Inland Lime and Stone Co.

National Labor Relations Board - Board Decisions

Jun 17, 1940

24 N.L.R.B. 758 (N.L.R.B. 1940)

In the Matter Of INLAND LIME AND STONE COMPANY and LOCAL No. 377
OF THE INTERNATIONAL UNION OF MINE, MILL AND SMELTER WORKERS
(C. I. 0.)
-Case No. C-1446.-Decided June 17, 1910
Stone Quarrying Industry-Unit Appropriate for Collective Bargaining: pro-
duction and maintenance employees , excluding supervisory and clerical em-
ployees-Representatives : proof of choice : comparison of Union's authorization
with employer 's due bills made prior , to commencement of negotiations for col -
lective bargaining revealed Union represented majority-Collective Bargaining:
meaning of ; negotiations in good faith ; meeting with representatives but with
no bona fide intent to reach an agreement ; counterproposals , failure or refusal
to make; putting vacation plan in effect by unilateral action during negotiations;
ordered, to bargain and to embody in signed agreement any understanding
reached. -
Mr. Frederick P. Mett and Mr. Jacob I. Karro, for the Board.
Pope and Ballard, by Mr. Merrill Shepard, of Chicago, Ill., and
-Mr. J. Joseph Herbert, of Manistique , Mich., for the respondent.
Mr. Howard Welch, of Manistique, Mich., for the Union.
Mr. Edwin L. Swope, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Local No. 377 of
the International Union of Mine, Mill and Smelter Workers (C. I. 0.),
herein called the Union, the National Labor Relations Board, herein
called the Board, by the Regional Director for the Twelfth Region
(Milwaukee, Wisconsin) issued its complaint dated November 6, 1939,
against Inland Lime and Stone Company, Manistique, Michigan,
herein called the respondent, alleging that the respondent had en-
gaged in and was engaging in unfair practices affecting commerce,
within the meaning of Section 8 (1) and (5) and Section 2' (6). and
(7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. Copies of the complaint and' accompanying notice of hear-
ing were duly served upon the respondent and upon the Union.
24 N. L.' R. B., No. 79.
758
INLAND LIME AND STONE COMPANY 759
The complaint alleged in substance that on or about May 10 and at
all times thereafter the respondent refused to bargain collectively
_with the Union as the exclusive representative of its employees in an
appropriate unit although the Union had, been designated by a ma-
jority of such employees as their representative for the purpose of
collective bargaining. On November 17, 1939, the respondent filed
its answer denying that it had engaged in. the unfair labor practices
alleged in the complaint and denying and admitting certain allega-
tions of the complaint concerning. its business and operations..
Pursuant to notice, a hearing was held at Manistique, Michigan,
on November 24 and 25, 1939, before Gustaf B. Erickson, the Trial
Examiner duly designated by the Board. The Board, the respond-
ent, and the Union were represented by counsel and participated in
the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses , and to introduce evidence bearing on the issues,
was afforded all parties. . At the beginning of the hearing, the re-'
spondent moved that the complaint be dismissed for the reason that it
was based upon an "insufficient charge", since the person who signed
the, charge had no personal knowledge of the respondent' s actions.,-
This-motion was overruled by the Trial Examiner and we hereby
affirm his ruling.2 At the conclusion of the hearing the Trial Exam-
iner granted a motion made, by counsel for the Board without objec-
tion by the respondent to conform the pleadings to the proof. Dur-
ing the hearing the Trial Examiner made several other rulings on
motions and on objections to the admission of evidence. The Board
has reviewed the rulings of the Trial Examiner and finds that no
prejudicial errors were committed. The rulings are hereby affirmed.
