Industrial Wire Products Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 328 (N.L.R.B. 1969)

328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Industrial Wire Products Corporation and United
Electrical, Radio and Machine Workers of
America , Local 1421 , United Electrical , Radio and
Machine Workers of America (UE). Case
21-CA-8087
June 30, 1969
DECISION AND ORDER
On November 18, 1968 , Trial Examiner Martin
S. Bennett issued his Decision in the above -entitled
case , 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 Decision.
Thereafter, the Respondent filed exceptions and a
supporting brief, and the General Counsel filed an
answering brief.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner' s Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings , conclusions, and recommendations of the
Trial Examiner, as modified herein.
We agree with the Trial Examiner's finding that
the Respondent has bargained in bad faith with the
Union in violation of Section 8(a)(5) and (1) of the
Act.
We also find, on the basis of facts as found by the
Trial Examiner and supported by the record, that
the Respondent contrary to the requirements of
Section 8(d) of the Act refused without justifiable
reason to execute a written contract containing the
substantive provisions of the agreement reached with
the Union on June 19, 1968, as outlined by the
stipulation which the mediator presented on that
date and which was signed by the Union
representatives and Marlett, the Employer' s agent,
and thereby further violated Section 8(a)(5) and (1)
of the Act.'
THE REMEDY
In accord with the Board's particular duty under
Section 10(c) to tailor its remedies to the unfair
labor practices which have occurred and thereby
effectuate the policies of the Act,' we adopt the
'Borg Compressed Steel Corporation , 165 NLRB No. 55; Beverage-Air
Company , 164 NLRB No 156, enfd. in this respect 402 F .2d 411 (C.A. 4);
Schell Steel Products, Inc., 161 NLRB 939. In the absence of exceptions
by the General Counsel or the Charging Party to the Trial Examiner's
recommendation that the Respondent be ordered upon request to execute
the June 19 contract , we do not agree with our dissenting colleague that
the Respondent should be ordered to execute the May 7 contract.
Trial Examiner's recommendation that the
Respondent be required, at the Union's option,
either to sign a written contract embodying the
substantive provisions of the June 19, 1968,
agreement , or to bargain in good faith for a new
agreement . In the event the Union requests the
Respondent to sign the aforesaid written contract,
the Respondent shall put its provisions into effect
and reimburse the employees, with 6 percent interest
per annum thereon, for the loss of any benefits
which would have accrued to them under the
contract which the Respondent refused to sign.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
herein modified, and hereby orders that the
Respondent, Industrial Wire Products Corporation,
Los Angeles, California, its officers, agents,
successors, and assigns , shall take the action set
forth in the Trial Examiner's Recommended Order,
as herein modified:
Amend paragraph 2 by substituting the following
for subparagraph b:
(b) In the event the Union requests that the
contract agreed to on June 19, 1968, be executed,
reimburse all employees covered by the aforesaid
contract, together with 6 percent interest per annum
thereon, for the loss of any benefits which would
have accrued to them under the contract which the
Respondent refused to sign.
MEMBER FANNING, dissenting in part:
I join with my colleagues in finding that the
Respondent has engaged in bad-faith bargaining
with the Union in violation of Section 8(a)(5) and
(1) of the Act. I also agree with their conclusion
that the parties actually reached agreement on a
contract during these negotiations, but, unlike my
colleagues , I do not base this conclusion upon the
stipulation executed by the parties on June 19.'
According to the Trial Examiner's findings, which
the majority opinion adopts, the parties reached
final agreement on a contract at the May 7
bargaining session when both the Respondent and
the Union agreed to accept a modified version of a
proposal which had previously been submitted by
the Respondent. However, thereafter, when the
Union presented the formal document to
Respondent for signature, it was advised by
Respondent that certain of the previously
agreed-upon clauses were unacceptable. The
Respondent's repudiation of its May 7 contract with
the Union led to the June 19 meeting where under
the auspices of a conciliator, the Union agreed to
make several concessions on provisions agreed to in
'See H W. Elson Bottling Company, 155 NLRB 714.
'All events occurred in 1968.
177 NLRB No. 56
INDUSTRIAL WIRE PRODUCTS CORP.
the May 7 contract. As a result, the parties entered
into a stipulation of agreement on some 15 contract
items with the qualification that agreement on these
items was subject to the final approval of the
Respondent's president and ratification by the
employees. Several days later, the Union was
advised that the Respondent's president would not
approve all of the items in the stipulation and as a
consequence, no contract was ever executed by the
parties.
In my opinion, it is unnecessary to look beyond
May 7 in determining that the parties have entered
into a final and binding contract. The record fully
supports the Trial Examiner's finding that a
contract was agreed to at the May 7 bargaining
session , and by ignoring the significance of this
finding and predicating the existence of a contract
upon the June 19 stipulation, my colleagues are, in
effect, permitting the Respondent to benefit from
the commission of its unfair labor practices. By
reneging on its contractual agreement, the
Respondent was able to force the Union into giving
up benefits already won at the bargaining table, and
as a reward for such unlawful conduct, the majority
directs the Respondent, upon request, to execute a
document containing the concessions forced upon
the Union as a result of the Respondent's unfair
labor practices.
