I. Cease and desist from:
(a) Refusing to bargain collectively with the Union by
refusing to furnish the Union with requested information
concerning bargaining unit work subcontracted by Respon-
dent relevant to the performance of the Union's statutory
function as collective-bargaining representative.
(hb) Refusing to bargain collectively with the Union by
unilaterally and discriminatorily failing and refusing to pay
its employees their accrued vacation pay fr the period
specified in the section of this Decision entitled "The Rem-
edv."
I, The collective-bargaining unit is:
All production and maintenance employees o the Emploer. at its
Richmond. Indiana. plant. including group leader, exclusive of truck
drivers. garage mechanics. dockmen office cleric.ll employees. wailch-
men. Foremen. professional employees, guards and all supervisors as
defined In the Act.
'See. generally. Iii Plumbing Hewling (.. 138 NI.RB 716 (1962).
is In the event no exceptions are filed as provided by Sec. 10246 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions. and recommended Order herein shall, as prolided n Sec 10248
of the Rules and Regulations. be adopted by the Board and become its
findings. conclusions. and Order. and all objections thereto shall be deemed
waived lor all purposes.
50
WALLACE METAL PRODtI< IS INC .
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Bargain collectively with the Union by supplying the
Union, upon request. with information concerning bargain-
ing unit work subcontracted by Respondent relevant to the
Union's performance of its statutory function as collective-
bargaining representative.
(b) Reimburse its employees and make them whole for
any loss of vacation pay in the manner specified and for the
period specified in the section of this Decision entitled "The
Remedy."
(C) Upon request, bargain collectively in good faith with
the Union concerning any proposed changes in the wages.
hours, working conditions, and other terms and conditions
of employment of Respondent's employees represented by
the Union.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards.
personnel records, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this
Order.
(ef Post at its Richmond. Indiana. plant copies of the
attached notice marked "Appendix."l Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 25. after being duly signed by an authorized represent-
ative otf Respondent, shall be posted by it immediately upon
receipt thereof, and be maintained b it ft'r 60 consecutive
days thereafter, in conspicuous places. including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken b Respondent to insure that said
notices are not altered, defaced. or covered by ans other
material.
if) Notift' the Regional Director for Region 25., in rit-
ing, within 20 days from the date of this Order. what steps
Respondent has taken to comply herewith.
3. The complaint is dismissed in all respects other than
those specifically found.
"S In he eent that this Order is enforced b a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted hb Order of
the National t.ahor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States (Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board.
51