At the conclusion of the hearing, counsel for the Board moved to be
allowed to take the deposition of Omer S. Hoebreckx, a Field Exam-
iner assigned to the Board's Twelfth Regional office, who was not
then available, to rebut certain testimony offered by the respondent
late in the afternoon of the closing day of the hearing. The motion
was granted and the deposition was ordered'to be taken by counsel
for the Board within ten days in Chicago, Illinois, upon due notice
1 The original charge was filed on May 20, 1939, in behalf of the Union ' by Vernon
Hodge , its International Representative , who had direct knowledge of the matters con-
tained therein . Hodge was replaced as International Representative of the Union by
Howard Welch on August 31, 1939 , and informed Welch concerning the basis for the
charge . Upon the basis of the information he had received, Welch filed the amended
charge in behalf of the Union on October 24, 1939.
2 The charges filed herein satisfied the requirements of both the Act and the Board's
Rules and Regulations. Matter of Continental Roll and Steel Foundry Company, a
corporation and Lodge 1026, Amalgamated Association of Iron, Steel and Tin Workers
through Steel Workers Organizing Committee, affiliated with the Congress of Industrial
Orl/aitiizations, 1.9 N. L: B. B. 720. The function of the charge is to call the attention of the
Board to the fact that certain unfair labor practices are alleged to have been committed.
See Matter of Shell Petroleum Corporation and International Union of Operating Engineers,
10 N. L. R. B. 719.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to counsel for the respondent who was granted the right to cross-
examine the witness at the time of the taking of the deposition. Upon
due notice Hoebreckx's deposition was taken in Chicago, Illinois, on
December 1, 1939, and was thereafter filed with the Trial Examiner.
On December 8,' 1939, the Trial Examiner filed .his Intermediate
Report, finding that the respondent had engaged in and was engag-
ing in unfair labor practices affecting commerce, within the meaning
of Section 8 (1) and (5) and Section 2 (6) and (7) of the Act, and
recommending that the respondent cease .and desist therefrom and
take certain specified affirmative action.. The Trial Examiner also
ruled on motions upon which he had reserved decision during the
hearing, and received the above-mentioned depositions in evidence,
marking it Trial Examiner's Exhibit No. 1. The Board has reviewed
these rulings and finds that no prejudicial errors were committed.
The rulings are hereby affirmed. On January 15, 1940, the respond-
ent filed exceptions to the Intermediate Report and, on February 5,
1940, filed a brief in support of its exceptions. On January 15, 1940,
the respondent filed a motion to reopen the hearing in order to take
further testimony. This motion is discussed below in Section III
and is denied for reasons stated there. On February 23, 1940, the
respondent filed a motion with the Board renewing its earlier motion
to dismiss the complaint for the reason that the person who signed
the amended charge had no personal knowledge of the respondent's
actions, and for the additional reason that no sufficient basis existed
at any time for the issuance of a complaint against the respondent.
This motion is hereby denied.
Pursuant to notice duly served on all the parties, a hearing for the
purpose of oral argument was had before the Board in Washington,
D. C., on March 5, 1940. The respondent was represented by counsel
and participated ,in the argument.
The Board has considered the exceptions to the Intermediate Re-
port filed by the respondent, and the brief in support thereof and,
in so far as they are inconsistent with the findings, conclusions and
order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT "
The respondent is a Michigan corporation engaged in•.the business
of quarrying, preparing, and selling stone, including limestone, for
use .in the production and manufacture of steel, cement, glass, and
8 The findings In this section are based primarily upon a stipulation of facts between
counsel for the Board and counsel for the respondent.
INLAND LIME AND STONE COMPANY 761
paper, and -in highway and marine construction. Its office is located
in Manistique, and its quarries and sole place of business in Mackinaw
in Schoolcraft County, Michigan. It employs approximately 274
persons.
The respondent is a wholly owned subsidiary of Inland Steel Com-
pany, a corporation, herein referred to as Inland, which has its prin-
cipal office in Chicago, Illinois. A vice president of Inland is also
president of the. respondent.
The respondent is one of four large national producers of stone.
