AMF Inc.-Union Machinery Division

National Labor Relations Board - Board Decisions

Aug 1, 1975

219 N.L.R.B. 903 (N.L.R.B. 1975)

AMF INCORPORATED-UNION MACHINERY DIVISION 903
AMF Incorporated-Union Machinery Division and
Lodge No. 1738, International Association of Ma-
chinists and Aerospace Workers, AFL-CIO. Cases
4-CA-6862 and 4-CA-7070
August 1, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS , AND PENELLO
On March 26, 1975, Administrative Law Judge
Joel A. Harmatz issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and Charging Party filed an
answering brief to Respondent's exceptions.
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 briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, AMF Incorporated-
Union Machinery Division, Glen Rock, Pennsylva-
nia, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order.
November 29, 1974, which as amended at the hearing, al-
leged that Respondent violated 8(a)(5) and (1) of the Act,
by insisting upon restrictions on the composition of the
Union's bargaining committee during negotiations for a
new contract and bypassing the statutory bargaining agent
by offering employees new contract terms exceeding those
offered during duly constituted negotiating sessions. The
consolidated complaint, as amended, further alleges that
Respondent violated 8(a)(5), (3), and (1) of the Act by re-
ducing the work hours of unit employees, and thereafter by
notifying employees of a 2-week plant shutdown.
Respondent's answer denied that any unfair labor practic-
es were committed, and affirmatively alleged that all issues
raised by the complaint should be deferred to arbitration in
accordance with Collyer Insulated Wire, 192 NLRB 837
(1971). After close of the hearing, briefs were filed by the
General Counsel, the Charging Party, and the Respondent.
Upon the entire record, including my observation of the
witnesses , and after due consideration of the briefs filed by
the General Counsel, Charging Party, and the Respondent,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
AMF Incorporated-Union Machinery Division is a
New Jersey corporation, with a plant located at Glen
Rock, Pennsylvania, from which it is engaged in the manu-
facture of baking equipment. During the 12-month period
preceding issuance of the complaint, a representative peri-
od, Respondent, in the course of said operations, sold and
shipped from the Glen Rock facility goods valued in excess
of $50,000 to points located outside the Commonwealth of
Pennsylvania.
The complaint alleges, -the answer admits, and I find that
Respondent is, and at all times material has been, an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board 's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products. Inc.. 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings . We have
further considered the Respondent's contention that the Administrative
Law Judge has evidenced a bias against Respondent's position . We have
carefully considered the record and the attached Decision and reject these
charges of bias alleged by the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: A hearing
in this case was conducted in York, Pennsylvania, on De-
cember 16 and 17, upon charges filed on May 22, 1974, and
October 17, 1974, and a consolidated complaint issued on
The complaint alleges, the answer admits, and I find that
Lodge No . 1738, International Association of Machinists
and Aerospace Workers , AFL-CIO, herein called Local
1738, is , and at all times material has been , a labor organi-
zation within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
All issues under this complaint emerge from contract re-
newal negotiations between Respondent and Local 1738,
the exclusive bargaining representative of employees at
Respondent's plant in Glen Rock, Pennsylvania. The al-
leged unfair labor practices occurred after negotiations be-
gan, but prior to the parties having reached agreement on a
new 2-year contract.
The overall controversy may be described as another
round in the effort by AMF to avoid negotiating a new
219 NLRB No. 109
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract with a union negotiating team , augmented by
nonemployees, affiliated with other labor organizations,
but who are participants on the president's Committee of
IUD-AMF Company, herein called the "IUD-AMF
Committee."
The IUD-AMF Committee was established by the In-
dustrial Union Department , AFL-CIO, to lend assistance
to the various local unions throughout the country which
negotiate contracts with AMF in separate bargaining units.
That Committee was regarded as particularly competent in
four fringe benefit areas , namely health and welfare , insur-
ance, cost of living, and pensions. Prior to the outset of
Glen Rock negotiations, the membership of Local 1738
voted to participate in the IUD program, thereby electing
to seek assistance from the IUD-AMF Committee in the
above-defined areas during those negotiations.'
The Board has had occasion to consider an earlier dis-
pute between an AMF adjunct and another union growing
out of the latter's designation of the IUD-AMF Commit-
tee to assist in local negotiations . See Harley Davidson Mo-
tor Co., Inc., AMF, 214 NLRB No. 62 (1974), which in-
volved a similar dispute over the composition of a union's
negotiating committee.
The specific issues presented in the instant case are as
follows:
1. Whether the complaint raises issues of interpretation
under a collective -bargaining agreement , which, consistent
with Board policy enunciated in Collyer Insulated Wire,
supra, must be initially deferred to arbitration pursuant to
the parties' contractual grievance procedure.
2. If not, whether:
(a) Respondent unlawfully refused to bargain by refus-
ing to meet with the Union unless representatives of the
IUD-AMF Committee were excluded from the Union's
negotiating team.
(b) Whether Respondent refused to bargain in good
faith by making a new, higher contract settlement offer to
employees other than the duly designated union negotiat-
ing team.
(c) Whether Respondent refused to bargain in good
faith and unlawfully discriminated against employees by
reducing their daily work hours, and then announcing a
2-week closedown.
B. The Facts
AMF consists of several operating Divisions, which, in
turn, operate a number of manufacturing plants through-
out the world. Employees at AMF locations in the United
States are represented in separate collective -bargaining
units by different local unions affiliated with various inter-
national unions. At Glen Rock, the sole facility involved
here, the Charging Union has represented Respondent's
production workers for at least 20, and perhaps closer to
30, years.
1 Participation in the IUD program did not contemplate that the autono-
my or exclusive control over the union side of negotiations would rest in any
members of Local 1738's team other than the duly designated employee-
members of the Shop Committee. Representatives of the IUD-AMF Com-
mittee could not control or veto any proposals, agreements made , or other
positions take by the Shop Committee at Glen Rock.
Over the years, the bargaining relationship at Glen Rock
has been harmonious. In recent years, grievances have
been resolved without resort to arbitration, and new con-
tracts have been negotiated successively, without necessity
for strike action.
Historically, at Glen Rock the Union negotiated renewal
agreements through a team of five-six employees, called
the "Shop Committee," which was assisted by one District
Lodge representative.2 In recent years, George F. Spangler,
business representative of Lodge 98, normally accompa-
nied and acted as spokesman for the Shop Committee in
Glen Rock negotiations.
In June 1974, the then subsisting collective-bargaining
agreement was scheduled to expire. Early in 1974, there
were signs that the Union at Glen Rock would seek expan-
sion of its negotiating team . Thus, in February 1974, a
union representing employees at the Harley Davidson Co.,
Inc., AMF located in Milwaukee, Wisconsin, served notice
on AMF officials of its intention to have an expanded bar-
gaining committee present during the negotiations for a
new contract at that facility. The expansion involved repre-
sentatives of the IUD-AMF Committee.'
The first clear indication that composition of the union
negotiation team would be an issue in the Glen Rock nego-
tiations appeared through an exchange of letters in April
1974. Thus, after the Union, on April 17, 1974, notified
Respondent of its intention to terminate the existing con-
tract as of its expiration date on June 24, 1974, Spangler,
by letter dated April 23, wrote Clyde D. Rohrbaugh, plant
manager at the Glen Rock facility, advising that "other
international president" would like to join "us" in meeting
with company representatives within the next 30 days to
discuss (1) hospital, surgical and medical, (2) insurance, (3)
pension, and (4) cost of living issues. The Company,
through J. D. Erdman, director of industrial relations, for
the Union Machinery Division, AMF, of which Glen Rock
is a part, responded to Spangler by letter dated April 25,
1974, reciting the history of separate bargaining for the
Glen Rock unit, and expressing the desire to continue to
bargain as the parties had in the past.