If, in fact, the parties did agree on a second
contract on June 19, it was not the voluntary
modification of an existing agreement to which I
would give effect. Rather, this so-called agreement
served only to detract from the contract previously
reached and its very existence was brought about
solely as a result of Respondent's unfair labor
practices. Furthermore, I would not find the June 19
stipulation binding upon the parties for yet another
reason. This stipulation expressly provided that final
agreement on the contract items listed was being
conditioned upon their approval by the Respondent's
president and their ratification by the employees.
Because neither of these conditions were met, I
would conclude that the stipulation cannot be
considered legally binding upon the parties.
In sum , I would resolve this issue by concluding
that the parties reached agreement on a contract on
May 7, and I would order the Respondent to
execute this agreement and put its terms and
provisions in effect, retroactive to May 7, if so
requested by the Union.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Trial Examiner: This matter was
heard at Los Angeles, California, on September 4 and 5,
1968. The complaint, issued July 5 and based upon
charges filed May 21 and July 5, 1968, by United
Electrical , Radio and Machine Workers of America,
Local 1421, United Electrical Radio and Machine
Workers of America (UE), herein called the Union,
329
alleges that Respondent , Industrial Wire Products
Corporation , had engaged in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act. Oral
argument was presented by Respondent and briefs have
been submitted by the General Counsel and Respondent.'
Upon the entire record in the case, and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Industrial Wire Products Corporation is a corporation
engaged in the manufacture and fabrication of wire
products and maintains its principal place of business at
Los Angeles, California. It annually purchases and
receives products valued in excess of $50,000 directly from
firms located outside the State of California. I find that
the operations of Respondent affect commerce within the
meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
United Electrical, Radio and Machine Workers of
America, Local 1421, United Electrical, Radio and
Machine Workers of America (UE) is a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. The Introduction; the Issue
Respondent' s plant was unorganized prior to the events
described herein. On January 25, 1968, and all dates
hereinafter refer to 1968, the Union was duly certified as
the bargaining representative of a unit of its employees. A
series of meetings for the negotiation of a contract
commenced on January 26 and culminated on July 2. The
General Counsel alleges that Respondent agreed on June
19 to all the terms and conditions of a contract, that it
thereafter refused to execute this agreement, that
Respondent engaged in surface and bad -faith bargaining
and that Respondent thereby engaged in the unfair labor
practices alleged herein . Respondent contends that no
agreement was reached and that it bargained in good
faith.
B. Appropriate Unit and Majority Representation
Therein
The complaint alleges , Respondent admits, and I find
that all production , maintenance , shipping and receiving
employees, and truckdrivers employed by Respondent,
excluding office clericals, salesmen , guards , watchmen and
supervisors constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b)
of the Act.
Following an election on January 17, the Union was
duly certified on January 25 as the representative of the
employees in the above-described unit. I find that the
Union was then , and now is, the representative of the
'The General Counsel has moved that ten purported errors in the
transcript of testimony be corrected . Respondent opposes proposed
corrections 6 and 7. The motion is granted with respect to the other
proposed corrections, denied as to those two and the pleading is hereby
received in evidence as TX Exh. 1.
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in said unit within the meaning of Section 9(a)
of the Act.
C. Sequence of Events
The parties met initially on January 26. Representatives
Humberto Camacho and Patrick Chaplin represented the
Union and present for Respondent were President E. R.
Potter, Secretary-Treasurer Joseph P. Rogel and
Respondent's attorney, Orville Marlett. This trio
represented Respondent at 9 meetings through April 18
and President Potter did not attend 6 meetings held after
that date. Marlett did represent Respondent individually
at a meeting on March 20 or 21. Marlett was the
principal spokesman for Respondent and I find that he
was its principal agent for the purposes of engaging in
collective bargaining . This meeting was basically
introductory in nature and consisted primarily of the
Union presenting a list of employees who would
participate as members of its negotiating committee.
Varying committee members attended subsequent
meetings.'
The second meeting was held on January 30 and
attended by the same group. Chaplin presented a lengthy
contract proposal and, according to Chaplin and
Camacho, read it in its entirety, although, in several
instances , he omitted clauses where the meaning was clear.
This provided for a union shop, a dues checkoff, was
silent as to duration and contained no wage provisions.'
Marlett and Rogel claimed that Chaplin stated the
contract was submitted only "for language purposes."
Both Camacho and Chaplin testified that this was
submitted as a contract proposal. Indeed, Chaplin claimed
that the Union admittedly was prepared to sign, if
Respondent was willing.
I credit Chaplin and Camacho herein. With respect to
this and subsequent meetings, Respondent displayed a
curious penchant for describing ostensible contract
proposals, including those it prepared, not as offers but
rather as " language provisions for negotiation purposes."