Its annual output is about 1,500,000 tons and, during 1938, its sales
amounted in the aggregate to about $900,000. All the respondent's
fluxing stone, constituting approximately 70 per cent of its total pro-
duction, is sold f. o. b. Port Inland Docks, a port located on Lake
Michigan in the State of Michigan and transported by the purchasers
to steel companies located outside the State of Michigan. In 1938
these purchasers of its stone, apart from Inland,4 included Bethlehem
Steel Corporation in New York and Youngstown Sheet and Tube
Company in Indiana and Illinois. One-third to one-half of the re-
maining 30 per cent of the respondent's output is sold and delivered
to purchasers outside the State of Michigan, principally in Wisconsin
and Minnesota. Seventy per cent of the respondent's product is pro-
duced on special requisition, and 80. per cent of the said 70 per cent
is sold on contract to purchasers outside the State of Michigan.
. Products destined for shipment to purchasers outside the State are
loaded on boats at the respondent's docks and on railroad cars run-
ning on trackage on the respondent's property and connecting directly
with the' Minneapolis,' St. Paul, and Saillt Ste. Marie Railroad, an
interstate carrier. It was estimated at the hearing that during 1939
about'40,000 tons of stone would be transported in about, 8 boat loads
from the respondent's dock in the State of Michigan to a dock located
at the Port of Milwaukee, Wisconsin, which is leased by Inland Lime
and Stone Company of Wisconsin, a wholly owned subsidiary of the
respondent, and that the stone would there be sold to purchasers in
the State of Wisconsin.
,The annual cost of supplies and equipment purchased by the re-
. spondent and used at its quarries is approximately $50,000, of which
40 to 60 per cent is spent for goods brought in from outside the State
of Michigan.. The most important of these supplies, is blasting
powder, and two-thirds of the amount used, about 260,000 pounds
annually, is purchased from and shipped to the respondent by the
DuPont Powder Company, located in New England, and the Atlas
Powder Company, located in Pennsylvania..
4In 1938 between 20 and 25 per cent of the respondent's total output of- stone was.
sold to Inland.
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATION INVOLVED -
International Union of Mine, Milt and Smelter Workers, Local 377,
affiliated with the Congress of Industrial Organizations , is a labor
organization admitting to membership production and maintenance
employees of the respondent excluding supervisory and clerical
employees.
I.II. THE UNFAIR .LABOR PRACTICES
A. The refusal to bargain collectively
1. The appropriate unit
The complaint alleges that the production and ' maintenance em-
ployees of the respondent, excluding supervisory and clerical em-
ployees, constitute .a unit appropriate for the purposes of collective
bargaining. All the employees in such unit are eligible ifor mem-
bership in the Union. No evidence, was offered at the hearing to
show that such unit is inappropriate, and the respondent- did not
except to the Trial Examiner's finding in his Intermediate Report
that it constituted an appropriate unit.
We find that the production and maintenance employees of the
respondent excluding supervisory and clerical employees at all. times
material herein constituted and that they now'constitute a unit appro-
priate for the purposes of collective bargaining with respect to rates
of pay, wages, hours of employment, and other conditions of em-
ployment, and that said unit insures to employees of the respondent
the full benefit of their right to self-organization and to collective
bargaining and otherwise effectuates the policies of the Act.
B. Representation by the Union of a majority in the appropriate unit
On April 18, 19, and 20, 1939, 175 of the respondent's employees in
the unit which we have found to be appropriate signed statements
designating the Union to act as their collective bargaining, agents
Thereafter, on April 20, the Union filed a petition with the Regional
Director alleging that a'question had arisen concerning the repre-
sentation of employees of the respondent -and requesting an ilivestiga-
tion and certification of representatives pursuant to Section 9 (c) of
the Act. Subsequently, by arrangement between the parties, a con-
These statements read as follows : -
, I, the undersigned, do of my own free will hereby authorize the International
Union of Mine, Mill and Smelter Workers Local 377, its agents or representatives
to act for me as collective bargaining agency in all matters pertaining to rates
of pay, hours of employment or conditions of employment with my employer, Inland
Lime Stone Company.
Signed ____--------------- _, and'thereunder the word, Witness'appears.
INLAND LIME AND STONE COMPANY 763
ference was held in the Regional Director's office on April 26, at
which the Regional Director, counsel for the respondent, and a rep-
resentative of the Union were present. During the conference a
comparison was made of the employees' signatures on the 175 author-
izations with those' on 199 due bills furnished by the respondent.,,
The signatures on 167 of the 175 signed authorizations were found to
be authentic. Therefore, on April 26, the Union represented 167 of
the 199 employees in the appropriate unit.
