American Seating Co. of Mississippi

National Labor Relations Board - Board Decisions

Jun 20, 1969

176 N.L.R.B. 850 (N.L.R.B. 1969)

850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Seating Company of Mississippi and
Millmen Local Union 2604, United Brotherhood of
Carpenters and Joiners of America, AFL-CIO
Case 26-CA-3053
June 20, 1969
DECISION AND ORDER
BY MEMBERS BROWN , JENKINS, AND ZAGORIA
On December 11, 1968, Trial Examiner Fannie
M. Boyls issued her Decision in the above-entitled
proceeding , finding that Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended , and recommending that it cease
and desist therefrom and take certain affirmative
action , as set forth in the attached Trial Examiner's
Decision . The Trial Examiner further found that the
Respondent had not engaged in other unfair labor
practices alleged in the complaint and recommended
that such allegations be dismissed . Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
Act, 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 brief, and
the entire record in this case , and hereby adopts the
findings, conclusions , and recommendations of the
Trial Examiner.
We do not agree with our dissenting colleague's
interpretation of the facts regarding Respondent's
withdrawal of two proposals in the negotiation
meeting of April 8, and we note further that the
Trial Examiner's finding of a refusal to bargain has
a much broader basis than that discussed by our
colleague . In finding the refusal to bargain , the Trial
Examiner stated:
I find that Respondent by withdrawing , without
good cause , terms of a proposed contract to which
it had tentatively agreed , by conditioning its
continued acceptance of one term of the contract
to which it had tentatively agreed upon a
submission for ratification to all employees in the
bargaining unit , and by continuously questioning
the authority of the bargaining committee to
agree to proposals it made and seeking to control
the procedure by which the Union delegated or
authorized its bargaining representatives to act,
has failed and refused to bargain in good faith
with the Union , in violation of Section 8(a)(5) and
(1) of the Act.
As detailed more fully by the Trial Examiner, at
the April 8 meeting , and after some 5 months of
bargaining , Respondent ' s counsel conditioned its
making a firm offer on the Union committee's
submission of the offer to the full membership;
questioned how many employees were present at the
union meeting on March 13 where the employees
voted to accept the offer of February 12; asked the
Federal mediator to ascertain whether the union
bargaining committee had the authority it claimed;
stated that he did not believe the union committee
had the authority to sign the agreement ; proposed a
poll of employees to ascertain their wishes as to
lunch period and breaks, a proposal then under
discussion . By Respondent 's continued insistence on
submitting changes in contract proposals to a
referendum of employees , it was subverting the
authority and status of the bargaining representative
and intruding into the internal affairs of the Union
and its relationship to its members.'
Nor can we accept our colleague's
characterization that Respondent was merely
seeking a quid pro quo when it withdrew its
proposals for increased insurance benefits because
the union committee would not agree to
recommending acceptance of Respondent's
proposals . With respect to this item of insurance,
the Respondent and the Union had tentatively
agreed upon the Union's proposal for increased
insurance benefits at the bargaining meeting of
January 16, 1968 , and the benefits had not been
conditioned upon any action by the union bargaining
committee . It is with this background in mind that
Respondent 's subsequent conditional offer and its
withdrawal of increased insurance benefits must be
viewed . Moreover , Respondent's withdrawal
occurred after it knew that at a union meeting of
March 13 , employees had voted to accept
Respondent 's proposals , including the increased
insurance benefits . Thus , in bargaining sessions prior
to April 8, 1968, Respondent was willing to grant an
increase in insurance benefits, but when an
agreement appeared imminent, Respondent reneged
on its prior tentative approval . All of the parties
were well aware of the fact that the increase in
insurance benefits was of great importance to the
employees.
Respondent 's actions in withdrawing the
agreed-upon proposal regarding the change in the
lunch period and an addition of a 10-minute break
in the afternoon also belies its contention that it was
bargaining in good faith. In this regard , Respondent
insisted that the proposal be voted upon by either
employees within the unit or union members,
attempting to justify such insistence by its concern
for employee morale . However , as we view the
overall bargaining picture at this point, two
inconsistencies with Respondent's argument are
'N.L.R.B. v. Wooster Division of Borg- Warner, 356 U .S. 342 at
349-350; North Country Motors, Ltd., 146 NLRB 671, 674.
176 NLRB No. 118
AMERICAN SEATING CO. OF MISS. 851
readily apparent . One is that it was with the union
bargaining committee that . Respondent was
obligated to negotiate , and not with individual
employees . And secondly , in attempting to be the
guardian of employee morale by insisting on a vote
of employee wishes , Respondent as we previously
noted was subtley undermining the authority of the
duly constituted bargaining agent and intruding into
the affairs of the employees' relationship with their
bargaining agent . The fact that the parties
subsequently reached an agreement after the Union
filed a charge and the Board issued a
refusal-to-bargain complaint , does not in any way
change our conclusions that Respondent did not
bargain in good faith prior to the invocation of the
Board's processes . Therefore, we find , in agreement
with the Trial Examiner , that Respondent' s conduct
was inconsistent with its obligation to bargain in
good faith , and violated Section 8(a)(5) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent, American Seating
Company of Mississippi, Tupelo, Mississippi, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order.