Marlett, as a witness herein, was asked to distinguish
these and came up with an explanation tailored to the
different versions of the parties. The simple answer in well
established industrial relations parlance is that any
contract proposal is negotiable and perforce contains
provisions for negotiating purposes. Yet, it is equally an
offer to which the parties may or may not agree or
bargain upon. Stated otherwise, contrary to Respondent, I
deem its position to be contrary to the realities of
collective bargaining and unsupportable.
I do find, however, that Marlett expressly pointed out
to the union negotiators that inasmuch as Potter was the
sole owner of Respondent, he, Marlett, was expressly
reserving to Potter the right to approve or reject any final
agreement.
Chaplin claimed, and I find, that he presented this as a
one year contract proposal and Camacho agreed, although
testifying that there was no discussion of the topic.
Marlett conceded only that at a meeting prior to April 18
'In treating with ensuing meetings, I deem it unnecessary to set forth
proposals and counterproposals in full as, in my view, a consideration of
this history in several specified areas, particularly union security, dues
checkoff and term of the contract , is dispositive of the case
'Camacho testified that wages were deliberately omitted , pending
clarification of job classifications in the shop . Marlett admitted that the
Union was "pushing for . . labor classifications" and, further , that the
Union requested and was granted a tour of the plant so as to evaluate job
functions prior to submitting wage proposals
with union negotiator Smith, who appeared on the scene
February 28, the prospect of a 1-year contract had been
discussed. Rogel claimed that this was discussed in March
and April and that Respondent had sought a 3-year
contract.
The next meeting was held on February 28 with one
change on the part of the Union. Chaplin having been
transferred to another assignment, he was replaced by
Alfred Smith. Smith commenced reading through the
contract previously presented by Chaplin and covered
some 10 to 15 pages. He testified, and I find, that Marlett
stated the union shop language was unacceptable. He
further testified that Marlett indicated, "Possible
agreement on some form of maintenance [of]
membership." Potter voiced no disagreement. According
to Camacho, Smith asked if Respondent would consider
maintenance of membership and Marlett responded that
Respondent probably would.' I find that Respondent
offered to accept a maintenance of membership plan on
this occasion.
When Smith read language calling for a checkoff of
dues pursuant to authorizations from employees, Rogel
objected on the ground that this presented additional tasks
for the payroll department; no objections were predicated
upon the principle as such. Smith then proposed that the
Union collect the necessary data, submit it to Respondent
and that only one monthly checkoff be made. According
to Camacho, Rogel replied that this was more likely of
acceptance.'
As for duration, Camacho testified, and I find, that
Smith spoke in terms of a 1-year contract. Smith testified
that a one year duration was touched upon at just about
all the meetings. According to Marlett, there had been
discussions at early meetings of the prospect of a I-versus
a 3-year contract and the testimony of Rogel was that
during March and April these two alternatives were
discussed. As will appear, the three year contract concept
arose at later meetings . And Marlett, it may be noted,
claimed that at the first two or three meetings, the
representatives of Respondent merely listened and took no
position on matters.
At the close of the meeting, Smith commented that the
proposal under discussion was unduly lengthly and
intricate and suggested that he present a shorter contract.
All agreed that this was desirable and Smith did so at the
next meeting.
On March 4, Smith presented and read part of a
ten-page contract proposal. This contained the customary
union-shop and dues-checkoff clauses . Marlett refused to
accept the union-shop clause but stated, according to the
uncontroverted testimony of Camacho and Smith, that
Respondent would present modified proposals based upon
some form of maintenance of membership.
Smith and Camacho agreed that Rogel again voiced his
objections to a provision that Respondent deduct dues
pursuant to employee authorizations. According to
Camacho, Marlett stated he would present a proposal that
only one deduction per month be made.
On March 5, the parties met again and Smith
continued the reading of the new contract proposal. On
either March 4 or 5, according to Camacho and I so find,
Smith stated that this was a 1-year contract proposal and
'Rogel testified that in March and April Respondent "suggested . I
think we inaugurated the fact of a modified [maintenance of membership]
plan."
'Rogel testified generally that , at one point in the negotiations, he agreed
that this procedure was feasible
INDUSTRIAL WIRE PRODUCTS CORP. 331
no objection was voiced. Smith testified to this same
general effect. Rogel testified generally that in March and
April the parties discussed both 1 and 3-year terms.
Marlett's testimony was similarly vague, testifying that at
a meeting prior to April 18 he and Smith discussed the
possibility of a 3-year versus a 1-year contract. I find that
Respondent's representatives voiced no objection to a
1-year contract on these occasions and that Respondent
offered to come forward with modified provisions on
maintenance of membership and dues checkoff.
The next meeting was held on March 14." According to
Camacho, and I so find, Smith asked Rogel for wage
classifications, pointing out that the Union had prepared a
wage proposal, but was holding it in abeyance. After
Rogel complained of difficulty in classifying the
employees, Smith agreed to drop the issue . Marlett stated
that they were almost in agreement on a contract, but that
he would propose some language. Smith suggested to
Potter that he authorize Marlett to meet with Smith and
complete the technical language of the contract; Potter
agreed and the meeting was set up for Marlett's office.