Thereafter, the first negotiating session was held on May
7. No appearance was made at that time by representatives
of the IUD-AMF Committee. The Shop Committee and
Spangler represented the Union. Erdman, Rohrbaugh,
S. H. Bennett, vice president of manufacturing, Union
Machinery Division, and D. K. McCann, method analyst,
attended for the Company. At that meeting the Union ex-
plained the terms of its previously submitted contract pro-
posal.
The parties again met on May 13, without material vari-
ation in the composition of either negotiating team. During
this session, certain language changes were discussed and
agreements were reached in that area.
At the negotiating session of May 14, the Respondent,
2 Local 1738, the Charging Party, has a membership limited to employees
in the bargaining unit at Respondent's Glen Rock plant . District Lodge 98,
International Association of Machinists, is responsible for coordinating and
assisting all IAM affiliated locals, in the Commonwealth of Pennsylvania
including Local 1738.
3 See Harley Davidson Motor, Co, Inc, A MF supra.
AMF INCORPORATED-UNION MACHINERY DIVISION 905
late in the day , made an initial wage offer of an 18-cent
annual increase , in successive years, over a 3-year period.
In addition Respondent presented a counterproposal to
union demands for certain insurance changes . At that
point, the Union held a caucus which was followed by
Spangler's informing the Company that the Union was not
prepared at that meeting to discuss insurance , that the
Company's offer was made late in the day, and that insur-
ance was a proper subject for the next scheduled meeting,
which would be conducted with the presence of the ex-
panded committee , consisting of representatives of the
IUD-AMF Committee. At that point, the session appar-
ently ended without further discussion of the Company's
counterproposal . During the course of this meeting, Span-
gler, as he had on other occasions, advised the Company's
negotiators that the expanded committee would be bar-
gaining on behalf of Local 1738 only.
The sessions of May 7, 13, and 14 were conducted in
Glen Rock. Since the Union contemplated that representa-
tives of the IUD-AMF Committee would attend the meet-
ing scheduled for May 20, and as the facilities available in
Glen Rock were inadequate to accommodate the larger
group, prior to that session , a request was made of the
Company that it arrange that the meeting place be shifted
to the Holiday Inn located in downtown York, Pennsylva-
nia. By letter dated May 15, the Company advised the
Union that it had complied with that request.
On May 20, when Erdman and the other member of the
Company's negotiating team arrived at the Holiday Inn,
the expanded union negotiating committee was on hand.
In attendance were Spangler, the Shop Committee, and 10
representatives of the IUD-AMF Committee. Erdman ini-
tially stated that people were present who were not part of
the negotiating team defined in article XV of the applicable
collective-bargaining agreement . After each of those in at-
tendance identified themselves , as requested by Erdman,
he informed the union representatives that the negotiating
committee as constituted that day, stood in violation of
article XV of the contract, and that the Company would
not continue negotiations in the presence of the IUD-
AMF Committee representatives . Spangler , as spokesman
for the Union, countered Erdman, contending that the
Union had every legal right to have a committee present of
its own choosing . Spangler further advised that the expand-
ed committee was present for the sole purpose of negotiat-
ing for Local 1738. Erdman then reiterated the Company's
position that negotiations would not continue with the ex-
panded committee present , and he then, joined by all com-
pany negotiators , left the premises.
The May 20 bargaining session led to a clear definition
of the issue , and, with the parties frozen in their positions,
bargaining was suspended. On May 22, the Union filed an
unfair labor practice charge, alleging that, since May 20,
the Employer, was engaging in an unlawful refusal to bar-
gain.
In June , as expiration of the existing agreement ap-
proached, unrest developed among Glen Rock employees.
This apparently prompted the union meeting of June 9, at
which employees were again afforded the opportunity to
vote on continued participation in the IUD-AMF pro-
gram. Prior to that meeting Gerry McClain, who was presi-
dent of Local 1738 and chairman of the Shop Committee,
and William McCullough, another member of the Shop
Committee, reported to Plant Manager Rohrbaugh that the
people were disturbed and queried him as to whether the
Company would resume negotiations if the people voted
the IUD out. As a result of this inquiry, Erdman sent a
telegram to McClain in which Erdman expressed an under-
standing on his part that the Shop Committee wished to
continue negotiations without IUD participation. Based on
this understanding, Erdman suggested a meeting date of
June 10.4 At the union meeting of June 9, the membership
overwhelmingly reaffirmed their wish to continue to partic-
ipate in the IUD-AMF program. Apparently, in conse-
quence of this vote, no meeting was held on June 10.
On June 19, 1974, the Company invoked the contractual
grievance machinery, seeking resolution of its claim that
Local 1738 violated the contract by insisting upon negoti-
ating through the expanded committee. By letter of that
date from Erdman to Gerry McClain, the grievance was
defined as follows:
In accordance with the Article XIV of the current col-
lective bargaining agreement, we are hereby grieving
the Union's failure and refusal to comply to Article
XV of the current collective bargaining agreement re-
garding the negotiations for a new agreement.
In accordance with step 3 of the grievance procedure
as outlined on page 22, this grievance is being initiated
at step 3 and I hereby suggest Friday, June 21, at 10
a.m. in this regard in the Glen Rock plant.
On June 21, a third-step grievance meeting was held. At
that time, the Union took the position that the issue was
not arbitrable because the subject of a charge pending be-
fore the National Labor Relations Board. The Respondent
disagreed, reasserting its view that article XV precluded
Local 1738 from seeking assistance from the IUD-AMF
Committee during negotiations. The parties' inability to re-
solve amicably the grievance led the Company on June 28
to submit the matter to arbitration. Thereafter, an arbitra-
tor was designated, but no hearing conducted, since it was
postponed on each occasion at the Union's request.
In the interim , and following the union meeting of June
9, unrest among employees intensified. In mid-June a peti-
tion was circulated within the unit urging that Local 1738
agree to continue negotiations without assistance from the
IUD-AMF Committee. As a result, a further vote on con-
tinued participation in the IUD program was placed on the
agenda for the union meeting scheduled for June 23, the
day before expiration of the contract. At that meeting, the
employees again elected to continue their participation in
the IUD program. However, that vote reflected a shift of
some 30 votes away from support of the IUD program.
Local 1738's membership also voted against striking, and
to "walk the contract" until its expiration. It was the mutu-
al understanding of Local 1738 and Respondent's officials
that this meant that the contract would be extended on a
McClain credibly denied telling Rohrbaugh that the Shop Committee
sought to continue negotiations without IUD -AMF participation. Rohr-
baugh did not testify. The alleged understanding which is the premise of the
above telegram sent by Erdman is therefore not accepted as true.
906 DECISIONS OF NATIONAL LABOR RELATIONS.BOARD
day-by-day basis following its expiration. The Respondent
was informed as to the results of the various resolutions
passed at the June 23 union meeting.