MEMBER ZAGORIA, dissenting:
In my view, Respondent's conduct at the April 8
meeting did not constitute a refusal to bargain in
good faith. The Trial Examiner, in finding the
violation, relied primarily on two aspects of
Respondent's conduct: One concerning a proposal
made earlier with regard to insurance benefits, the
other concerning employees' break and lunch
periods. As to the first, the record shows that the
union membership had earlier rejected two contracts
offered by Respondent. At the parties' 10th
bargaining session on February 12, Respondent
stated it would offer increased insurance benefits if
the union committee would recommend acceptance
of Respondent's last proposals to its membership.'
The union committee flatly refused to do so. In my
view, Respondent was within its rights in not
renewing its offer for this increase at the April 8
bargaining meeting, as the requested quid pro quo
had not been forthcoming.
As for the change in lunch and break periods,
Respondent at a previous meeting had tentatively
'Respondent had never before included increased insurance benefits as
part of its own proposal . As the majority indicates , Respondent had,
towards the conclusion of the January 16 bargaining session, tentatively
agreed to the Union's proposal for increased benefits , but at that time a
number of other issues remained unresolved . When the Union negotiators
took Respondent's offer of January 16 to the membership , it was rejected.
The conditional offer referred to above came at the very next bargaining
session , on February 12.
agreed to a change requested by the Union.
Thereafter, employee Lambert, a former member of
the negotiating committee , advised the Employer
that a majority of the employees preferred the
current lunch and break periods, and gave a
plausible reason for their position . At the April 8
meeting , therefore, Respondent asked the Union to
find out what the employees wanted . When the
Union refused to do so , Respondent stated it would
now offer only a continuation of the current practice
regarding lunch and break periods .' In my view this
also was a permissible position for the Respondent
to take , in the circumstances.
The majority adverts to several statements made
by Respondent 's negotiators, questioning whether
the Union' s representatives had the authority to
agree to a contract without securing the approval of
the membership . While I agree that in some
circumstances this type of question might reveal bad
faith on the part of the party who asked it, I cannot
agree that such a conclusion is warranted here. The
parties held numerous bargaining sessions, and
concessions were made by both sides . The procedure
referred to by Respondent, that the union
negotiators take proposals back to the membership
for approval , was in fact the one practiced by the
union negotiators in previous meetings . At least in
one instance , the Union went back to its
membership at the request of the Federal mediator.
Respondent 's proposals had been twice rejected by
the membership , and it seems natural that
Respondent might inquire into whether the
membership would not have to approve any other
proposal it might make . At no point did Respondent
insist to the point of impasse that the Union follow
one procedure rather than another . The parties
finally reached agreement on July 24 , 1968, and
executed a signed contract . I am unwilling to say
that these circumstances are sufficient to support a
finding of bad faith bargaining.
Since I would find, contrary to the Trial
Examiner, that Respondent did not violate the Act
in the aforementioned respects , I would not find the
10-day strike commencing April 9 to have been an
unfair labor practice strike. I would remand to the
Trial Examiner for a determination of certain of the
strikers ' rights to reinstatement under the Laidlaw'
case, an issue not reached by the Trial Examiner.
'No impasse was reached at this meeting, since the union representatives
agreed to submit the Employer's last proposals to the union membership
on the following Friday, April 12.
The Laidlaw Corporation. 171 NLRB No. 175.
TRIAL EXAMINER' S DECISION
STATEMENT OF THE CASE
FANNIE M. BOYLS, Trial Examiner : This case was
tried before me at Tupelo, Mississippi, on July 31 and
August 1 and 7, 1968 . The complaint , which was issued
on June 27 , 1968 and amended on August 1, 1968, is
based upon a charge filed on April 11, 1968, and an
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amended charge filed on May 22 , 1968, by Millmen Local
Union 2604 , United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, herein called the Union,
alleging that Respondent , American Seating Company of
Mississippi , had engaged in unfair labor practices within
the meaning of Section 8 (a) (5), (3 ), and (1) of the Act.
Respondent filed an answer , denying that it had engaged
in any of the unfair labor practices alleged . After the
conclusion of the hearing both counsel for the General
Counsel and for Respondent filed helpful briefs.
Upon the entire record , upon my observation of the
witnesses and their demeanor as they testified , and upon a
consideration of the briefs of the parties , I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Mississippi corporation , having an
office and place of business at Booneville , Mississippi,
where it is engaged in the manufacture of church
furniture . During the 12-month period preceding the
issuance of the complaint , Respondent , in the course and
conduct of its operations , purchased and received at its
Booneville plant materials and supplies valued in excess of
$50,000 directly from points located outside the State of
Mississippi and, during the same period , it sold and
shipped products valued in excess of $50,000 directly to
points located outside the State of Mississippi. On the
basis of these facts, which are admitted , I find that
Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act and that it will
effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I find that Millmen Local Union
2604 , United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES ALLEGED
A. Issues
Following the certification of the Union on October 27,
1967, as bargaining representative of Respondent's
employees in an appropriate bargaining unit , Respondent
and the Union met upon numerous occasions in collective
bargaining negotiations.' It is the General Counsel's
contention that Respondent, in a number of respects,
unlawfully refused to bargain with the Union at the 11th
bargaining conference held on April 8, 1968 , that this
refusal to bargain caused a strike which occurred on April
9, and that on April 19, when the strike was called off and
all the employees unconditionally offered to return to
work , Respondent unlawfully denied reinstatement to 15
of the strikers whose jobs had been filled during the strike.