Smith corroborated Camacho that they met on March
14, worked from the Union's shorter contract proposal
and that it was arranged that Marlett would meet with
Smith. Potter agreed that Marlett was his agent, that they
could meet and initial agreed upon paragraphs and also
that the parties could then get down to wages. Marlett
and Rogel did not testify concerning this meeting.
On March 20 or 21, Smith and Camacho met with
Marlett in the office of the latter. They discussed a
contract brought to the meeting by Marlett which is in
evidence as G.C. Exh. 4. This contained, paradoxically,
union shop language that Respondent did not recognize a
union shop, that Respondent would recognize a union
shop if the Union obtained 100 percent membership in the
bargaining unit, that all new employees were to join in 30
days and that present employees were not required to join.
As for dues, Respondent was to make one deduction per
month, based upon a list of employees furnished by the
Union.
According to Camacho, Smith pointed out that the
language that Respondent did not recognize a union shop
was contrary to previous discussions. They agreed to
insert language that any employee hired after January 25,
1968, the date of the Union's certification, would be
required to join. Marlett agreed that this would be a
1-year contract from January 25, 1968. The Union
accepted the language relating to the collection of dues.
Marlett agreed to present a full contract plus a
company wage proposal at the next meeting. Here as well,
Marlett claimed that this was presented not as an offer
but as language provisions for negotiating purposes only;
this Smith flatly denied. Marlett also told them that
Potter and Rogel had not seen this document and that
they would have to concur, particularly as to union
security and dues provisions; he added that he, Marlett,
would recommend approval of the document to them.
I do not credit Marlett where his testimony is in
conflict with that of Camacho. As previously found,
Potter agreed with Smith on March 14 that Marlett and
Smith would meet and complete the technical language of
the contract. And, as indicated, I do not accept Marlett's
attempted explanation of the distinction between an offer
and language provisions for negotiating purposes only.
Finally, Marlett ultimately admitted that his contract
proposal was intended to reflect prior discussions at
meetings and that "All we had done was to agree in
principle as to what I was to put in this document. And
then I was to work out details."
The next meeting was held on April 8. Marlett
presented for consideration a document in evidence as
G.C. Exh. 5 which he allegedly prepared in order to have
"everything in one document for negotiating purposes
again."
This also contained language that a union shop would
be honored only when the Union obtained 100 percent
membership in the bargaining unit. When reminded that
he had agreed that this be stricken from the proposal he
brought to the previous meeting, Marlett again agreed
that it be stricken. It set forth union security language
previously agreed to, namely, that all employees hired
after January 25, 1968, would become union members
after 30 days of employment and that no employees as of
the effective date of the contract were required to join.
It also set forth the same dues checkoff language
prepared by Marlett in G.C. Exh. 4 which had been
accepted previously by the Union and it was again
accepted. Respondent made a wage proposal which was
rejected by the Union. Smith proposed that the contract
be put into effect and that the wage issue be resolved at a
later date; Marlett refused.
On April 18, the parties met again with only Camacho
present for the Union. Marlett claimed that Potter was
present only for introductory remarks and then departed.
Camacho disputed this, contending that Potter had been
present throughout the meeting. Marlett ultimately
conceded that he did not have detailed minutes of these
meetings . He also admitted, in his pretrial affidavit to the
General Counsel, that Potter was present and had made
some remarks to Camacho. He then testified that Potter
may or may not have been present during the meeting as
such. I credit Camacho.
According to Camacho, Marlett made an oral proposal
on wages for leadmen and shift differentials which was
agreed to by the Union which then withdrew its request
for labor classifications. Rogel stated that he had some
questions about union security and the dues checkoff.
Camacho responded that he did not intend to renegotiate
matters previously agreed upon. Marlett then suggested a
3-year contract and Camacho responded that this was a
possibility if Respondent would agree to a full union shop.
Marlett testified that he and Rogel advised the Union
at this meeting that Respondent would insist upon a
complete open shop and no dues checkoff. Camacho
protested that Respondent was taking "the guts" out of
the contract and, according to Marlett, this was the key
problem at the meeting. Marlett admittedly raised the
possibility of a 3-year contract.
Smith was advised by Camacho that he believed
Respondent was reneging on union security and dues
checkoff. Smith duly telephoned Marlett early in May, as
he testified, and Marlett advised him that Respondent
would not go along with any agreement on union security
and dues checkoff. Smith promptly accused Marlett of
reneging on their agreement in these two areas.
Chaplin reentered the picture at this time and he and
Camacho met with Marlett and Rogel on May 7. Potter
did not attend this or any subsequent meeting. According
to Chaplin, a clear and forthright witness whom I credit,
he pressed the parties to clear up all differences and arrive
at a final contract. He went through G.C. Exh. 5,
Respondent's last offer, and offered to accept a 3-year
contract if there were wage reopenings in the second and
'At one point the transcript erroneously places this as March 5. third years of the contract.