As indicated, the contract expired on June 24. That
morning, McClain, McCullough, and Mervin Bailey, a
third member of the Shop Committee, were summoned by
Rohrbaugh to the front office. At that time, Erdman pre-
sented the three members of the Shop Committee with
what he described as the Company's proposal for a new
contract. Erdman asked the employees if they had any
questions regarding the proposals. There was some discus-
sion concerning the major medical and vacation provisions
thereof.5 Erdman informed the committeemen that the
Company's proposals would be distributed to employees
that afternoon. The distribution to employees was made
about 12:30 p.m. that same day. Each copy included a
cover letter signed by Richard C. Bryan, vice president and
general manager of the Union Machinery Division, which
recited as follows:
Dear Employee:
Since early May, we have met with your Union Repre-
sentatives on various occasions in an effort to arrive at
a new labor agreement. Several proposals were ex-
changed and many economic and noneconomic mat-
ters were resolved.
However, the agreement expires tonight and no final
complete contract has been reached. Therefore, in a
last-ditch effort to resolve a contract, we asked your
local union committee to meet with representatives of
the employer.
We are happy to say that a meeting was held this
morning at which the company offered the greatest
wage and benefit package ever presented to our Glen
Rock employees.
We feel sure that when all of you have reviewed this
offer, you will approve final acceptance of a new
agreement.
To assist you in this review, we are attaching a de-
tailed outline of the offer made to the local committee
today.
Sincerely,
/s/ Richard C. Bryan
Vice President and General Manager
Prior to meeting with the three committemen, Erdman,
on the morning of June 24, telephoned Spangler, informing
him of his intention to present the Company's proposal to
the members of the Shop Committee and thereafter imme-
diately to distribute it to employees generally .7 Spangler
S A conflict exists between Erdman and McClain as to whether the dis-
cussion on these two matters was limited to the committeemen themselves
or whether Erdman was questioned by the employees as to certain aspects
of those proposals . This conflict is viewed as immaterial and need not be
resolved.
6 It is undisputed that this proposal was in excess of any offer previously
made to the Union. Indeed, the wage package involved an offer of 10-
percent increase effective June 6, 1974, and a 8-percent increase effective
June 26, 1975. This represented a substantial increase over the prior compa-
ny offer of 18-cent annual increases over a 3-year period.
Based upon the credited testimony of Erdman . I discredit Spangler's
indicated his displeasure with this turn of events and,
among other things, he accused Erdman of bypassing the
Union. In what appears to be a formal response to the
Company's action of that day, Spangler, by letter dated
June 28, wrote Erdman, indicating that "The new acting
committee Local Lodge number 1738 . . . is prepared to
discuss and negotiate on your proposal." The letter went
on to request a meeting date. The original of the letter
received by the Company indicated that copies were for-
warded to certain individuals known to be connected with
the IUD.
Meanwhile, on June 26, the Company had posted no-
tices throughout the plant, as follows:
NOTICE
Because of the uncertainty of the situation as it cur-
rently exists and because of high inventories in Union
Machinery Division, it is going to be necessary to re-
duce the working hours.
Effective Monday, July 1st, until further notice, the
work schedule will be reduced as follows:
Monday through Friday:
1st Shift-7 a.m. to 11 a.m.-4 hours
2nd Shift-3:30 p.m. to 7:30 p.m.-4 hours
/s/ C. D. Rohrbaugh, Plant Manager
This reduction in daily work hours took effect on July 1.
It was followed on July 3 by a further notice, stating as
follows:
As you know, it was necessary to reduce working
hours this week because of the high inventory in the
Union Machinery Division and because of the uncer-
tainty of the situation as it currently exists.
I have been advised that our inventory position indi-
cates that additional action is necessary in order to
attain an even greater inventory reduction. Conse-
quently, it has been decided to close down plant oper-
ations the weeks of July 8th and July-15th which are
immediately prior to the week of July 22nd which is
already scheduled for vacation plant shutdown.
It is presently planned that normal working hours will
commence on July 29th. If there are any changes in
this plan, you will be notified by mail.
/s/ C. D. Rohrbaugh,
Plant Manager
McClain testified credibly that the July 3 notice had dis-
turbing effects within the unit, and that employees called
upon him to do something about it. McClain contacted
Spangler, who in turn reported the matter to George Al-
meida, a grand lodge representative of the International
Association of Machinists. On either July 4 or 5, Almeida
called Erdman, describing the closedown as very unfair
and accusing the Company of applying undue pressure in
the course of bargaining. In a subsequent phone conversa-
testimony that he was first informed of the Company's action that day by
McClain well after the meeting with the committeemen and that he did not
speak with Erdman until sometime thereafter . I regard Erdman 's, testimony
as more reliable , for I was not impressed with Spangler's capacity for recol-
lection of the precise timing of events.
AMF INCORPORATED-UNION MACHINERY DIVISION
tion between Erdman and Almeida, the latter proposed
that it would resume negotiations without participation of
the IUD-AMF representatives if the Company would can-
cel the closedown and get the people back to work as soon
as possible.
On July 6, Erdman notified Almeida that the Company
had agreed to resume negotiations on the basis of the
Union's proposal . In consequence , a negotiating session
was set for July 8 and the closedown was cancelled. Erd-
man took immediate steps to recall as many employees as
possible for a resumption of work as of Monday, July 8.
However , there was insufficient time to assure their return
to work on that date. In fact, a majority of the employees
did not return to work until July 10.
Negotiations were resumed, without participation of the
IUD-AMF Committee on July 8. Thereafter, on that basis,
the parties continued to meet almost daily until July 12,
when a tentative agreement was reached . Over that week-
end the employees ratified the agreement, and the new 2-
year contract was executed on July 18.
C. Concluding Findings
1. Prefatory statement
The complaint in this case places in issue three aspects of
Respondent's conduct during the period between the open-
ing of contract negotiations and the final execution of an
agreement by the parties on July 18, 1974. However, under
no view of the facts , could this case be regarded as raising
classical surface bargaining issues involving an employer's
resort to tactics either at or away from the bargaining table
in furtherance of an overall design to avoid reaching agree-
ment, or to induce employees to reject a collective-bargain-
ing representative.
These circumstances, together with the facts and the rel-
evant legal principles, lead to the view that any merit in the
complaint whatever depends vitally upon the factual and
legal sufficiency of the allegation that Respondent violated
Section 8(a)(5) by conditioning continued bargaining upon
its demand that Local 1738's negotiating team be confined
to representatives of the Shop Committee and one nonem-
ployee, designee of the IAM. Should that allegation fail,
the May 20 suspension of negotiations could in no sense be
attributed to any employer misconduct and, in that event,
the most that could be said concerning Respondent's al-
leged direct dealing with employees on June 24, the reduc-
tion of hours of July 1, and the July 8 shutdown, is that
these steps were taken to force Local 1738 to recede from
its obstruction of the ordinary process of good-faith collec-
tive bargaining. In short, the Act would not preclude Re-
spondent from utilizing such tactics in an effort to impel
the Union's return to the bargaining table and in quest of a
timely agreement on a new contract .8
On the other hand, should it be established that Respon-
dent violated Section 8(a)(5) by insisting that IUD-AMF
representatives be excluded from Local 1738's negotiating
team , the subsequent actions of Respondent would , neces-
8 See e .g., American Shipbuilding Company [Local 374, Boilermakers] v.
NL.R.B., 380 U.S. 300 ( 1965).
907
sarily, be viewed in an entirely different light. In that event,
the June 24 offer made to employees outside the scope of
formal negotiations as well as the subsequent denials of
employment to those in the bargaining unit could be
viewed prima facie as invoked to force the employees to
yield on their lawfully asserted statutory right to bargain
through representatives of their choosing.
