H. K. Porter Co., Inc.

National Labor Relations Board - Board Decisions

Jul 9, 1965

153 N.L.R.B. 1370 (N.L.R.B. 1965)

1 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
Employees may communicate directly with the Board's Regional
Office, 450 Golden Gate Avenue, Room 13050, San Francisco, Califor-
nia, Telephone No. 556-3197, if they have any questions concerning this
notice or compliance with its provisions.
H. K. Porter Company, Inc., Disston Division -Danville Works and
United Steelworkers of America, AFL-CIO. Case No. 5-CA-
£785. July 9, 1965
DECISION AND ORDER
On January 21, 1965, Trial Examiner Joseph I. Nachman issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it, cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the General Counsel and Respondent filed excep-
tions to the Trial Examiner's Decision and supporting briefs. The
Charging Party filed cross-exceptions and a brief in support thereof
and in opposition to the exceptions filed by the Respondent. There-
after, Respondent filed answering briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection- with- this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
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, cross-exceptions, all briefs, and
the entire record in this case; and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations.
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 H. K. Porter, Company, Inc., Disston Division-Danville
Works, Danville, Virginia, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order. -
153 NLRB No. 119.
H. K. PORTER COMPANY, INC., ETC. 1371
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This complaint,) under Section 10(b) of the National Labor Relations Act, as
amended, herein called the Act, charges that H. K. Porter Company, Inc., Disston
Division-Danville Works, herein called Respondent or Company, since on or about
October 21, 1963, violated Section 8(a)(5) of the Act by refusing to bargain with
United Steelworkers of America, AFL-CIO, herein called the Union, the duly certi-
fied representative of Respondent's employees involved in this proceeding. The
matter was duly heard before Trial Examiner Joseph I. Nachman at Danville,
Virginia, on October 6, 1964, with all parties represented and participating in the
hearing. Full opportunity was afforded all parties to present pertinent evidence, to
examine and cross-examine witnesses, to argue orally on the record, and to submit
briefs. Oral argument was presented and is included in the transcript of proceedings
at the hearing. Additionally, a formal brief has been received from the Union and
from Respondent, respectively, and further arguments in letter form have been
received from the General Counsel. All arguments submitted as aforesaid, have been
duly considered.
Upon the entire record in the case and my observation of the witnesses, including
their demeanor while testifying, I make the following:
FINDINGS OF FACT 2
1. THE UNFAIR LABOR PRACTICES ALLEGED
A. Background
Following a secret ballot election, the Regional Director for Region 5 of the Board,
on October 5, 1961, certified the Union as the collective-bargaining representative of
all production employees at Respondent's Danville, Virginia, plant, excluding office
clerical employees, professional employees, guards, and supervisors as defined in the
Act. The unit comprises about 300 employees who live within a radius of 35 to 40
miles from Danville. The Union maintains no office in Danville, that area being
serviced from the Union's office in Roanoke, a distance of about 85 miles.3
Following the certification, and through November 27, 1962, the parties had 28
bargaining sessions, but no agreement was reached. The chief negotiator for
Respondent at the meetings was Plant Manager Jones. Based on charges filed by the
Union, the Regional Director, on April 22, 1963, issued a complaint charging
Respondent with bad-faith bargaining during the aforementioned negotiations (Case
No. 5-CA-2344). That complaint was heard before Trial Examiner Ramey Dono-
van on May 23, 1963, and his Decision issued September 20, 1963. He found that
in the aforementioned negotiations, the main items that kept the parties apart were,
in addition to money matters, Respondent's refusal to agree to (1) an arbitration
provision although it insisted on a no-strike clause; and (2) a dues checkoff provision.
Trial Examiner Donovan concluded that Respondent's position on the arbitration and
no-strike provisions, and its unilateral changes in certain working conditions (which
it had refused to grant to the Union), demonstrated that its bargaining during the
aforementioned negotiations was not in good faith. The Trial Examiner's Recom-
mended Order required Respondent to cease and desist from refusing to bargain with
the Union, upon request to bargain with the Union, and to post appropriate notices.
No exceptions having been filed, the Board, on April 15. 1964, adopted the Trial
Examiner's Recommended Order.4
1Issued August 10 on a charge filed and served April 21. All dates mentioned are
1964, unless otherwise noted.
2 No issue of commerce or labor organization is presented. The complaint alleges and
the answer admits facts which adequately establish both elements. I find the facts as
pleaded. Likewise, no unit question is presented. The unit was fixed In the representa-
tion proceeding, and I find the same to be appropriate.