We find that on April 26, 1939, and at all times thereafter, the Union
was the duly designated representative of a majority of the employees
in the appropriate unit, and, pursuant to Section 9 (a) of the -Act,
was the exclusive representative of all the employees in such unit for
the purpose of collective bargaining in respect to rates of pay, wages,
hours of employment, and other conditions of employment.
3. The refusal to bargain
On April 7, 1939, Vernon Hodge, International Representative of
the Union; informed A. J. Cayia, general superintendent of the re-
spondent, that the Union represented a majority of the respondent's
employees and requested a conference for collective bargaining pur-
poses. Thereafter, on April 10, a conference was held. The Union
was represented by John Lehman, Nels Halsey, Bob Stroud, and
Delphie Desautel; all employees of the respondent, and by Hodge. The
respondent was represented by Cayia and Alfred Heitman, assistant
general superintendent of the respondent. Hodge again informed
Cayia and Heitman that the Union represented a majority of the.em-
ployees and presented to them for their consideration a proposed draft
contract between the Union and the respondent. Cayia, without ques-
tioning the Union's claims that it represented a majority of the re-
spondent's employees, agreed to consider the proposed contract. The
parties then determined to meet again on April 17, and the meeting
adjourned.
On April.17 the second conference of the parties took place. The
same persons who attended the first meeting were present, except that
Desautel was replaced by Edward Hokenson, another employee.
Hodge suggested that they begin to negotiate on the proposed contract
previously submitted. Cayia stated that the respondent was ready to
bargain, but that the Union would first have to present proof of its
claim that it represented a majority of the employees. The Union
acquiesced in .this request. Cayia suggested that the Union. engage
a public accountant to make the necessary investigation, but Hodge
e The due bills represented receipts from the respondent 's • employees in'. the unit,
found above to be appropriate, for pay received on April 19, 1939:
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was of the opinion that the matter should be referred to the Board.
However, . Hodge told Cayia that the union members would have to
snake the decision. At a union meeting, held the next day, the members
decided in favor of the Board making the investigation, and Cayia
was so informed. As noted. above in Section B, on April 20, the Union
filed with the Regional Director a petition requesting an investigation
and certification of representatives of the respondent's employees, and,
on April 26, by arraiigement of the parties, a conference was held in
the Regional Director's office where a comparison was made between.
the Union's signed authorizations and the respondent's signed due
bills. which revealed that 167 of the 199 employees in the bargaining.
unit had designated the Union to represent them. Cayia was informed
of the results by counsel for the respondent.
The third conference was held on May 1, 1939. The Union was
represented by Hodge, Hokenson, Halsey, Stroud, and Desautel; the
respondent, by Cayia and Heitman. During the conference each of
the 35 proposals contained in the 13 articles of the proposed contract
were discussed seriatim.
. Article I (a) was the recognition clause. Cayia stated that this
provision was required by law and there was "nothing to be done
about it." 7 I (b) contemplated the establishment of the "shop steward
system" in the respondent's plant. Cayia asked the union representa-
tives to explain what was meant by the "shop steward system" and
how it functioned. Hodge then described the system to Cayia, but
Cayia was not satisfied with Hodge's description and stated that he
desired to obtain more information concerning the system. Discus-
sion on the article was then postponed until later. I (c) providc.ci,
that the Union would designate various committees in the respond-
ent's plant to act as its "duly accredited representatives"; furnish the
respondent with a list of the representatives selected; and enjoy the
right to have "additional counsel". present during its negotiations with
the respondent. Cayia remarked that by meeting with the union rep-
resentatives, including Hodge, he was recognizing their right to have
"additional counsel" present at the bargaining conferences. He main-
however,. that the remainder of the provision was connected
with I (b) and, at his suggestion, discussion on the provision was
postponed until later. ' .