As an alternative theory, the General Counsel alleges that
even if the strike be considered an economic rather than
an unfair labor practice strike , Respondent nevertheless
violated Section 8(a)(3) of the Act by failing to reinstate
some of the 15 replaced strikers to jobs of the
replacements which became available subsequent to the
date the strikers applied for reinstatement . There is little
dispute as to the essential facts . The principal issue is
whether Respondent's conduct at the bargaining table on
and after April 8, 1968, constituted a refusal to bargain in
good faith within the meaning of Section 8(aX5) of the
Act.
B. The Evidentiary Facts
1. Negotiations prior to the April 8, 1968, bargaining
session
Following the Union ' s request for bargaining on
November 13, 1967, Respondent and the Union met in
numerous bargaining sessions, with a Federal Mediator
attending after the first three or four meetings. At the
conclusion of the sixth meeting held on December 15,
1967, after the parties had been unable to agree upon a
package proposal submitted by the Union , Respondent,
through its chief negotiator and counsel , James E. Price,
suggested that its last proposal be submitted to the union
membership with a recommendation for its acceptance.
The Union 's chief negotiator , International Representative
W. J. Smith , replied that a union meeting would be
scheduled for that night and that Respondent 's proposals
would be submitted to the meeting but that he would not
recommend their acceptance . After Respondent's
proposals were rejected by the union membership , further
bargaining sessions were held.
Toward the conclusion of the ninth bargaining
conference on January 16 , 1968, Respondent and the
Union had tentatively agreed upon the Union ' s request for
increased insurance benefits but were still unable to reach
an agreement on a number of other terms of an
agreement . Union Negotiator Smith told Respondent's
representatives that he would submit Respondent's last
proposals to a vote of the union membership.'
At a union meeting held on January 26, the union
membership voted to reject Respondent 's latest offer and
authorized a strike to be called but without setting a date
for its commencement . Union Vice President Taylor
informed Respondent 's plant manager , Booth , of the vote
of the membership shortly thereafter.
A 10th bargaining conference was held on February 12.
Respondent promised to furnish and later did furnish
certain information requested by the Union but offered no
new contract concession to the Union . During the meeting
Respondent stated that it was conditioning its offer of the
increased insurance benefits tentatively offered at the
previous bargaining session upon the union committee's
recommending acceptance of Respondent ' s last proposals
to its membership . The union committee stated that it
would not make any such recommendation . In this last
offer , aside from the insurance benefits , the parties were
in disagreement as to wages , the duration of the contract,
time and a half pay for all hours worked over 8 hours per
day, working supervisors and Respondent ' s right to
subcontract.
On March 13, the Union had a special meeting at
which the membership voted to accept Respondent's last
'The unit found to be appropriate in the representation proceeding
consisted of all production and maintenance employees , including yard
employees and plant clericals at Respondent's Booneville, Mississippi,
plant, excluding all office clerical employees , professional and technical
employees, guards and supervisors as defined in the Act.
'The Union 's proposal regarding insurance benefits , which Respondent
tentatively accepted , would have increased the current rate for a hospital
room from $ 10 to $15 a day and the current payment for surgical benefits
from $200 to $300.
AMERICAN SEATING CO. OF MISS. 853
proposals, including the proposal for increased insurance
benefits.'
On March 14, Union President Clyne Wilemon and
two other members of the Union' s negotiating committee
(but not including the Union's chief negotiator, W. J.
Smith) met with Plant Manager Booth and Personnel
Manager Jimmy Smith. They told Respondent's
representatives that they wanted a meeting to sign a
contract, to discuss the wage increase which went into
effect on February 1, 1968, insurance benefits and a
further wage increase . Booth told the committee members
that no contract could be signed until all issues had been
resolved and that negotiations would have to proceed, as
in the past, through the regular negotiating committees.
He promised to get in touch with Respondent's chief
negotiator and attorney, James E. Price , and set up a
meeting.
2. The April 8, 1968, bargaining session
A bargaining meeting was arranged for April 8. At this
conference, Respondent 's chief negotiator , Price , presented
a draft of an agreement containing all the provisions
which Respondent had been willing to agree to at the
February 12 meeting , except the provision for increased
insurance benefits. After supplying some information
previously requested by the Union in regard to the wage
increases put into effect on February 1, and some
discussion of those increases shown in an appendix to the
proposed contract, Price announced that one of the
employees, Lambert, had told Plant Manager Booth that
a majority of the employees preferred to eliminate the
afternoon break (to which Respondent had theretofore
tentatively agreed ) and continue the current practice of
having lunch at noon , instead of at 11:30 a.m . as provided
in the contract proposal , because some of them had wives
with whom they wished to continue having lunch. Price
expressed the desire to abide by the choice of the majority
of the employees in the unit regarding this matter. Union
Representative Smith informed Respondent's
representatives that Lambert was no longer a member of
the Union' s negotiating committee and had no authority
to propose a change in any contract provision.