2. Composition of Local 1738's negotiating team
As indicated, Respondent's conduct, in this respect,
gives rise to the key issue in this case . On the undisputed
facts, Respondent, on May 20, plainly indicated that it
would not participate in formal negotiations with Local
1738, unless representatives of the IAM-AMF Committee
were excluded. Because Local 1738 insisted upon contin-
ued participation of this latter group, Respondent's de-
mand for their exclusion resulted in an indefinite suspen-
sion of negotiations as of that date.
Respondent does not seriously dispute that under estab-
lished law, as a general proposition, ". . . each party of the
collective bargaining process has the right to choose whom-
ever it wants to represent it in formal labor negotiations,
and the other party has a correlative duty to negotiate with
the appointed agents ." See Harley Davidson Motor Co.,
Inc., AMFsupra. In addition there is no evidence that pres-
ence of the IUD-AMF representatives at formal negotiat-
ing sessions would make good-faith bargaining impractical
or present a clear and present danger to the collective-bar-
gaining process, nor does it appear that these individuals
sought, or would seek, to negotiate on behalf of employees
other than those within the appropriate bargaining unit at
the Glen Rock plant. Accordingly, on the above facts, it is
clear that the General Counsel has established a prima facie
violation of Section 8(a)(5) in this respect.
Nonetheless, the Respondent contends that article XV of
the applicable collective-bargaining agreement precluded
expansion of the Union's negotiating team, and that Local
1738's insistence upon participation of these individuals
violated the contract. Accordingly, it is argued that Re-
spondent was contractually privileged to suspend negotia-
tions in self-help to redress the failure of Local 1738 to
adhere to its duly negotiated contractual obligations.
Two separate defenses are urged by Respondent under
article XV. First it is argued that since an issue of contract
interpretation is involved , the dispute concerning
Respondent's alleged May 20 refusal to bargain should be
deferred to arbitration pursuant to the Board's Collyer doc-
trine. Secondly, Respondent claims, that should deferral to
arbitration be considered inappropriate in this case, then,
on the merits, it should be concluded that Local 1738 had
contractually waived any lawful objection it might other-
wise have had to Respondent 's refusal to meet with persons
other than those set forth in article XV, and that Respon-
dent at all times simply was attempting to compel Local
1738 to adhere to the contract and past practice.
It is therefore clear that Respondent, apart from its con-
tractual defenses , presents no justification for its refusal to
meet with Local 1738's expanded bargaining committee.
Article XV, which is central to Respondent's position pro-
vides as follows:
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Article XV
Union Representation
(a) The Union shall have the right to select a Shop
Committee of not more than five (5) employees (ex-
cept as provided for in Article XIV, Section (b), step
3) who will serve as Committeemen to handle griev-
ances and other Union business.
(b) Shop Committeemen shall be paid by the Employ-
er for time they spend on the Employer's premises in
the performance of their functions as Committeemen
during the regular working hours of the individual
Committeemen. A Committeeman shall not ring in
prior to regular starting time and must ring out at his
regular quitting time when engaged in the perfor-
mance of his functions as a Committeeman outside of
his normal working hours.
(c) Committee members, as outlined above, shall re-
port to their foremen when it becomes necessary for
them to leave their jobs for the purpose of handling
grievances , make known their destination and report
again to their foremen at the time of their return.
Prior to leaving work, the Committeeman and/or the
aggrieved employee shall ring "stop" on timecard for
the job they are then engaged on and ring "start" on
an idle timecard to be supplied by the timekeeper.
When each resumes work, they shall ring "stop" on
the idle timecard and "start" on the card for the job
they are resuming work on.
(d) A representative of the International Union shall
have access to the plant and office during working
hours for the purpose of handling Union business pro-
vided he first applies to the plant office of the Employ-
er. The Union representative will conduct such busi-
ness in a prompt and orderly manner.
(e) The Union agrees not to conduct Union Business
or solicitation on company property except as provid-
ed in this contract.
The Respondent argues that article XV and the historic
practice thereunder imposed a binding limitation upon the
size of Local 1738's negotiating committee . I see no merit
in this contention. Under established Board policy, the
claim that a right has been waived through collective bar-
gaining will be sustained only where it appears that the
subject matter has been fully discussed, and that a party
has consciously yielded, or clearly and unmistakably
waived, its interest in the subject matter? Article XV ap-
parently has been included in the agreements covering the
Glen Rock plant over a period of many years and there is
no evidence whatever as to the bargaining history that led
to its initial adoption by the parties. In any event, it cannot
be concluded, from the terms of article XV, that the provi-
sions thereof were contemplated or intended to restrict Lo-
cal 1738's right to seek assistance from outsiders during
contract negotiations or to participate in coordinated bar-
9 See, e .g., Untied-Carr Tennessee a Division of TRW, Inc., 202 NLRB
729, 730, fn. 13 (1973).
gaining programs such as that made available through the
IUD-AMF Committee. Indeed, reasonable construction of
article XV reveals that said provision embodies a different
intent. Thus, article XV, section (a), when considered with
the privileges allowed through section (b) thereof, appears
aimed at something quite different than imposing numeri-
cal limits upon those who may sit on Local 1738's side of
the table during contract negotiations. Contrary to Re-
spondent, the obvious and logical interpretation is that ar-
ticle XV(a) was designed to limit the number of employees
who would be paid for worktime participation in union
business, and who would be called from their work stations
to participate in the handling of grievances.10 It also does
not appear that, as Respondent contends, article XV limits
the Shop Committee's use of outside assistance during con-
tract negotiations to a single representative of the Interna=
tional Union. In this regard, Respondent relies upon article
XV, section (d). However, that paragraph embodies a typi-
cal nonemployee access provision, plainly designed to li-
cense a nonemployee, union representative to service the
unit in a manner which the law does not otherwise require,
by permitting a union representative to have access to
plant property during working hours to conduct union
business. Furthermore, nothing in that clause or article XV
specifically prescribes that the International representative
shall assist the Shop Committee during contract negotia-
tions. In sum, as should be obvious, article XV, section (d)
is merely designed to accommodate a relinquishment by
the Respondent of rights conferred by the principle ex-
pressed in Babcock & Wilcox Co. v. N. L. R. B., 351 U.S. 105
(1965), and no more.
I also cannot agree that past practice supports the
Respondent's interpretation of the contract. It is true that
during prior negotiations, Local 1738 did not seek to bar-
gain through representatives other than the Shop Commit-
tee, and a single nonemployee designated by the IAM.
However, while Respondent claims that article XV "de-
fines" and imposes a numerical limit upon the union nego-
tiating committee, Respondent does not deny that during
past negotiations, a sixth employee was present, despite
article XV's reference to "five." In addition, while article
XV is silent as to the role of an International's representa-
tive in contract negotiations, the Shop Committee has al-
ways negotiated with assistance of such an individual. Ac-
cordingly, I am persuaded that the composition of Local
10 Respondent claims that the testimony of Grand Lodge Representative
Spangler supports its interpretation of the contract Thus, in its own exami-
nation of Spangler, it developed that under article XIV, the grievance-arbi-
tration provision of the contract , a three-man committee is designated as a
"Grievance Committee" to meet with employer representatives at "Step 3"
of the dispute settlement procedures . These three men were to be selected
from the Shop Committee referred to in article XV. When questioned by
counsel for the Respondent as to what the five-man committee did, if not
involved in grievances , Spangler responded, "Negotiate a contract ... as-
sist in negotiating a contract ." Contrary to Respondent , this aspect of
Spangler 's testimony does not establish assent to Respondent 's claim that
article XV imposes a limit on the number of individuals who may sit on
Local 1738's side of the bargaining table . No one denies that it is the func-
tion of the five-man Shop Committee , among other things , to assist in the
negotiation of new contracts. This is all that Spangler's testimony estab-
lishes. It in no sense is inconsistent with the obvious conclusion that article
XV, section (a) was merely designed to impose a limit on the number of
employees , who would be privileged to conduct union business, on compa-
ny time , without loss of pay.