8 The uncontroverted testimony is to the effect that the Union's membership in the
Danville area does not justify the maintenance of an office in that area, but one of the
Union's members employed by Respondent maintains some files and records at his home,
and mail relating to the Union's business in Danville may be addressed to the home of
that individual.
4 On July 17, 1964, the United States Court of Appeals for the Fourth Circuit entered
a decree summarily enforcing the Board's Order.
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The current facts
After issuance of Trial Examiner Donovan's Decision, Respondent and the Union
resumed bargaining, the first meeting being held October 23, 1963. Between that
date and September 10, 1964, a total of 21 meetings were held, but no agreement
was reached. Plant Manager Jones was again Respondent's chief negotiator, attend-
ing all bargaining sessions on and after October 23, 1963. When bargaining negotia-
tions were resumed, some 14 items were open and unresolved. During the negotia-
tions which followed, each of the parties withdrew certain of its bargaining proposals,6
so that upon adjournment of the final meeting on September 10 only three items
remained unresolved. These were wages, health and life insurance, and checkoff. It
is undisputed that checkoff was discussed at virtually each of the 21 meetings held
after negotiations were resumed on October 23, 1963, and that Respondent refused to
grant the Union's request in that regard contending that the collection of union dues
was the Union's business which Respondent should not foster or promote. In view of
this position by Respondent, the Union's negotiator proposed, at several meetings,
two alternatives; namely, (1) that its financial secretary be given access to the plant
for a given period of time when dues were due, with leave to contact the employees
during the lunch period, or before or after work; or (2) that the Union's stewards be
permitted to collect dues in the plant during nonworking hours. Both of these sug-
gestions were rejected by Plant Manager Jones on the ground ". . . we are not going
to aid and comfort the International Union at this location" and "I should not help the
Union collect their dues, and this is what I am doing when I let them collect it on
company property ...."
Jones admitted that his objection to the Union's demand for a checkoff, and the
alternatives advanced by the Union, was not a matter of company policy, but was a
decision made by him as manager of the one plant involved and Respondent's chief
negotiator; that in fact other plants of Respondent have union contracts containing a
checkoff provision, but claims that these came into existence because of the economic
strength of the Union at the particular plant. Jones also admitted that his refusal to
check off union dues was not based on inconvenience to Respondent; that it would be
no more inconvenient than checking off for the purchase of U.S. savings bonds,
dependents, coverage under health insurance, United Givers Fund, and a Good
Neighbor Fund, for which Respondent does deduct from its employee's wages when
appropriately authorized.7
Contentions and Concluding Findings
There can be no doubt that check off is a mandatory subject of collective bargain-
ing, and that with respect to such issue either party may bargain to an impasse pro-
vided such bargaining is in good faith. N.L.R.B. v. Wooster Division of Borg-Warner
Corporation, 356 U.S. 342. And Section 8(d) of the Act provides that nothing
therein shall be construed as requiring either party to agree to a proposal, or the
making of a concession. But this statutory right to refuse to agree to a particular
proposal or to make a concession, may not be used "as a cloak . . . to conceal a
purposeful strategy to make bargaining futile or fail." N.L.R.B. v. Herman Sausage
Company, Inc., 275 F. 2d 229, 232 (C.A. 5). In short, what is required is a good-
faith approach to the issues between the parties with a serious intent to reach ultimate
agreement on an acceptable common ground. N.L.R.B. v. Insurance Agents' Inter-
national Union, AFL-CIO (Prudential Insurance Co.), 361 U.S. 477.
The narrow issue thus presented by this record, is whether, as the General Counsel
contends, Respondent's position on the Union's demands for a checkoff was a mere
device to frustrate agreement on a contract, or whether, as Respondent contends, it
was merely engaging in "hard bargaining," with no intention of preventing an agree-
ment. My careful consideration of the entire record convinces me that Plant Man-
ager Jones, Respondent's chief negotiator, took the position he did with respect to the
checkoff issue, for the purpose of frustrating agreement with the Union, and hence
engaged in bad-faith bargaining. I base this conclusion on the following factors:
s The precise meeting dates were: October 23 and 29 , November 13 and 26, and Decem-
ber 4 , 1963; and January S and 22, February 11, March 10, 11, and 24, April 7, 14, and
28, May 12, June 3, July 2 and 28, August 11 and 25, and September 10, 1964. Since
September 10, no meetings have been held.
e For example the Union withdrew its demand for arbitration, and Respondent withdrew
its demand for a no-strike clause.