Price then told the union committee that Respondent
was withdrawing from the proposed contract which
Respondent had just submitted, the shift preference
provision (art. XIV, sec. 7, G. C. Exh. 2), explaining that
Respondent realized that it had made a serious mistake in
making this proposal because it could end up with all the
older and more experienced employees being on the first
shift. Union Representative Smith protested that the
Union had already voted to accept Respondent's proposed
offer of a contract made at the last bargaining session and
that Plant Manager Booth had been informed of this vote.
Price then questioned Union President Wilemon about
when the union meeting had been held and what he had
told Booth, and Wilemon stated that the meeting had
been held on the night before the conference with Booth
and that he had informed Booth of the Union's desire to
meet with management representatives to sign the contract
and discuss an increase in wages and two other items.
Price asked how many employees had been present when
'At the hearing Respondent sought to prove that this meeting was not
called pursuant to the provisions of the . Union 's constitution. For the
reasons stated by the Board in North Country Motors, Inc., 146 NLRB
671, 674, it is immaterial to the issues in this case whether the Union's
constitution was complied with.
the vote to accept the proposed contract had taken place.
Smith refused to divulge this information or to permit
Wilemon to do so and told Price that it was none of his
business.
Price stated that legally no agreement had been reached
because the union membership had twice voted to reject
Respondent ' s last proposals and this rejection had legally
terminated Respondent 's offer until it was renewed. Price
said that he would renew the offer but only with some
modifications and that if the union bargaining committee
would submit Respondent ' s new proposals to a vote of the
union membership , Respondent would make the Union a
firm offer for a binding contract . Union Representative
Smith stated that he would not call a meeting for such a
vote and insisted that the union bargaining committee had
authority to sign and was willing and wanted to sign the
contract which Respondent had proposed at the prior
meeting . This proposed contract , except for the insurance
provision , was the same as the written proposed contract
delivered to the union representatives at the
commencement of the April 8 meeting.
Price then asked the Federal Mediator to ascertain
whether the union bargaining committee had the authority
it claimed. Following private conferences between the
mediator and both parties , the meeting resumed. Price
stated that he did not believe that the union committee
had the authority to sign the agreement without another
vote of the membership ; that he had four modifications of
the proposed contract in mind but that if the Union would
submit Respondent ' s prior proposals with two
modifications - elimination of the shift preference
provision and an elimination of the afternoon break -
Respondent would forego the other modifications. Smith
did not agree to this proposal.
Price then proposed a poll of all the employees in the
unit (Union as well as nonunion ) to ascertain their
preference as to the lunch period and breaks and stated
that Respondent would abide by the decision of a majority
of all the employees . Smith refused to agree to any such
poll of all the employees in the unit . Respondent
thereupon withdrew its written offer of a lunch period at
11:30 a.m . and a 10-minute afternoon break in addition to
the customary morning break and offered only a
continuation of its current practice of a noon lunch period
and a single break in the morning . Price then asked if
Smith would submit to a "secret" vote either of all the
employees in the unit or to the union membership
Respondent ' s prior proposal with the elimination of the
shift preference and a continuation of Respondent's
current practice as to the morning break and lunch period.
Smith asked for a recess.
Following a 40-minute recess , Smith proposed that at a
special union meeting to be called by Union President
Wilemon for April 12, he would submit for a vote of the
union membership their preference as to the lunch period
and break periods and Respondent' s proposal for a
contract with the shift preference eliminated . Respondent
refused to agree to this proposal . Price stated in his
affidavit, "I did not give the Union at this time a choice
on the lunch period, because Smith would not let all the
employees vote on it ." Price stated, however, that
Respondent would make the Union a firm offer of a
contract based on the last written proposal (which
eliminated the provision for increased insurance benefits)
with the elimination of the afternoon break and shift
preference if Smith would submit that proposal to the
union members . Price added that this was Respondent's
best and final offer . Smith agreed to hold a union meeting
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for that purpose on the following Friday, April 12, but
stated that he was sure the membership would not accept
Respondent's last proposals.'
3. The strike
On the following day, April 9, during the lunch period,
Union President Clyne Wilemon reported to a group of
employees with whom he was lunching about what had
occurred at the bargaining session on the preceding day.
He told them that Respondent had taken from its
previous contract offers the provision for shift preferences,
the increased insurance benefits and the afternoon break.
' About 40 employees participated in the discussion.
Finally, when one of the employees asked what should be
done about this situation , Wilemon replied that they
would either have to accept Respondent 's terms or go on
strike . The employees' decided , after an informal voice
vote, to go on strike at 1:30 that afternoon. The
employees walked out at the appointed time.
The strike was terminated on April 19, when all the
strikers made an unconditional offer to return to work.
All except 15 of them, whose jobs had been filled by
replacements during the strike , were reinstated.
4. Subsequent negotiations resulting in a signed
contract on July 24, 1968
The next bargaining conference was held on April 25.