AMF INCORPORATED-UNION MACHINERY DIVISION 909
1738's negotiating team in past negotiations was not ar-
rived at through compulsion of contract. The most that
could be said on this record is that Local 1738 adopted a
mode of negotiating in the past which was more limited
than that sought in 1974 by reason of its own convenience,
and because it saw no need for outside assistance in the
course of these negotiations. As pointed out in Harley Da-
vidson Motor Co., Inc., AMF supra, the fact that a labor
organization limited its bargaining committee in the past
"did not confer on Respondent a prescriptive right, equal
in status to a contractual right, to have that practice con-
tinue."
Accordingly, I reject Respondent's contention that it
was legitimately privileged to refuse to bargain with the
expanded union negotiating team either because of article
XV of the collective bargaining agreement or the practice
by which Local 1738 negotiated past agreements.
Remaining for consideration is Respondent's contention
that its contractual defense raises a question of contract
interpretation calling for deferral to arbitration, pursuant
to Collyer Insulated Wire, 192 NLRB 837 (1971). Other
than to state that I do not regard Collyer applicable to the
issue presented here, and as Respondent interposes this
contention with respect to each of the unfair labor practice
allegations involved, and since I view this complaint as
presenting issues arising from an integrated overall pattern
of conduct, I shall defer full discussion of the Collyer de-
fense until disposition of the entire case on the merits.
Accordingly, based upon the merits, I find that Respon-
dent violated Section 8(a)(5) and (1) of the Act by refusing
to meet with Local 1738, in the presence of representatives
of the IUD-AMF Committee, and by thereby, in effect,
conditioning a resumption of negotiations upon the unit
employees yielding their statutory right to bargain through
representatives of their own choosing.
3. Direct dealing; the June 24 contract offer
The General Counsel and Charging Party contend that
Respondent violated Section 8(a)(5) and (1) by the circum-
stances under which it communicated its June 24 contract
settlement offer.
In this regard, I agree fully with Respondent that the
duty to bargain in good faith does not impose an absolute
prohibition upon an employer's ability to communicate
with employees in the course of contract negotiations. Con-
sistent with this view, the Board in Proctor & Gamble Man-
ufacturing Company, 160 NLRB 334, 340 (1966), held that
Section 8(a)(5) of the Act does not, per se, preclude an
employer from informing its employees in "noncoercive
terms . . . of the status of negotiations, or of proposals
made to the Union." See also Stanley Oil Company, Inc.,
213 NLRB No. 39 (1974).
This does not mean, however, that direct communication
with employees is beyond the proscriptive ambit of the Act
where utilized in furtherance of objectives inimical to the
principles of good-faith collective bargaining . Thus, the
Board has held that direct employee communication which
is conducted in such volume and under such conditions as
to suggest to employees that "the Employer rather than the
Union is the true protector of the employees' interest," vio-
lates the duty to bargain in good faith and constitutes un-
lawful "direct dealing" with employees." Of more direct
relevance to the instant case, however, is Board authority
to the effect that employee communication is unlawful
where a step in an overall pattern of conduct is to under-
mine the exclusive bargaining representative,12 or to inter-
fere with the function and exclusivity of a labor
organization's representative status."
For in this case, the offer of June 24, and Respondent's
conduct in connection therewith, cannot be disassociated
from the suspended state of negotiations, resulting from
Respondent's unlawful refusal to meet with the expanded
Committee. There can be no question, but that
Respondent's June 24 bypass of duly designated union
negotiators had the effect and was calculated to pressure
Local 1738 into a contract settlement outside the formal
negotiation framework which Local 1738 had lawfully se-
lected. Thus, the offer of that date was greater in economic
value than any previously made during formal negotiating
sessions . It came as unrest among employees, based upon
the uncertain state of negotiations, was growing. Thus, a
few weeks before June 24, a petition had been circulated
among employees to withdraw from the IUD coordinated
bargaining program. On the day before, the employees had
conducted a third vote on the IUD issue. While IUD-
AMF representation was at that time reaffirmed, the vote
reflected that some 30 employees had shifted away from
support of that proposition. Against this background the
proposed contract settlement was distributed to employees,
after touching base with the Union, in token fashion, and
with a cover letter, advising that:
We feel sure that when all of you have reviewed this
offer, you will approve final acceptance of a new
agreement.
In the total circumstances, it is my opinion that the offer
was made by Respondent to exploit the increasing concern
of unit employees as to the hiatus in negotiations and to
pressure Local 1738 into a resumption of negotiations
within the representational framework demanded by the
Respondent. Accordingly, in the total circumstances, I find
that by communicating the new, higher contract offer of
June 24 to employees, outside the framework of formal
negotiations with the duly designated representatives of
Local 1738, Respondent sought to perpetuate its earlier re-
fusal to bargain, and thereby violated Section 8(a)(5) and
(1) of the Act.14
4. The reduction of daily work hours and the 2-week
shutdown
Shortly after distribution of the June 24 contract settle-
ment offer , and during the continuing hiatus in formal ne-
'i See General Electric Company, 150 NLRB 192, 194 (1964), enfd. 418
F.2d 736 (C.A. 2, 1969).
i2 See , e.g., Texas Electric Coop., Inc., 197 NLRB 10, 14 (1972).
3 Obie Pacific, Incorporated, 196 NLRB 458, 459 (1972).
14 Respondent asserts that the "direct dealing" allegation, like that predi-
cated upon its refusal to meet with the expanded committee , should be
deferred to arbitration under Collyer Insulated Wire, supra This issue will be
disposed of infra.
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gotiations, the Respondent posted the notices , advising
unit employees of impending cutbacks in the work that
would be available at the Glen Rock plant.
The General Counsel and Charging Party contend that
this impairment of employment opportunities violated Sec-
tion 8(a)(3) and (1) of the Act.
Respondent defends on grounds that the cutbacks were
based upon legitimate economic considerations unrelated
to the pending negotiations . In doing so, Respondent relies
on the testimony of Richard Bryan , the general manager of
the Union Machinery Division , and certain documentary
evidence which Respondent claims to substantiate Bryan's
testimony . In considering the defense , it is necessary to
note that the Union Machinery Division consist of two
plants in the United States located in Richmond , Virginia,
and Glen Rock , Pennsylvania . In addition , the Division
operates two plants in the United Kingdom.
Bryan testified that cost input figures , 'S including labor
and materials, within the domestic plants had increased in
May 1974 over prebudgeted levels by about $1 million.
Bryan's superior , Crane , an AMF corporate vice president,
on or about June 4 , allegedly contacted Bryan , expressing
dissatisfaction with the Division's cost position , and urging
that Bryan take corrective action. According to Bryan, he,
in early June, devised a procedure whereby 3 weeks of la-
bor cost input at Glen Rock would be eliminated.16 In
doing so, Bryan claims to have spurned an immediate lay-
off at Glen Rock, because of the long history of layoff-free
operation at that location , because of the negotiations, and
because of the quality of the Glen Rock work force and the
demand in that area for qualified machinists . Instead, since
the plant was to close on July 22 for the Company's annual
1-week vacation period, and as half of the Glen Rock work
force was eligible for a 3-week vacation , Bryan avers that
he decided to shut the plant down 2 weeks earlier in order
that the adverse impact on employees , who could take their
vacation during the period of the shutdown, would be min-
imum . At the same time, Bryan allegedly contemplated
that if the Union elected to strike in the interim, the shut-
down could be avoided because the reduced labor cost in-
put would be achieved in that event , as a result of the
strike.17
Bryan further testified that on June 24, when the Com-
pany felt assured that there would be no strike at Glen
Rock , he informed Erdman and Rohrbaugh that since the
inventory (or the cost input deficit) was peaking out, they
should go ahead with the shutdown as previously planned.