Article II (a) was a provision designed to protect the employees
against discrimination because of their union activities and II (b) a
provision to protect employees against "unjust" discharges. Cayia
7 Cayia testified that he told the union representatives that while he "had no official
notification from the Board as to Local 377 being certified " he "would so recognize
them" as he had received information from respondent ' s counsel "that the check had
been made ." However, the respondent was specific in its position ,• discussed infra, that
it at no time had agreed to any of the articles in the proposed contract.
INLAND LIME AND STONE COMPANY 765
asserted that the respondent was not discriminating against any of
its employees because of their union affiliation and activities and had
no intention of doing so, but -maintained that these articles were not a
proper subject matter for a proposed agreement because they were
covered by law, and "if an infraction occurred," there would be "two
sets of determinations of our [the respondent's] guilt, and two sets
of penalties." 8
Article III (a), (b), and (c) related to vacations. III (a) pro-
vided for 2 weeks' vacation for employees with 1 or more years' serv-
ice; III (b) prohibited employees from working for the respondent
during the terms of-their vacations; and III (c) limited the vacation
period to the months extending from June to September 15. Cayia
told the union representatives that the respondent had a vacation plan'.
providing for 1 week's vacation for employees with 5 or more years'
service which it had 'established in 1936, and that although the re-
spondent intended to continue this plan it was opposed to incorporat-
ing the plan in a formal-agreement because it desired to be at liberty
to decide when to grant vacations. He also stated that III (b) merely
represented the respondent's present practice under its vacation plan.
Hodge directed Cayia's attention to the fact that the respondent had
failed to grant vacations during 1938 but Cayia replied that this was
due to business conditions. Hodge then urged that the service require-
ments for vacations be changed from 5 to 3 or more years' service and
Cayia stated that Hodge "could modify it [the proposed agreement]
in any way he wished" and that the respondent "would be glad to con-
sider it." Cayia also stated during the discussion that he desired the
vacation period to extend from January 1 to December 31, and that he
would not agree to any other period. Article III (d) guaranteed 8
hours' work and pay to any employee who reported for work, when he
was not supposed to report, because the respondent had failed to notify
him not to report. Cayia stated that it was the respondent's present
practice to give any employee who reported for work under these cir-
cumstances 2 hours' work and pay, but that he was opposed to includ-
ing this practice in an agreement because the respondent desired to
"be free to, change that rule if it ever became necessary." III (e)
allowed laid-off employees a period of 5 days to report for work after
being notified to report by the respondent. Cayia asserted that the
respondent had never penalized a laid-off employee for reporting late
when he had a legitimate reason, and favored continuance of the re-
spondent's present practice of requiring laid-off employees to report
8At the hearing for oral argument counsel for the respondent explained that Cayia
was opposed to incorporating any of the Union's proposals already covered by law
"in a written undertaking of the respondent, for the reason that he [Cayia] and the
respondent would then be subjected to two standards of determining their guilt, two
tribunals in which to litigate it, and two separate and cumulative kinds of penalties."
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immediately after being notified, but was opposed .to incorporating
this practice in an agreement because the respondent desired to be "free
to change that rule if it ever became'..necessary." • Hodge then sug-
gested that the employees be allowed a:3- or 4-day period in:which:to
report but Cayia merely replied, "Well; you can change it to,anythhig
you see fit and we will give it further consideration."
Article IV established a formal grievance procedure in the respond-
ent's plant.. Cayia stated that he was satisfied with the respondent's
present grievance procedure.9 Hodge stated that. Cayia was satisfied
with the present practice because Cayia said "No to everything," and
then Hodge attempted to persuade Cayia to agree. to the proposal, but
was unsuccessful.
Article V (a) provided that all meetings of the Union's "shop com-
mittee" be held outside. of working hours. At Cayia's suggestion,
discussion on this article was postponed pending disposal of Article
I (b). Article" T (b) prohibited union activities on the respondent's
premises during working hours. Cayia declared that he could not
agree to this article because he would not permit the employees to
engage in union activities on the respondent's premises during working
hours or. at any other time.