After a discussion of the reinstatement of the strikers,
Union Representative Smith offered to sign the
Company ' s last proposed contract with the increased
insurance benefits , two breaks , a noon lunch and a shift
preference clause . Price asked Smith if the union members
had authorized the committee to sign such a contract and
told him that Respondent was willing to consider this
offer if the bargaining committee had authority to make
such an offer, but that the contract would be with the
local, not the committee , and had to be binding. Smith
did not reply as to the committee ' s authority but repeated
that the committee would sign such a contract. After
consulting with the mediator , Price stated that
Respondent would like a recess in which to prepare a firm
proposal in which Respondent might or might not include
all the Union ' s terms except the shift preference clause.
He added , however , that Respondent ' s proposal "would
have to be submitted to a vote of the union members since
it would not be identical with the committee's alleged
authority ." Smith then agreed to give Price a week in
which to submit this proposal.
The parties thereafter held two more bargaining
conferences and a contract was finally executed on July
'1n his affidavit, Price indicates that Smith offered to sign Respondent's
proposed contract with the elimination of the shift preference and
afternoon break provisions if the contract provided for a 12 minute instead
of the current 10-minute morning break ; that Price said that he would
agree to this only if the proposal was submitted to the union membership;
and that Smith agreed to submit it. I am satisfied , however, from the
testimony of Smith and Booth , that Smith never offered to sign any
contract which eliminated the insurance benefits proposal and that the
proposal to be submitted to the union membership was as described above
in the text . Other than just mentioned , there is no substantial dispute as to
what occurred at the bargaining sessions. The above fi ndings are based
upon statements made in the affidavit of Respondent 's attorney and chief
negotiator , as supplemented and clarified by the testimony of Respondent's
plant manager and of the Union's chief negotiator , who refreshed his
recollection on the witness stand from notes which he had made during the
course of the bargaining.
24, 1968. The contract included a provision for the same
lunch and break periods as those contained in the
proposed written contract submitted by Respondent at the
commencement of the April 8 conference, a modified shift
preference clause , and a provision increasing insurance
benefits from $10 to $18 a day for a hospital room and
from $200 to $350 for surgical benefits. Respondent
offered this increase in insurance benefits in an amount
even greater than it had conditionally offered on January
16 after the Union agreed with Respondent that
Respondent's product draftsmen and billers should be
considered technical employees and excluded from the
bargaining unit.
5. Analysis and conclusions
a. The refusal to bargain
The General Counsel contends initially that Respondent
violated Section 8(aX5) of the Act by refusing on April 8,
1968, to reduce to writing and sign a collective bargaining
agreement , the terms of which had been agreed upon by
the parties . This contention must be rejected for two
reasons . In the first place , as Respondent points out,
under recognized principles of contract law, Respondent's
offer made at the February 12 bargaining conference was
terminated by the action of the union bargaining
representatives at that meeting in rejecting Respondent's
offer . In the second place , even if the offer be considered
as having continued in effect , it does not appear that the
Union thereafter clearly and unconditionally accepted the
offer made by Respondent prior to the time Respondent
apprised the Union negotiators on April 8 of the
modifications Respondent desired . On March 14, when
the employee members of the union bargaining committee
told Plant Manager Booth that the union committee was
ready to accept Respondent ' s last offer, they requested a
meeting between Respondent ' s and the Union's
representatives , not only for the purpose of signing a
contract, but also of discussing improved insurance
benefits and alleged inequities in the wage increases
granted by Respondent in February 1968 - matters
which apparently would have required some further
bargaining before all terms of the proposed contract were
agreed upon.
My conclusion that Respondent did not on April 8
refuse to sign a contract whose terms on that date had
been mutually agreed upon does not, however , dispose of
the question whether Respondent failed to bargain in good
faith on that date , as alleged in the complaint . The Board
aptly stated in Shannon and Simpson Casket Co., 99
NLRB 430, 436, enfd. 208 F .2d 545 (C.A. 9):
. . . the rules by which it is determined whether the
parties have made a contract are not the rules by which
it is determined whether or not the parties have
bargained in good faith . . . . The obligation under the
Act contemplates that the parties come to the
bargaining table with a fair and open mind and a
sincere desire and purpose to conclude an agreement on
mutually satisfactory terms . Reliance upon the rules of
contract law so as to forestall and avoid agreement does
not satisfy that obligation.
I am constrained to conclude upon all the evidence that
Respondent did not on April 8 approach the bargaining
table with a fair and open mind and a sincere desire and
purpose and to conclude an agreement on mutually
satisfactory terms. Respondent knew that the union
AMERICAN SEATING CO. OF MISS. 855
membership had on January 26 authorized its bargaining
committee to call a strike rather than accept the terms
then proposed by Respondent as its last offer but that the
bargaining committee had not done so . It must have been
apparent to Respondent that by April 8 the Union was
hoping to avoid strike action by accepting contract
proposals substantially the same as those proposed by
Respondent at the January 16 and February 12 bargaining
conferences . Instead of cooperating to conclude an
agreement and avoid strike action , however, Respondent
proceeded to withdraw from its contract proposals three
important provisions to which it had previously tentatively
agreed . One of these provisions was the one calling for an
increase in insurance benefits from $ 10 to $15 a day for a
hospital room and from $200 to $300 for surgery.