In response , Erdman and Rohrbaugh informed Bryan that
the contract required a reduction in hours before resorting
to layoff, and, accordingly, Bryan advised them to first
announce a reduction in hours, followed up with notifica-
tion of the 2 -week shutdown, to commence on July 8.
Bryan relates that he advised Erdman and Rohrbaugh to
15 Respondent refers to these cost input figures , less sold deliveries, as
"Inventory."
16 At the Richmond plant , cost reduction had been effected through lay-
offs, which reduced the employment level at that location by about 75 work-
ers as of June 1974.
17 Bryan testified that he was aware that labor organizations other than
the lAM in 1974 had struck at AMF plants situated in Milwaukee , Wiscon-
sin, and Vandalia , Illinois . These negotiations also involved the IUD issue.
encourage employees to take their vacation during the peri-
od of the shutdown.
Although the reduction in hours was implemented as
scheduled , steps were taken to cancel the 2-week shutdown
as part of an agreement with George Almeida, IAM Grand
Lodge representative, on a proposal made by the latter, to
resume negotiations , without participation of IUD repre-
sentatives . Bryan states that , in scrapping the shutdown,
he relied on Erdman's advice that, with acceptance of
Almeida 's proposal , chances for reaching agreement on a
new contract were excellent.
I was not persuaded by Bryan's account. The economic
figures on which he allegedly relied were based on data
covering both the Richmond and Glen Rock plants. The
documentary evidence showing the monthly cost input re-
lationship to prebudgeted figures is in consolidated form.19
No attempt was made by Bryan or by other evidence in
support of the defense to isolate the separate cost experi-
ences at each of the two plants 20 This failure to provide
more definitive data with respect to an economic defense,
which was never, in any understandable fashion , commu-
nicated to Glen Rock employees or to their bargaining rep-
resentative , is highly suspicious in the circumstances. For,
it seems only logical , according to my understanding of
Bryan's testimony, that the cost-input problem would be
intensified by continued operation of an inefficient plant
with a history of low production. On the other hand, the
problem described by Bryan would be alleviated by contin-
ued production at an efficient plant with a high level of
productivity and a good sales experience.
Respondent's failure to provide separate cost-sales-bud-
get figures limited to Glen Rock not only precludes effec-
tive scrutiny of the defense , but raises grave questions
when considered against evidence that the Glen Rock op-
eration was more efficient than that at Richmond. Thus,
on May 6, 1974, in an announcement to Glen Rock em-
ployees, Respondent advised that it had informed the
Union at a negotiating session , that the Division was "off
budget" because of conditions in the bakery industry, but
that while it was necessary to reduce personnel at the Rich-
mond plant, " . . . Glen Rock was fortunate in that the
work load was still up because of the effort expended in
engineering investments in tooling and equipment neces-
sary to maintain the demand for Glen Rock machines such
as the V-Slicer, Glen Mixers, K-Roll Heads, and bulk
packers." No evidence is offered by Respondent to explain
what, if anything, occurred between May 6 and July 1, to
alter this favorable overview of the economic conditions
affecting Glen Rock . Yet, it is difficult to imagine that this
would be beyond Respondent's proof capabilities. Consid-
ering the nature and magnitude of AMF operations, I do
not believe that the Division did not maintain separate cost
accounts on these two plants . Both manufacture different
products, and it is entirely improbable that business re-
1a At the time of the decision to cancel the shutdown , the cost figures for
June, which were published on June 28 , were available to Bryan. They
showed that the cost-input relationship to budgeted costs had become even
more aggravated in that month.
19 Resp . Exh. 3,
20 Compare Resp . Exh. 4, where personnel count figures are broken down
on a separate plant basis.
AMF INCORPORATED-UNION MACHINERY DIVISION 911
cords are not available which would facilitate the separate
tracking of the cost experience at each plant by higher
management . At the same time , however, obviously, if
Glen Rock had contributed only slightly to the division's
cost-input problem , and if the sale of its products had actu-
ally approximated expectancies , during the first half of
1974, economic data reflecting such a favorable experience
at that plant would undercut Respondent's defense. In
these circumstances , including the May 6 description of
Glen Rock's economic position , Respondent's reliance
upon consolidated figures, which obscure the Glen Rock
contribution to the Division 's cost problem , warrant an in-
ference that cost-sales-budget data limited to the Glen
Rock facility would refute , rather than support , Bryan's
explanation for the reduction in work at that plant.
Also arousing curiosity is the question as to why, if the
instant cutbacks were so innocently based , Respondent in
announcing them to employees referred to the "uncertainty
of the situation as it correctly exists" in partial explanation
for its action . This language , in the circumstances, would
be understood as a reference to the breakdown in negotia-
tions resulting from Local 1738 's insistence upon IUD as-
sistance during the negotiations . Nonetheless , Bryan at-
tempted to explain away this language as having no
intented reference to the IUD issue , but as being based
upon the removal of certain equipment and materials to
the Richmond plant . 21 His testimony in this respect im-
pressed me as evasive , contrived , and an attempt to alter
the plain import of published language which was inconsis-
tent with the thrust of his testimony and unfavorable to
Respondent's cause . Furthermore , while the removal of
materials to the Richmond plant may have resulted in a
reduction of work at the Glen Rock facility, this had oc-
curred well prior to the decision to effect the reductions at
Glen Rock , and I fail to perceive as to how this transaction
could be described in terms of uncertainty when the cut-
backs were announced . Finally, I note that Bryan , in this
regard , was not firmly corroborated by Erdman . Erdman,
like Bryan , denied that the reference to "uncertainties" in
the notices related to the IUD's participation in the negoti-
ations . Yet, Erdman initially testified that such terminolo-
gy was used because " . . . we were subject to a strike." 22
In this respect, the evidence bearing on Respondent's de-
fense fails to reflect the unity normally associated with
truth . For, unlike Erdman , throughout Bryan's testimony,
he professed the view that as of June 24 and before the
shutdowns were announced , the strike threat at Glen Rock
had terminated .23 In the circumstances , and contrary to the
21 As a hedge against the strike , certain materials and equipment were
removed from the Glen Rock to the Richmond plant to assure that custom-
ers could be supplied for a 30-day period in the event of a strike at Glen
Rock . There is no evidence that the specifics of this phase of Respondent's
strike preparation strategy were ever called to the attention of Glen Rock
em2ployees or their bargaining agent.
Later, upon examination by Respondent 's counsel , Erdman did tend to
support Bryan , by relating that the removal of equipment and materials to
Richmond was part of the reason for this reference . Rohrbaugh, whose
name was affixed to the notices , did not testify . However , Erdman claims
that, from a labor relations standpoint , he assisted Rohrbaugh in the draft-
ing of the notices.
The following is an excerpt from Bryan 's testimony , in which , he sought
to explain why he decided on the reduction at Glen Rock on June 24:
testimony of Bryan and Erdman, I find that the reference
to the "uncertainty of the situation," was intended to con-
vey the message which the ordinary meaning of that lan-
guage, in the context, clearly projected; i.e., that the cut-
backs were related to the uncertain state of negotiations at
Glen Rock.