7 The Good Neighbor Fund was a weekly deduction of 10 cents to cover the expense of
sending flowers to a sick fellow employee , donation to some charity , and other like mat-
ters. It was discontinued about a year prior to the hearing herein.
H. K. PORTER COMPANY, INC., ETC. 1373
1. In the prior case Jones' surface bargaining , designed to frustrate agreement with
the Union , except on the terms he adamantly insisted upon, was established . Indeed
the excerpts from Jones' testimony in the prior case, quoted in Trial Examiner Dono-
van's Decision , clearly demonstrate his union animus, and his attitude that the Union
was an evil he was required by law to tolerate and deal with , but he would prevent
it from having any more voice in the working conditions of the employees than he
was required to permit , and would seize - any opportunity that presented itself to
embarrass the Union in the sight of its employee members. Jones' demeanor while
testifying in the instant proceeding, convinced me that his attitude toward collective
bargaining had not changed since he testified in the prior case 8
2. Jones' explanation for his refusal to agree to any of the Union's suggestions for
the collection of its dues , namely, that he did not wish to give aid and comfort to the
Union by assisting it in collecting dues, if not actually a false reason, evidences an
attitude inconsistent with the obligation imposed upon an employer by the Act. The
very act of bargaining with a union , thus granting it recognition as the representa-
tive of the employees , in and of itself gives aid, comfort , assistance , and prestige to
that Union . But the policies of the Act , and the basic principles upon which it rests,
requires an employer to give this kind of "aid and comfort " to the designated repre-
sentatives of its employees . For, as the Board has held in a somewhat comparable
situation, it is inconsistent with the bargaining obligation which the Act imposes
upon an employer for the latter to conduct negotiations with the statutory representa-
tive in such a manner as to disparage or discredit the statutory representative in the
eyes of its employee constituents . General Electric Company , 150 NLRB 192
3. In the instant case Respondent seeks to explain away the fact that at other
plants it has contracts with unions which provide for a checkoff , by arguing , in sub-
stance, that those provisions were brought about by reason of the economic strength
of the union there involved, and urges that the Union's remedy in this case was to
call a strike rather than prosecute an unfair labor practice charge. Not only does
such a position by an employer run counter to the objectives of the Act which Con-
gress set forth in its statement of "Findings and Policies " (see Section 1 of the Act),
but it also demonstrates that Respondent 's purpose was to forestall reaching an
agreement with the Union by the expedient of disparaging the latter in the eyes of
the employees . Cf. Sunbeam Plastics Corporation , 144 NLRB 1010. This would
seem to be particularly true in view of Respondent 's admission that checking off
union dues would impose no burden upon it, and its admitted checkoff for Govern-
ment bond and United Givers Fund, neither of which seem particularly necessary
for the promotion of Respondent 's business.
Accordingly, I find and conclude that with respect to the issue of checkoff , Respond-
ent bargained with the Union from October 23 , 1963, through September 10, 1964,
in bad faith and thereby violated Section 8(a) (5) and ( 1) of the Act.a
11. THE REMEDY
Having found that Respondent has engaged in unfair labor practices , I shall rec-
ommend that it cease and desist therefrom , and that it take the affirmative action
hereafter set forth , which is deemed necessary to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section 2(2) of the Act, and
is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
8I fully recognize that because an employer engaged in bad-faith bargaining in one set
of negotiations , it does not necessarily follow that the employer ' s subsequent bargaining
negotiations were conducted in bad faith I merely hold that an employer ' s bad-faith
bargaining in the prior negotiations is a factor to be considered , along with the other
circumstances of the case , in determining whether his subsequent bargaining was in
good faith
9 This is not to say that in the resumed bargaining sessions which I shall recommend,
Respondent will be required to agree to some form of checkoff. I only find and conclude
that on that issue Respondent did not heretofore bargain in good faith, and that it should
be required to do so If after such good -faith bargaining the parties reach an agreement
or an impasse , the requirements of the Act will have been fulfilled. Also , I find It un-
necessary to pass on the contention advanced by the Charging Union , but not urged by
the General Counsel, that Respondent independently violated Section 8 ( a)(5) and (1) of
the Act, by rejecting the Union 's alternatives to its original checkoff proposal , because
in any event the order which I shall recommend would be the same.