Respondent never assigned any reason for its
unwillingness on April 8 to grant this benefit which it had
been willing to grant on January 16 and February 12. The
fact that on July 24 , when a contract was finally executed,
Respondent agreed to an even greater increase in these
insurance benefits ($ 18 for a hospital room and $350 for
surgery) warrants the inference that on April 8
Respondent was not really opposed to granting the lesser
increases . Whatever may be said for Respondent ' s legal
right to do so under principles of contract law, its action
clearly tended to forestall and avoid the reaching of a
mutually satisfactory agreement . The withdrawal of this
offer at this late and critical stage of the bargaining
process , without any attempted justification , was, in my
view , inconsistent with good faith bargaining.
Another tentative proposal which Respondent withdrew
on April 8 was that relating to shift preference. It is
understandable that Respondent could in good faith have
wanted to withdraw this proposal for the reason explained
to the Union , its fear that operating under that provision
might result in all of its older and experienced employees
working on the first shift , leaving other shifts inadequately
staffed . The Union apparently recognized the
reasonableness of Respondent's position in this respect
and agreed in the final contract to a modification of the
shift preference provision to protect Respondent against
the eventuality it feared . Accordingly , no inference of bad
faith is drawn from Respondent ' s proposed elimination of
the shift preference provision.
The other tentative proposal which Respondent
withdrew on April 8 , was that providing for a change in
the lunch period from noon to 11:30 a . m. and the addition
of a 10-minute break in the afternoon in addition to the
morning break already given the employees . The position
taken by Respondent in regard to this provision, in my
view , was clearly inconsistent with its obligation to
bargain in good faith . Respondent ' s withdrawal of its
previous offer regarding this matter was based , not upon
any detriment to itself, but solely upon the union
bargaining committee ' s refusal to submit to a referendum
of all employees in the bargaining unit the question
whether they desired the proposed change . The procedure
to be followed by the employees ' chosen bargaining
representatives in determining whether to accept or reject
an employer proposal is not a mandatory subject of
bargaining under the statute . The mandatory subjects
consists only of "wages , hours, and other terms and
conditions of employment" (Section 8 (d) of the Act). The
question whether or not the bargaining representatives
shall seek an advisory vote of the employees or even of
the union membership settles no term or condition of
employment . In an analogous situation where a ballot
provision for strike authorization was sought by the
employer , the Supreme Court stated in N.L . R.B. v.
Wooster Division of Borg-Warner , 356 U . S. 342, 349-350:
The "ballot" clause . . . deals only with the relations
between the employees and their unions . It substantially
modifies the collective bargaining system provided for
in the statute by weakening the independence of the
"representative" chosen by the employees . It enables
the employer , in effect , to deal with its employees
rather than with their statutory representative.
To be sure, there was nothing unlawful in Respondent
calling to the attention of the bargaining committee the
fact that there might be some question as to whether a
majority of the employees preferred its tentatively
proffered afternoon break and earlier lunch period to the
current practice of a noon lunch period without the
afternoon break , and there was also nothing unlawful in
Respondent ' s mere request that a vote of all employees be
taken on this subject . It was Respondent' s insistence on
the employee vote when objected to by the Union and its
withdrawal of a provision to which it had theretofore
tentatively agreed because of the:Union ' s refusal to submit
such a referendum which made Respondent's conduct
vulnerable . By thus conditioning its continued willingness
to grant the lunch and break period offer contained in its
proposed contract , Respondent was subverting the
authority and independent status conferred by the Act on
the duly designated bargaining representative and
intruding into the internal affairs of the Union and its
relationship with its constituents . This conduct was
inconsistent with Respondent's obligation to bargain in
good faith with the Union. N.L.R.B . v. Corsicana Cotton
Mills, 178 F.2d 344 , 347 (C.A. 5); Roesch Transportation
Company , 157 NLRB 441, 446 ; N.L.R.B . v. Darlington
Veneer Co ., 236 F . 2d 85 , 88 (C.A . 4); Houchens Market
v. N.L.R . B., 375 F .2d 208 (C.A. 6); San Antonio
Machine and Supply Corp. v. N.L.R.B, 363 F.2d 633,
636 (C.A. 5).
Even aside from Respondent 's insistence on ratification
by all the employees of the lunch and break period
provision of its proposed written contract , Respondent, as
the General Counsel points out, in other ways at the April
8 and a subsequent bargaining conference , acted in
derogation of the Union ' s authority as the employee's
bargaining agent . On April 8 as well as at the next
bargaining conference on April 25 , Respondent questioned
the Union ' s bargaining authority and sought to intrude
into and itself control internal affairs of the Union. Thus,
on April 8, after Union Representative Smith stated that
the bargaining committee was ready to sign a contract
containing the terms offered by Respondent at the
previous bargaining conference on February 12, Price
stated that he did not believe the bargaining committee
had authority to sign such a contract . At one point he
questioned both Smith and Wilemon as to the number of
employees who had attended the March 13 special union
meeting, at which the union membership voted to accept
Respondent ' s latest proposed contract . Respondent offered
at the April 8 meeting to make a firm offer of a contract
only if the bargaining committee would submit
Respondent' s proposals to the union membership for a
vote . At another point Price requested that the
referendum on Respondent's proposal be by "secret" vote
of all employees or of the union members . Again at the
April 25 bargaining conference when Union
Representative Smith made a proposal for a contract
which the bargaining committee would be willing to sign,
Price questioned the bargaining committee ' s authority to
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sign and said that any proposal acceptable to the
Respondent would have to be approved by the union
membership.