Adding further to the unreliability of Bryan's testimony
is the difficulty in reconciling the alleged economic defense
with Respondent's overt actions. For, Respondent's entire
course of conduct with respect to the Glen Rock employees
hardly suggests that the shutdown was prompted by the
business considerations described by Bryan. Thus Respon-
dent, having informed Glen Rock employees on May 6 of
the comparatively healthy outlook at that plant, thereafter
kept them in the dark as to any change in this condition,
and never informed them or their bargaining representa-
tive, in understandable terms, that the cutbacks were re-
quired by the relatively simple economic explanation relat-
ed by Bryan at the hearing. In contrast, Respondent's
communications with employees did reflect a disposition to
impress employees with the advantages to be realized by
rejection of the IUD and the adversities they would face in
consequence of continued participation in that program.
Thus, it was a commonly held fact that, as of May 20,
Respondent had indicated a refusal to participate in fur-
ther formal negotiating sessions, unless IUD representa-
tives were excluded therefrom. Later in June, the deadlock
over the IUD issue continued and employee support of the
IUD program began to weaken. Against this background,
on June 24, unit employees were presented a contract set-
tlement offer which was proposed by Respondent outside
the framework of formal negotiations and which included
terms having greater value than any previously offered.
Two days later, and while employees remained committed
to the IUD program, the notice was posted advising of the
reduction in daily hours, partially explained as having been
imposed because of the "uncertainty of the situation." In
the week to follow, unit employees were confronted with
the notice as to the imminent 2-week shutdown. Thereaf-
ter, on July 8, the shutdown was cancelled, but only after
the Union agreed to resume negotiations without participa-
tion of IUD representatives. During this entire period, the
information made available to employees would lead them
to conclude that the cutbacks were invoked by Respondent
as a form of pressure to influence a rejection of IUD repre-
sentation . Respondent 's officials were certainly aware of
the effects of their actions, and although it is possible that
Respondent may have withheld the information it now
urges in defense , so as to deliberately mislead employees as
to the reasons for the cutbacks, it is also possible that the
defense was not explained because it did not then exist.
Considered with my heretofore expressed reservations as to
the reliability of Bryan's account, I believe the latter to
have been the case.
Having discredited Respondent's economic defense, I
find that the cutbacks were announced and implemented
After we had made our offer and the contract expired, we decided that
there was, you know , at that point , not going to be a strike or , in other
words, a shutdown.
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by reason of the same considerations which admittedly led
to ultimate cancellation of the 2-week shutdown . Thus, I
find that both measures were instituted by Respondent in
further quest of a contract through negotiations in which
IUD-AMF Committee representatives woud be excluded.
In other words , Respondent 's conduct in this regard is
found to be a byproduct of, and a step in continuing sup-
port of, its unlawful refusal on May 20, and at all times
thereafter, to meet at formal negotiating sessions in the
presence of the duly designated bargaining representatives
of unit employees. Therefore, I find that Respondent by
reducing the work of unit employees 24 in furtherance of
such objectives violated Section 8(a)(3) and (1) of the Act 25
D. The Collyer Defense
As heretofore indicated , the issues raised by the instant
complaint are regarded as inappropriate for deferral to ar-
bitration . I so conclude , conceding that Respondent's de-
fense to the refusal-to-bargain allegations under article XV
raises material (if insubstantial) issues of contract interpre-
tation with respect to both its termination of bargaining on
May 20 and the bypass of the Union on June 24. In this
respect, the questions presented by the complaint relate to
a complete breakdown in contract renewal negotiations,
rather than a routine contract violation arising in the
course of a bargaining relationship stabilized by an existing
collective-bargaining agreement of fixed duration.26 The
Board , addressing itself to somewhat different factual con-
texts, has declined to defer to arbitration where the con-
duct under scrutiny was considered "to be a complete re-
jection of the principles of collective bargaining.... " 27
And, in Harley Davidson Motor Co., Inc., AMF, supra, a
Collyer defense was rejected where contract negotiations
were terminated because of the very issue involved here.
One of the considerations leading to the Board 's result in
that case was expressed as follows:
24 Upon cancellation of the shutdown , Respondent did not have sufficient
time to notify all employees to return to work by July 8. While the record
does not identify the employees who lost work on and after July 8, as a
result, this is a proper matter for resolution during the compliance stages of
this proceeding, and has no material bearing upon the unlawful discrimina-
tion found above . I further find that, even assuming that article X and X11
of the agreement licensed Respondent to take unilateral action , this privi-
legte did not extend to management decisions , violative of Section 8(a)(3).
5 American Ship Building Co. [Local 374, Boilermakers] v. N L. R. B., 380,
U.S. 300 (1965) is plainly distinguishable, for, the temporary partial lockouts
involved here were not invoked to further legitimately maintained bargain-
ing positions , but, instead , were utilized as a coercive step in an overall
effort to frustrate employee designation of their collective -bargaining repre-
sentatives.
The complaint also alleges that Respondent also violated Section 8(a)(5)
by virtue of this same conduct . Neither the General Counsel nor the Charg-
ing Party advances any theory or contention in support of such allegation.
See e .g., N.L.R. B. v. Insurance Agents International Union , AFL-CIO, 361
U.S. 477 ( 1960). Accordingly, as McClain , by virtue of the applicable collec-
tive-bargaining account, was not obligated to consult the Union before tak-
ing any such unilateral action , and as the additional 8(a)(5) finding would
not affect the remedy , I shall dismiss this allegation.
26 The fact that Local 1738 agreed to "walk " the contract, after its dura-
tion, on a day-to-day basis does not alter the fact that the core of the instant
complaint relates to an alleged obstruction of the negotiating process by the
Respondent.
2 Mountain States Construction Co., 203 NLRB 1085 (1973 ); Chase Manu-
facturing, Inc., 200 NLRB 886 (1972).
This case involves basically a statutory dispute-right
of a union to select its own bargaining agents-that
goes to the heart of the Act's and policies . It is one
therefore , that appropriately should be determined by
the Board.
Thus, the Board has recognized its own special compe-
tence in dealing with unfair labor practice issues emerging
from a serious disruption to the negotiating process. The
withholding of Collyer, in such circumstances , seems abso-
lutely sound . Aside from the Board 's substantive responsi-
bilities with respect to the mechanics of collective bargain-
ing, statutory remedies available to treat with such issues
are far more comprehensive than those available in arbitra-
tion. Through the 10(j) injunction, which often can be in-
voked quickly, the Act provides a remedy which may facili-
tate a resumption of negotiations and provide a means to
preclude a tense situation from being aggravated by further
unfair labor practices . The utility of the 10(j) injunction is
lost where Collyer applies . Furthermore , the need for
speedy solution to the type of deadlock in negotiations,
which is involved here, could not be assured by deferral to
arbitration. For an arbitrator would possess authority, in a
case such as this, only to provide a solution , if he agrees
with the Employer's interpretation of article XV. If not, it
would be beyond his competence to decide whether the
Employer violated the Act by its refusal to meet on and
after May 20, and through the direct dealing of June 24;
Local 1738, upon conclusion of the arbitral proceeding,
would be required in that event to perfect its statutory rem-
edies by invoking the processes of the Board 29
As for the 8(a)(3) issue , since I am satisfied that the re-
fusal-to-bargain allegations of the complaint are not appro-
priate for deferral to arbitration, it follows that jurisdiction
is properly asserted to determine the merits of the remain-
ing allegations of discrimination .29 The conduct giving rise
to the 8(a)(3) allegations of the complaint was integrated
with an inseparable step in Respondent 's overall effort to
avoid bargaining in the presence of the IUD-AMF Com-
mittee. For this reason, and because the Board, in imple-
menting the Collyer doctrine, has declined to parse out sep-
arate allegations of a complaint for deferral to arbitration,
where other allegations require Board determination on the
merits ,30 I also reject Respondent's Collyer defense as to
the 8(aX3) issues.