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties agreed on a union shop clause providing
that all new employees join the Union but giving present
employees the option to join or not. Rogel again came
forward with his oft repeated claim that that the dues
checkoff would require too much work and that the
payroll checks lacked a box to reflect same . Chaplin
proposed, and they agreed, that the Union would provide
Respondent with a monthly list of its members and that
Respondent would make one monthly dues deduction. The
meeting was adjourned with the understanding that
Chaplin would prepare in final form a contract embodying
all changes that had been made and that this would be
forwarded to Marlett for editing as to minor corrections.
Chaplin did so with copies to Rogel and Potter.
This was a 3-year contract with second and third year
wage reopenings , as Chaplin had previously agreed to, and
provided that all new hires after January 25, 1968, would
join the Union in 30 days and that employees on the
effective date of the contract, January 25, 1968, were not
required to join. It also provided for one dues checkoff
per month based upon a list to be supplied by the Union.
Camacho supported Chaplin in most respects. He
agreed that Chaplin was to prepare a contract reflecting
what was agreed upon at this meeting . He did not recall
any discussion of union security but did remember a
discussion concerning the dues checkoff , consistent with
the testimony of Chaplin.
The versions of Respondent's witnesses differ
considerably. According to Rogel, they discussed a 3-year
contract and Respondent took the same position it had
previously, namely, that it should be an open shop and
that it refused to agree to a dues checkoff. The only
agreement that Chaplin was to prepare was a contract
reflecting certain unit exclusions . Rogel' s testimony
patently goes too far. For he previously testified, as noted
above, that during March and April, as found, although
Potter insisted upon an open shop Respondent's
representatives had come forward with a proposal for a
modified maintenance of membership plan. Stated
otherwise , on the face of his own testimony, Respondent
reneged on May 7 from its previous proposal on union
security.
Indeed , even the testimony of Marlett, Respondent's
chief negotiator , does not go as far as that of Rogel. He
testified that the discussion on May 7 centered on
union-security and checkoff provisions. Marlett stated that
Respondent would do nothing to perpetuate the Union's
existence and, it "would have to earn its own way with the
employees," perhaps a realistic appraisal of its approach
to these negotiations . Marlett expressed his personal view
that Respondent would be better off with the dues
checkoff, although pointing to Potter ' s aversion to the
concept . The meeting ended with agreement that Chaplin
would draw up a contract to submit to Respondent for
consideration.
Chaplin, Camacho, and Smith were experienced
negotiators and Potter and Rogel were not. Marlett,
although handling labor matters , is primarily engaged in
corporate practice. While this is not dispositive of the
matter , it perhaps explains the intellectual quibbling
engaged in by Respondent ' s representatives in these
negotiations as noted above . And, as stated , Marlett and
Rogel do contradict each other. Accordingly, their
testimony here , as elsewhere , is not credited where in
conflict with that of the union representatives.
On May 20, Marlett advised Chaplin, according to the
latter, that, inter alia, the union-security and
dues-checkoff clauses were unacceptable to Respondent.
Chaplin protested that this was the second or third time
that agreement had been reached and that Respondent
had reneged. This led to the filing of the instant charge on
the following day.
The parties met on June 6 and thereafter under the
auspices of the Federal Mediation and Conciliation
Service, with Chaplin representing the Union and Marlett
and Rogel present for Respondent. Chaplin testified that
he contended a final agreement had been reached and that
Respondent had refused to sign. Marlett explained that
Potter refused to accept this contract.
Another meeting was held on June 13. According to
Chaplin, Marlett objected to wage reopening clauses in
the second and third years of a 3-year contract and
claimed that the collection of dues was the Union's
province. Union security was not discussed. Rogel again
contended that collection of dues would be a burden upon
Respondent. The union representatives protested that an
agreement had previously been reached on union security
and dues checkoff.
Smith and Chaplin met again on June 19 with Marlett
and Rogel. Ultimately, the conciliator outlined a
settlement stipulation of 15 items which was signed by
Marlett, Smith and Chaplin. Inter alia, it incorporated
G.C. Exh. 6, previously identified; provided for a 3-year
contract term from the certification date; provided for
maintenance of membership;' provided that the Union
would collect its own dues on company premises 1 day a
month; and, as item 15, provided that the stipulation was
subject to ratification by President Potter and the
employees.
Chaplin and Smith testified that Marlett agreed to
prepare a final contract reflecting G.C. Exh. 6 as modified
by the stipulation executed on that date, G.C. Exh. 7.
According to Marlett, the mediator came up with the
maintenance of membership and dues provisions described
above and Marlett "felt this was a good compromise." He
and Rogel did point out that they were under instructions
from Potter not to accept any form of union security or
dues checkoff.' They attempted to reach Potter by
telephone but were unable to do so. Marlett and Rogel
thereafter met with Potter and explained what they had
agreed to. Potter refused to ratify the maintenance of
membership and dues collection clauses.