As stated by the Board in North Country Motors, Ltd.,
146 NLRB 671, 674:
The Act imposes no obligation upon a bargaining agent
to obtain employee ratification of a contract it
negotiates in their behalf . In a case such as this a
requirement for ratification could only have been one
which the Union itself assumed . It was thus for the
Union, not for the Respondent , to construe the meaning
of the Union ' s internal regulations relating to
ratification.
It is no defense to Respondent 's unlawful intrusion into
the Union 's internal affairs that the Union upon occasions
gave in to Respondent's demands and did submit the
proposals to a vote of the union members or that the
designated bargaining representatives either voluntarily or
pursuant to internal union regulations (about which the
record is silent ) may have sought an advisory note of the
union membership on various employer proposals.'
Respondent ' s insistence upon this procedure
unquestionably frustrated and prolonged the bargaining
negotiations.
I find that Respondent by withdrawing , without good
cause , terms of a proposed contract to which it had
tentatively agreed , by conditioning its continued
acceptance of one term of the contract to which it had
tentatively agreed upon a submission for ratification to all
employees in the bargaining unit , and by continuously
questioning the authority of the bargaining committee to
agree to proposals it made and seeking to control the
procedure by which the Union delegated or authorized its
bargaining representatives to act , has failed and refused to
bargain in good faith with the Union , in violation of
Section 8(aX5) and (1) of the Act.
b. Conclusions respecting the strike
As already noted , the employees went on strike on
April 9 because of Respondent's withdrawal of proposals
previously made to increase the insurance benefits, to
provide for shift preferences and to grant an afternoon
break . Since it has been found that Respondent's
withdrawal of its tentative offer of increased insurance
benefits and the afternoon break constituted an unfair
labor practice , it follows that the strike was caused in
substantial part by such unfair labor practice. The
strikers , accordingly , were entitled to reinstatement upon
their unconditional offers to return to work on April 19.
By refusing to reinstate the 15 strikers listed in Appendix
A for whom Respondent had hired replacements during
the strike , Respondent engaged in an unfair labor practice
within the meaning of Section 8 (aX3) and (1) of the Act. '
CONCLUSIONS OF LAW
1. All production and maintenance employees, including
yard employees and plant clericals at Respondent's
Booneville, Mississippi plant, excluding all office clerical
'Here, as in Mc Quay-Norris Mfg. Co. v. N.L.R.B.. 116 F.2d 748,
751-752 (C.A. 7), con. denied 313 U.S. 565, it was to the Union's credit
that it sought to roach an accord on substantive provisions of a contract
while seeking redress before the Board for Respondent 's unlawful conduct.
'In view of this conclusion, it is unnecessary , of course, to consider the
General Counsel's alternative arguments based upon the Board's decision
in The Laidlaw Corporation, 171 NLRB No. 175.
employees , professional and technical employees, guards
and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
2. At all times since October 19, 1967, the Union has
been the exclusive representative of all the employees in
the aforesaid unit for the purposes of collective bargaining
with respect to rates of pay, wages , hours of employment,
and other terms and conditions of employment.
3. By refusing on and after April 8, 1968, to bargain in
good faith with the Union, Respondent has engaged in an
unfair labor practice within the meaning of Section 8(aX5)
and (1) of the Act.
4. The aforesaid unfair labor practice occurring on
April 8 caused a strike among Respondent 's employees
commencing on April 9, 1968.
5. By failing and refusing to reinstate the 15 strikers
listed in Appendix A who unconditionally offered to
return to work on April 19, 1968, Respondent has
discriminated against said employees in violation of
Section 8(aX3) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(5), (3),
and (1) of the Act, my Recommended Order will require
that Respondent cease and desist therefrom and take
certain affirmative action necessary to effectuate the
policies of the Act.
Since Respondent subsequent to the, conduct herein
found to constitute a violation of Section 8(a)(5), has
entered into a 3-year contract with the Union , I do not
believe it would effectuate the policies of the Act to
provide an affirmative bargaining order. An order to cease
and desist from the conduct herein found to contravene
the requirements of good faith bargaining should be
sufficient to remedy the refusal to bargain herein found.
To remedy Respondent 's unlawful refusal to reinstate,
upon their applications , the 15 striking employees listed in
Appendix A, my Recommended Order will require that
Respondent offer them reinstatement to their old or
substantially equivalent jobs, without prejudice to their
seniority or other rights and privileges , dismissing, if
necessary , any replacements hired subsequent to April 19,
1968, and make each such striker whole for any loss of
pay he may have suffered from April 19, 1968 , when he
applied for reinstatement , to the date he is offered
reinstatement , less his interim earnings . The backpay shall
be computed in accordance with the formula prescribed in
F. W. Woolworth Company, 90 NLRB 289, with interest
at the rate of 6 percent per annum as provided in Isis
Plumbing & Heating Co., 138 NLRB 716.