Article VI concerned seniority and lay-offs. VI (a) provided that
seniority be determined from the date of last hiring. Cayia con-
tended that this merely represented the respondent's present practice.
VI (b) required that the respondent make an effort, when lay-offs
were necessary due to business conditions, to find jobs for employees
with the greatest seniority, "if, in the opinion of the shop committee
and the Superintendent," the employees were qualified to fill the avail-
able jobs.' Cayia objected to the shop committee participating in the
matter- and Hodge then stated that the union representatives were
willing to eliminate that part of the provision; whereupon Cayia
remarked that "they could,alter it if they wished" and the respondent
would give it further consideration. VI (c) provided that all the
employees be given a 40-hour workweek before any additional em-
ployees were hired by respondent. Cayia asserted that this provision
merely stated the respondent's present practice. VI (d) required (1)
that seniority be observed as provided in VI (d) when business con-
ditions warranted a decrease in personnel; (2) that no union em-
ployee with 6 months' seniority be laid off until the hours of work
were reduced to 32 hours per week; (3) that, when the force was
increased, the older employees in point of service be called back to
work before any new, employees were hired; and (4) that the shop
Cayia testified that the respondent had no formal grievance procedure, but that'when
any employee - had a grievance he was permitted to take the matter up personally or
through the Union with his foreman or with Cayla.
INLAND LIME AND STONE COMPANY 70
committee be notified in advance of .any increase or decrease in per
sonnel: Cayia, referring to the terms of (2) above, inquired if the'
Union was bargaining for all the. employees and Hodge replied that
it was and then agreed to eliminate the word "Union" from the pro=
vision. Cayia,then stated that he could not agree to any of (4) above
and Hodge then agreed to eliminate it; whereupon Cayia declared that
Hodge could modify the article if he desired and the respondent "would
consider it further." VI (e) placed the Union's shop committee mem-
bers and its steward at the top of the seniority list. The discussion
on this article ended in an impasse with Cayia refusing to agree to it
and Hodge insisting upon it. VI (f) removed employees from the
respondent's seniority list after they had been laid off 2 or more years.
The.discussion on this provision also ended in a deadlock with Cayia
holding out for the respondent's present practice of removing em-
ployees from its active employment list after they had been laid off
one year and Hodge, insisting that one year was not long enough.
VI (g) required the respondent to furnish the shop committee with
a list of all its employees. Cayia asserted-that he could not agree to
this provision, but Hodge insisted upon its inclusion in the agreement.
Thus the discussion on this provision also ended in a deadlock.
Article VII limited the workweek to 40 hours, consisting of 5 con-
secutive 8-hour days; and provided for time and one-half pay foi;
overtime and double-time pay for work on Sundays and certain holi-
days.. Cayia objected to restricting the workweek to, 5 consecutive
8-hour days so Hodge agreed to eliminate that portion of the article.
Cayia also maintained that the respondent could not pay double time
for work performed on Sundays and holidays, and Hodge then offered
to modify the proposal so that it only required time and one-half pay.
Cayia then told,Hodge that "it was all right for him" to modify the
proposal if he so desired, and assured him that the respondent "would
consider any changes." During the discussion on this proposal Cayia
also declared that since the workweek in respondent's plant was lim-
ited to 40 hours by law, he was opposed to'including such a provision
in an agreement because he did not feel that the respondent should
subject itself "to two determinations of" its "guilt." VII (b) pro-
vided that no employee be required to work- overtime against his will;
and that no employee be laid off to equalize time, and VII (c) . required
the respondent to post the hours of the shifts. Cayia maintained that
these two articles merely represented the 'respondent's present practice.
Article VIII provided that no junior employee be permitted to work
in place of any employee sent home for a reason other than sickness
or injury "except by permission of the committee." Cayia objected to
the inclusion of the last 6 words quoted above in the article and stated
that the other part of the article represented the respondent's present
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practice. Hodge then agreed to eliminate the 6 objectionable words
from the article and Cayia then remarked "Alter it in any way you
wish, and we will be glad to consider it further." VIII (b) prohibited
foremen from working on hourly paid employees' jobs. ' Cayia stated
that since this provision governed the actions of foremen he did not
-think it "should, properly come in a proposal."