On June 24, the parties met again, with Marlett
stressing that he had not prepared a contract
incorporating G.C. Exh . 6 and 7. According to Chaplin,
Marlett was asked for the new contract and responded
that his secretary had been too busy to prepare it. Chaplin
denied that the company representatives announced that
Potter refused to approve the stipulation insofar as it
related to union security and dues collections. Smith
agreed that Marlett said that he had been too busy to
prepare a contract, but ultimately admitted that he did
not recall whether a reference was made to the secretary
being too busy and whether Marlett said there was no
contract because Potter had not approved the union
security and dues collection clauses. I deem it unnecessary
to resolve this conflict.
Marlett testified, and Rogel agreed, that when the
Union asked for his contract proposal on June 24, he
replied that Potter had not approved the stipulation and,
'All employees who signed union cards after the date of the agreement
were to maintain union membership . Present employees were not required
to join.
'As noted, the stipulation merely allowed the Union to enter Company
premises once a month to collect dues.
INDUSTRIAL WIRE PRODUCTS CORP. 333
therefore , he had no contract with him.
The parties met again on July 2 . Marlett stated,
according to Chaplin, that although he believed that the
union representatives would not be enamored of his
product, a realistic observation, he had prepared a
document which was not a proposal and not an agreement
but merely "proposed language for an agreement." This
document , in evidence as G.C. Exh. 8 , provides for an
open shop , expressly states that there will be no checkoff
of dues and provides that the Union was to collect dues
outside company premises . It also provides for a 5-year
contract term. Chaplin immediately protested that the
parties had a different agreement and that it was pointless
to continue making agreements that Respondent would
not sign.
As is readily apparent , this proposal was contrary to
the language in G.C . Exh. 6 and 7 calling for maintenance
of membership and permitting the union to visit company
premises once a month to collect dues . It also proposed a
5-year contract term based upon this altered language, in
conspicuous contrast to the earlier discussions of a I- or
3-year contract predicated upon terms of employment
more favorable to the Union.
D. Conclusions
A consideration of this course of conduct by
Respondent impels the conclusion that it has been remiss
in its obligations under the Act. The net result is that
Respondent sent forth negotiators clad with ostensible
authority who were nothing more than a conduit, that it in
effect attempted to engage in shadow boxing to a draw,
that it reneged on contractual commitments and that it
ultimately came forward with what it aptly termed as a
"conservative" proposal, wherein it not only reneged on
prior agreements but actually retrogressed to a proposal
containing less than what it had previously agreed to;
indeed , in this proposal , it sought a 5-year term in
contrast with prior agreements for a shorter term for
contracts more favorable to the Union . This is not to say
that a party must make concessions in bargaining . It is to
say that one must approach the bargaining table with an
open mind not hermetically sealed against making
concessions.
The purpose of bargaining is to produce an agreement
and not talk merely for the purpose of going through the
motions . Mere discussion with a fixed resolve not to enter
into an agreement in certain areas does not satisfy one's
obligations under the Act. N. L.R.B. v . Highland Park
Mfg. Co. 110 F.2d 632, 7 (C.A. 4); Stuart Radiator Core
Mfg. Co. Inc., 171 NLRB No. 27; and Warehousemens
Union Local 17, IL WU, 171 NLRB No. 160.
(1) Perhaps a cornerstone of Respondent ' s approach to
collective bargaining was its insistence , noted above, that
ostensible contract proposals were presented for language
purposes only, language for negotiating purposes only or
language for further consideration. Needless to say, any
contract proposal is put forth presumably for discussion
and consideration and this attempted distinction is
meaningless . In short, Respondent ' s position is perforce
that it refused to consider any document it came forward
with in the course of negotiations as a contract proposal.
This reflects its bad faith and indeed this view is fortified
by an inspection of the one document it designated as a
contract proposal, namely its retrogressive proposal of
July 2. Moreover , in testifying about a March meeting,
Marlett admitted that the parties had agreed that the
document he had prepared was to reflect what they had
agreed upon "in principle."
(2) Despite the foregoing , Marlett raised the possibility
of agreement on a maintenance of membership provision
at the February 28 meeting . And, on March 4, Marlett
announced that he would present such a proposal . Indeed,
in testifying about March and April meetings, Rogel
conceded that although Respondent preferred an open
shop, it had come forward with a proposal for a
maintenance of membership clause in lieu of any union
shop.
(3) Marlett' s concept of a maintenance of membership
provision is reflected in a contract he presented at a
meeting on March 20 or 21. This contained a proposal
providing in part that Respondent would recognize a
union shop only after the Union had achieved 100 percent
membership in the bargaining unit. When his attention
was directed to prior discussions in this area , he retreated
to language requiring new hires to join the Union after the
date of its certification.