Because I believe that Respondent 's violations of the
Act stemmed from an erroneous view of Respondent's
statutory duties and obligations under Section 8(a)(5) and
8(d) of the Act rather than from a general purpose to
defeat unionism , my Recommended Order will not include
a broad cease and desist provision but will prohibit only
the specific unfair labor practices found and like or
related conduct.
AMERICAN SEATING CO . OF MISS.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this
proceeding , and pursuant to Section 10(c) of the National
Labor Relations Act as amended, it is hereby ordered that
Respondent , American Seating Company of Mississippi,
its officers, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
Millmen Local 2604 , United Brotherhood of Carpenters
and Joiners of America , AFL-CIO, as the exclusive
representative of its employees in the following
appropriate unit:
All production and maintenance employees , including
yard employees and plant clericals at Respondent's
Booneville , Mississippi , plant, excluding all office
clerical employees , professional and technical
employees , guards and supervisors as defined in the
Act.
(b) Discouraging membership in the above -named labor
organization by discriminatorily failing or refusing to
reinstate any of its employees who went on strike on April
9, 1968 , or by discriminating in any other manner in
regard to their hire or tenure of employment or any term
or condition of their employment.
(c) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise of
their rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act.
(a) Offer to each of the employees named in Appendix
A immediate and full reinstatement to his former or
substantially equivalent position , without prejudice to his
seniority or other rights and privileges previously enjoyed,
and make him whole for any loss of pay he may have
suffered by reason of Respondent's refusal to reinstate
him upon his unconditional application for reinstatement,
in the manner set forth in the section of this Decision
entitled "The Remedy ." Notify said employees, if
presently 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 Act of 1948 , as amended,
after discharge from the Armed Forces.
(b) Preserve and, upon request , make available to the
Board or its agents, for examination and copying, all
payroll and other records useful or necessary to enable the
Board to determine the amount of backpay due and the
right to reinstatement under the terms of this Order.
(c) Post at its plant in Booneville , Mississippi , copies of
the attached notice marked "Appendix B.1'7 Copies of
such notice , on forms to be provided by the Regional
Director for Region 26, after being duly signed by an
authorized representative of Respondent , shall be posted
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted . Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced or covered by any other material.
'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
857
(d) Notify said Regional Director , in writing , within 20
days from the receipt of this Decision , what steps the
Respondent has taken to comply herewith.'
Appeals Enforcing an Order" shall be substituted for the words, "a
Decision and Order."
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps Respondent
has taken to comply herewith."
APPENDIX A
List of employees who participated in strike and were
denied , reinstatement to their former or substantially
equivalent jobs following their unconditional application
for reinstatement on April 19, 1968.
Gene Corbin
Shields Tennison
Wm. Bellamy
James Chase
Bobby Shockley
Billy Flanagan
James Johnson
Doyle Taylor
P. B. Thorton
James Lee Davis
C. Clyde Nichols
Jimmy Moore
James Hitchcock
Leland Garner
Jerry Ward
APPENDIX B
NOTICE TO ALL EMPLOYEES
We are posting this notice in compliance with the
Recommended Order of a Trial Examiner of the National
Labor Relations Board who , after a hearing in which all
parties had an opportunity to present their evidence, found
that we had violated the law . We hereby notify our
employees that:
WE WILL offer to each of the employees listed below
immediate and full reinstatement to his former or
substantially equivalent position , without prejudice to
his seniority or other rights and privileges previously
enjoyed , and make him whole for any loss of pay he
may have suffered between April 19, 1968 , when he
applied for reinstatement , and the date he is offered
reinstatement.
Gene Corbin Doyle Taylor
Shields Tennison P. B. Thorton
Wm. Bellamy James Lee Davis
James Chase C. Clyde Nichols
Bobby Shockley Jimmy Moore
Billy Flanagan James Hitchcock
James Johnson Leland Garner
Jerry Ward
If any employee named above is in the Armed Forces
of the United States , we will notify him of his right to
full reinstatement, upon application , after discharge
from the Armed Forces.
WE WILL NOT in the future refuse to bargain in good
faith with Millmen Local Union 2604, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, by withdrawing , without good cause, any
contract provision to which we have previously
tentatively agreed; by conditioning our willingness to
agree to any term of a proposed contract upon the
Union 's willingness to submit such term to a vote either
of all employees in the appropriate bargaining unit or
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the union membership; or by interfering, in any
other manner with the internal decisions of the Union
with respect to whether and in what manner the union
members shall limit their bargaining agents ' authority
to make agreements with us.
AMERICAN SEATING
COMPANY OF MISSISSIPPI
(Employer)
Dated By
(Representative ) (Title)
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, "146 Federal
Office Building 167 North Main Street, Memphis,
Tennessee, Telephone, 901-534-3161.