CONCLUSIONS OF LAW
1. The Employer is an employer engaged in commerce
within the meaning of Section 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. All hourly paid production, maintenance receiving
and shipping department employees, and inspectors em-
28 Harley Davidson Motor Co., Inc., A MF supra.
29 Respondent claims that the cutback in hours of July 1. and the shut-
down announced on July 3 also involve issues of contractual interpretation
under article X (seniority, layoffs, and rehiring), article X11 (management
rights). and article XIX (no strikes or lockout) of the collective-bargaining
agreement.
10 George Koch Sons, 199 NLRB 166 (1972); Diversified Industries, a Divi-
sion of Independent Stave Company, 208 NLRB 233 (1973), fn. 1.
AMF INCORPORATED-UNION MACHINERY DIVISION
ployed at Respondent 's Glen Rock, Pennsylvania , plant,
but excluding office and clerical employees, foremen and
supervisory employees with the authority to hire, dis-
charge , promote, discipline , or otherwise effect changes in
the status of employees , or effectively recommend such ac-
tion, timekeepers , engineering department employees (in-
cluding technicians , such as chief inspector , quality control
technicians , etc., engineers , and draftsmen), watchmen and
guards, salaried employees, and outside workmen , hired by
the Respondent to perform building repair or construction
work or equipment installation and repair work, constitute
a unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.
4. By conditioning continued contract negotiations
upon the Union 's relinquishment of its right to bargain
through representatives of its own choosing , Respondent
has violated Section 8(a)(5) and (1) of the Act.
5. By communicating its contract proposal of June 24 to
employees outside the framework of formal contract nego-
tiations, Respondent has engaged in "direct dealing" there-
by violating Section 8(a)(5) and (1) of the Act.
6. By reducing the daily work hours of unit employees
and by announcing a 2-week shutdown to discourage em-
ployees from engaging in union activity, Respondent has
violated Section 8(a)(3) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1), (3), and (5)
of the Act, it will be recommended that Respondent be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the
Act.
Respondent having discriminatorily denied employees
work by reducing their daily work hours and announcing a
2-week shutdown in violation of Section 8(a)(3) and (1) of
the Act , it shall be recommended that Respondent make
employees whole for any loss of pay resulting from the
discrimination against them by payment of a sum of mon-
ey equal to the amount they would have earned in the
absence of the discrimination against them , with interest as
provided in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act , I hereby issue the following recommend-
ed:
31 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings.
conclusions , recommendations, and order herein shall , as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and order, and all objectives thereto shall be
deemed waived for all purposes.
ORDER 3t
913
Respondent, AMF Incorporated-Union Machinery
Division , Glen Rock , Pennsylvania , its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain with Lodge No. 1738, Interna-
tional Association of Machinists and Aerospace Workers,
AFL-CIO, by declining to meet with the selected negotiat-
ing committee of that Union for the purpose of negotiating
a collective-bargaining agreement relating to the rates of
pay, hours, and other terms and conditions of employment
of the employees in the following appropriate collective-
bargaining unit:
All hourly paid production, maintenance, receiving
and shipping department employees , and inspectors
employed at Respondent's Glen Rock, Pennsylvania
plant, but excluding office and clerical employees,
foremen and supervisory employees with the authority
to hire, discharge, promote, discipline, or otherwise ef-
fect changes in the status of employees, or effectively
recommend such action , timekeepers , engineering de-
partment employees (including technicians, such as
Chief Inspector, Quality Control Technicians, etc., en-
gineers and draftsmen), watchmen and guards, sala-
ried employees and outside workmen, hired by the Re-
spondent to perform building repair or construction
work or equipment installation and repair work.
(b) Refusing to bargain in good faith with the above-
named Union , as exclusive representative of employees in
the above-defined unit by dealing directly with employees
concerning their terms and conditions of employment.
(c) Reducing work hours, shutting down the plant, or in
any other manner discriminating with - respect to the em-
ployment tenure of employees because they have engaged
in protected activity through Lodge No. 1738, Internation-
al Association of Machinists and Aerospace Workers,
AFL-CIO.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
right to engage in activity protected by Section 7 of the
Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Meet and bargain, upon request of the above Union,
with the selected bargaining committee of the Union, in-
cluding any members or officials of other labor organiza-
tions whom the Union has invited to attend the negotia-
tions for the purpose of participating in the discussions and
advising and consulting with the Union on matters related
to the negotiation of a collective-bargaining agreement for
the aforesaid unit.
(b) Make employees whole for any loss of earnings re-
sulting from the discrimination against them in the manner
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
set forth in the section of this Decision entitled "The Rem-
edy."
(c) Preserve and make available to the Board or any of
its agents , upon request , all records necessary to analyze
the amount of backpay due under the terms hereof.
(d) Post at its Glen Rock, Pennsylvania , plant copies of
the attached notice marked "Appendix." 32 Copies of said
notice , on forms provided by the Regional Director for
Region 4, after being duly signed by an authorized repre-
sentative of Respondent , shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 days thereafter, in conspicuous places , including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to assure
that said notices are not altered , defaced , or covered by
any other material.
(e) Notify the Regional Director for Region 4, in writ-
ing, within 20 days of this Order, what steps Respondent
has taken to comply herewith.
32 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain with Lodge No. 1738,
International Association of Machinists and Aero-
space Workers , AFL-CIO, by declining to meet with
the selected negotiating committee of that Union, by
insisting that representatives of the IUD-AMF Com-
mittee be excluded from negotiations , and bypassing
the above Union as exclusive representative of our
employees in the appropriate collective -bargaining
unit set forth below.
All hourly paid production , maintenance , receiving
and shipping department employees , and inspectors
employed at Respondent 's Glen Rock , Pennsylva-
nia plant , but excluding office and clerical employ-
ees, foremen and supervisory employees with the
authority to hire , discharge , promote, discipline, or
otherwise effect changes in the status of employees,
or effectively recommend such action , timekeepers,
engineering department employees (including tech-
nicians, such as Chief Inspector, Quality Control
Technicians , etc., engineers and draftsmen), watch-
men and guards , salaried employees and outside
workmen , hired by the Respondent to perform
building repair or construction work or equipment
installation and repair work.
WE WILL NOT reduce the daily work hours of our
employees or temporarily shut down the plant or
otherwise discriminate against them because they have
engaged in activity protected by the Act through the
above-named Union.
WE WILL NOT , in any like or related manner , interfere
with , restrain, or coerce employees in the exercise of
rights guaranteed in Section 7 of the Act.
WE WILL meet and bargain , upon request of the
Union , with the selected bargaining committee of the
Union , including any members or officials of other
labor organizations whom the Union has invited to
attend the negotiations for the purpose of participat-
ing in the discussions and advising and consulting
with it on matters related to the negotiation of a col-
lective-bargaining agreement for the aforesaid unit.
WE WILL make whole our employees for any losses
in earnings resulting from our discrimination against
them in the manner set forth in the Decision of the
Administrative Law Judge.
AMF INCORPORATED-UNION MACHINERY DIVISION