(4) At the May 7 meeting , Union Negotiator Chaplin
went through the document presented by Respondent at
the April 8 meeting and offered to accept it , providing
there were wage reopeners in the second and third years.
He agreed that the Union would provide the list for dues
checkoff and it was also agreed that Chaplin would
prepare a final document . Chaplin did so . This contained
the wage reopening provisions agreed to, a requirement
that new hires after the certification date join the Union,
and a provision for a dues checkoff once a month . But, on
May 20, Marlett advised the Union that , inter alia, the
union-security and dues-checkoff clauses were
unacceptable . This clearly was reneging upon a prior
agreement and led to the filing of the charge in the instant
proceeding.
(5) There is still another example of reneging on the
part of Respondent . Despite the existence of a contract
previously agreed to, the parties met on June 19 under the
auspices of a conciliator and entered into a stipulation
containing 15 items . In some respects , the Union yielded
and made concessions detracting from what had been
agreed to previously in its favor . This stipulation provided
for a 3-year term, maintenance of membership for all
hires after the date of the date of the agreement, no
checkoff, and that the Union would collect its own dues.
Marlett agreed to propose a new contract incorporating
these modifications but failed to do so, explaining that
Potter had refused to approve the maintenance of
membership clause and the language permitting the Union
to collect its own dues once a month on company
premises. As noted, on July 2, Respondent came up with
a 5-year calling for an open shop, rejecting any checkoff
and forbidding any dues collections on company premises
by the Union.
(6) Respondent has relied upon the express reservation
to Potter on June 19 of the right to approve the new
contract . Obviously, there is nothing wrong with this
provision as such . But such a provision may not be
utilized as a device to undermine collective bargaining.
Initially, I note that this is not a case where final
approval or ratification has been reserved to one not privy
to the negotiations . President Potter personally
participated in all meetings through that of April 18.
Thereafter , as Marlett testified, he and Rogel personally
filled in Potter fully and immediately as to what was
taking place at each subsequent meeting . He was also
fully aware of the content of the various documents
presented by the parties and ultimately agreed to in
negotiations.
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It would be a travesty upon the right of ratification to
permit one whose agent has agreed to a contract to
exercise a right of disapproval under these circumstances.
This is all the more so where the agent comes forward
with proposals in the area of union security and gives a
labor organization reason to believe that agreement can be
reached in this area , as indeed it was.
Perhaps the final straw was Marlett ' s admission that
his instructions from Potter prior to June 19 were to hold
firm and not depart from an open shop and no dues
checkoff. And, as Rogel put it, Potter never changed his
mind in these two areas.
In fact, Marlett admitted that in agreeing on June 19 to
the stipulation on maintenance of membership and dues
checkoff clauses, he had acted in express derogation of his
authority from Potter . And, Potter had been aware of the
union- security and dues-checkoff language agreed to in the
earlier proposals , but sat back and permitted the
negotiations to proceed with the Union assuming that
there was agreement in these areas . This type of
sandbagging is a far cry from a good-faith reservation of
the right to approve contract terms and connotes rather
bad faith.
Viewed from another angle , Respondent presented and
endowed with ostensible authority a representative who
lacked authority to enter into binding clauses in certain
areas , sat back quietly while this agent did enter into
agreements beyond his designated authority , permitted the
Union , with justification , to assume that a meaningful and
final contract had been arrived at and then, when
presented with this agreement and the moment of truth,
decided to reject the contract.
This is perhaps underlined by Marlett ' s comment at the
May 7 meeting that Respondent would do nothing to
perpetuate the Union ' s existence and that it would have to
earn its own way with the employees . Respondent's
interpretation of this amounted to reneging upon prior
commitments , particularly on June 19, and it then came
forward with a contract proposal on July 2 which
retreated from language previously agreed upon. This
approach to collective bargaining can only be termed as
superficial and entirely in derogation of the principles of
good-faith bargaining.
In view of the foregoing considerations , I find that
Respondent has bargained in bad faith with the Union,
has violated and rejected the principles of good-faith
collective bargaining and has thereby engaged in unfair
labor practices within the meaning of Section 8 (a)(5) and,
derivatively , Section 8 (a)(1) of the Act. Associated
Transport Co. of Texas, Inc., 173 NLRB No. 23.'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, and occurring in connection with its operations
described in section I, above , have a close , intimate, and
substantial relationship to trade , traffic, and commerce
among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow thereof.
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It has been found that Respondent refused to bargain
with the Union as the duly designated representative of its
employees in an appropriate unit, and further, that
Respondent reneged on the agreement arrived at on June
19, 1968. I shall therefore recommend that Respondent,
upon request by the Union, execute said contract and put
its provisions into effect for a 3-year term, from January
25, 1968, as provided therein, or, if no such request is
made, bargain in good faith with the Union and, if an
understanding is reached, embody such understanding in a
signed document. I shall also recommend that Respondent
make whole its employees for any losses suffered by
reason of its failure to sign and honor said agreement of
June 19, including unpaid wages or other benefits, with
interest at the rate of 6 percent per annum. See N.L.R.B.
v. Beverage-Air Co., 402 F.2d 411 (C.A. 4); N.L. R.B. v.