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By failing to bargain in good faith with the Union over the issue of checkoff, as
set forth above, Respondent has engaged in and is engaging in unfair labor practices
proscribed by Section 8 (a) (5) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and pur-
suant to Section 10(c) of the National Labor Relations Act, as amended, it is rec-
ommended that Respondent, H. K. Porter Company, Inc., its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with United Steelworkers of America, AFL-
CIO, as the exclusive collective-bargaining representative of its employees in a unit
composed of all production and maintenance employees at its Danville, Virginia,
plant, excluding office clerical employees, professional employees, guards, and super-
visors as defined in said Act, with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment.
(b) In any like or related manner interfering with, restraining, or coercing employ-
ees in the exercise of their right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any and all such activities.
2. Take the following affirmative action found necessary to effectuate the policies
of said Act:
(a) Upon request bargain collectively with United Steelworkers of America, AFL-
CIO, as the exclusive representative of the employees in the aforesaid unit, and
embody any understanding reached into a signed contract.
(b) Post at its plant in Danville, Virginia, copies of the attached notice marked
"Appendix " 10 Copies of said notice, to be furnished by the Regional Director for
Region 5 (Baltimore, Maryland), shall, after being signed by an authorized repre-
sentative of Respondent, be posted by Respondent immediately upon receipt thereof,
and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the said Regional Director, in writing, within 20 days from the date
hereof, what steps it has taken to comply herewith."
io In the event this Recommended Order be adopted by the Board, the words "a Decision
and Order" shall be substituted for the words "the Recommended Order of a Trial Ex-
aminer" in the notice In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order"
n If this Recommended Order be 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 Respondents have taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby give notice that:
WE WILL, upon request, bargain collectively with United Steelworkers of
America, AFL-CIO, as the exclusive representative of our employees in a unit
composed of all production and maintenance employees at our Danville, Vir-
ginia, plant, excluding office clerical employees, professional employees, guards,
and supervisors as defined in the National Labor Relations Act, with respect to
rates of pay and other terms and conditions of employment, and, if an under-
standing is reached, embody the same into a signed agreement.
J. J. HAGERTY, INC. 1375
WE WILL NOT by refusing to bargain collectively with the duly designated rep-
resentative of our employees, or in any like or related manner, interfere with,
restrain, or coerce our employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist Steelworkers or any other
labor organization of our employees, to bargain collectively through representa-
tives of their own choosing, or to engage in other concerted activities for the
purposes of mutual aid or to refrain from any or all such activities.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of the above named or any other labor organization.
H. K. PORTER COMPANY, INC.,
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.
Employees may communicate directly with the Board's Regional Office, Sixth
Floor, 707 North Calvert Street, Baltimore, Maryland, Telephone No. 752-8460,
Extension 2100, if they have any question concerning this notice or compliance with
its provision.
J. J. Hagerty, Inc. and Peter Batalias
Nassau and Suffolk Contractors' Association, Inc. and Garrett
Nagle and Employer-Members of Nassau and Suffolk Contrac-
tors' Association , Inc., listed in Appendix A, Parties in Interest
J. J. Hagerty, Inc. and Thomas Eichacker
John C. Peterson Construction Co. and William Herbert Wilkens
Nassau and Suffolk Contractors' Association, Inc. and Its
Employer-Members Listed in Appendix "A"; Welfare Fund of
Local 138, International Union of Operating Engineers, AFL-
CIO, and Trustees William C. DeKoning, Girard Douglas, John
Gunning, Verner Sofield , John Buchanan, Edwin Regnell, Jr.,
Paul Roche and Herman Switzer and Robert Christensen and
Local 138, International Union of Operating Engineers, AFL-
CIO; Building Trades Employers Association of Long Island,
Inc., and Its Employer -Members Listed in Appendix "B," Parties
in Interest
Local 138, International Union of Operating Engineers, AFL-
CIO and Peter Batalias and Garrett Nagle and Thomas
Eichacker and William Herbert Wilkens and Nassau and Suf-
folk Contractors' Association, Inc. and Its Employer-Members
Listed in Appendix A, and Building Trades Employers Associa-
tion of Long Island , Inc., and Its Employer-Members Listed in
Appendix B, Parties in Interest
Local 138, International Union of Operating Engineers, AFL-
CIO and Robert Christensen and Nassau and Suffolk Contrac-
tors' Association, Inc., and Its Employer-Members Listed in
153 NLRB No. 116.