Strong, 386 F.2d 929 (C.A. 9), cert. granted May 27,
1968, and N.L.R.B. v. Hyde's Supermarket, 339 F.2d 568
(C.A. 9).
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. Industrial Wire Products Corporation is an employer
within the meaning of Section 2(2) of the Act.
2. United Electrical, Radio and Machine Workers of
America, Local 1421, United Electrical Radio and
Machine Workers of America (UE) is a labor
organization within the meaning of Section 2(5) of the
Act.
3. All production, maintenance, shipping and receiving
employees and truckdrivers of Respondent, excluding
office clericals, salesmen , guards, watchmen and
supervisors, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b)
of the Act.
4. United Electrical, Radio and Machine Workers of
America, Local 1421, United Electrical Radio and
Machine Workers of America (UE) has been at all times
since January 25, 1968, and now is, the exclusive
representative of the employees in the aforesaid
appropriate unit, within the meaning of Section 9(a) of the
Act.
5. By refusing on and after June 19, 1968, to bargain
with the Union as the exclusive representative of its
employees in the aforesaid appropriate unit, Respondent
has engaged in and is engaging in unfair labor practices
i within the meaning of Section 8(a)(5) of the Act.
6. By the foregoing conduct, Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it cease and
'There are other items demonstrating Respondent ' s bad faith, but I
believe they would be cumulative
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
it is recommended that Respondent, Industrial Wire
Products Corporation, Los Angeles, California, its
officers, agents, successors, and assigns, shall:
INDUSTRIAL WIRE PRODUCTS CORP.
1. Cease and desist from:
(a) Refusing , upon request by United Electrical, Radio
and Machine Workers of America, Local 1421, United
Electrical Radio and Machine Workers of America (UE),
to execute a written agreement embodying the terms and
conditions of employment agreed upon with said Union on
June 19, 1968, and refusing to put into effect its
provisions for a 3-year term, from January 25, 1968, or, if
no such request is made, refusing to bargain in good faith
with said Union as the exclusive representative of its
employees in the above-described appropriate unit with
respect to rates of pay, wages , hours of employment, and
other terms and conditions of employment and, if an
understanding is reached, to embody same in a signed
agreement.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
right to self-organization , to form labor organizations, to
join or assist the above-named or any other labor
organization, to bargain collectively through
representatives of their own choosing, to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and to
refrain from any or all such activities, except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request of the aforesaid Union, forthwith
execute the contract agreed to on June 19, 1968, and put
into effect its provisions for a 3-year term, from January
25, 1968, or, if no such request is made , bargain
collectively with said Union as the representative of the
employees in the above unit and, if an understanding is
reached, embody same in a signed agreement.
(b) Make whole all employees covered by the aforesaid
contract for the loss of any benefits which would have
accrued to them under the contract it refused to sign, with
interest at 6 percent per annum thereon.
(c) Post at its plant at Los Angeles, California, copies
of the attached notice marked "Appendix."'" Copies of
said notice on forms furnished by the Regional Director
for Region 21 shall, after being duly signed by
Respondent, be posted immediatley upon receipt thereof
and maintained by it for 60 consecutive days thereafter in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced or covered by any other material.
(d) Notify the Regional Director for Region 21, in
writing , within 20 days from the receipt of this Decision,
what steps it has taken to comply herewith."
"In the event this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event the Board 's Order is enforced by a decree of a United States Court
of Appeals, the words "a Decree of the United States Court of Appeals,
Enforcing an Order" shall be substituted for the words "a Decision and
Order."
"In the event this Recommended Order is adopted by the Board, this
provision shall be modified to read : "Notify said Regional Director, in
writing, within 10 days from the date of this Order , what steps the
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
335
Pursuant to the Recommended Order of a Trial
Examiner of The National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL, upon request, by United Electrical, Radio
and Machine Workers of America, Local 1421, United
Electrical Radio and Machine Workers of America
(UE), sign the written contract reached with that Union
on June 19, 1968, and put its provisions into effect for
a 3-year term, from January 25, 1968, or, if no such
request is made, we will bargain collectively with said
Union as the representative of our production,
maintenance, shipping and receiving employees and
truckdrivers, excluding office clericals, salesmen,
guards, and supervisors and, if an understanding is
reached, embody same in a signed agreement.
WE WILL make whole all employees covered by the
aforesaid contract for the loss of any benefits accrued
thereunder , with interest at 6 percent per annum.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce employees in the exercise of
their right to self-organization , to form labor
organizations , to join or assist the above-named or any
other labor organization , to bargain collectively through
representatives of their own choosing , to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection and to
refrain from any or all such activities, except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment.
INDUSTRIAL WIRE
PRODUCTS CORPORATION
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 849 South
Broadway, Los Angeles, California 90014, Telephone
688-5229.