Article. IX (a) granted the employees a 10 cents an hour general
wage increase. Cayia flatly rejected this and they then passed on to.
IX (b) which established Wednesday of each week as the regular pay
day, which Cayia also rejected.b0
Article X established a closed shop. Cayia declared that he could
not agree to this article because it was "un-American in principal."
Article XI provided that if any of the provisions in the agreement
were ever held invalid due to existing or future Federal or State legis-
lation, the remaining provisions of the agreement would not be affected
thereby. Cayia maintained that this article referred to an agreement
which had not yet been reached and,that any consideration of it.should
be deferred until an agreement was reached by the parties.
Article XII (a) and (b) suspended strikes and lock-outs pending
exhaustion of "all the grievance procedure outlined in this agreement."
Cayia contended that consideration of this provision should be held in
abeyance until Article IV was disposed of.
Article XIII (a) permitted reopening of wage negotiations at any
time after 30 days' written notice to either party. Cayia was opposed
to this article because he desired "to be able to negotiate wages at any
time." XIII (b) allowed the employees 10 minutes before quitting
time to put their tools away and "wash up." Cayia asserted that he
could not agree to this, but added that some of the employees, who
were already doing that, "might as well keep on doing that until some-
body said something about it." XIII (c) made the term of the con-
tract 1 year. Cayia asserted "that there was considerable to be said for
an indeterminate term, and it all depended on what form'the agreement
would finally-take and until such time as it was determined there -,A, , as
nothing to discuss in this section."
Hodge asked Cayia several times during the conference whether the
respondent would put, any agreement they reached in writing, but
Cayia was evasive and stated "that would depend upon what we agree
upon." '.
After 8 hours' discussion, the parties agreed to meet again on May 10
and continue their discussions. The meeting then adjourned. When
the conference ended the union representatives were under the,impres-
sion that the parties had reached an understanding on the proposals
10 The respondent 's practice was to pay its employees every 2 weeks.
INLAND LIME AND STONE COMPANY . 769
which merely embodied the respondent's present practices or were
already established by law, because Cayia had indicated during their
discussion of these proposals that he was willing to continue with the
respondent's present practices which were embodied in some of the
proposals, and had stated that he had no objections to the laws which
coincided with other proposals.
Shortly after the meeting, Hodge redictated and had retyped his
copy of the proposed agreement in which he incorporated the modifica-
tions and changes made in the proposals during the conference. In
some unexplained way, a copy of the revised proposed agreement was
placed on Cayia's desk. It was called to his attention about May 4.11
Hodge testified that an original and two copies of the revised draft.
were typed; that he gave one of the copies to Nels Halsey, a member
of the bargaining committee; that he later made an unsuccessful
attempt to secure its return from Halsey; and that no one had authority
to deliver a copy of the revised draft to Cayia.12
On May 1, after the bargaining conference, Cayia went to Chicago
where he conferred with Randall, the respondent's president. Among:
other things, Cayia told Randall what had transpired at the May 1
meeting, and they also discussed some of the Union's proposals. At
the hearing, Cayia could not remember the details of their discussion,.
but asserted that Randall did not take a stand on any of the proposals,.
but told him "in a general way to be fair and honest in the considera-
tion of all these sections (in the proposed agreement) and to do a good
job of it."
On May 8-the respondent announced on its bulletin boards that its
vacation plan, providing for 1 week's vacation for employees with. 5
years' service, would be in effect for the year 1939. A similar plan
had been in effect during the years 1936 and 1937, but not during the.
year 1938. The Union's original proposals submitted to the respond-
ent on April 10, 1939; had included a provision for 2 weeks' vacations.
for employees with 1 or more years' service. On May 1 the Union had
modified this proposal to provide for 1 week's vacation for employees
with 3 or more years' service. However, despite the pendency of nego-
tiations on these proposals, which were scheduled to be resumed on
n During his testimony Cayia referred to the revised draft of the Union 's proposals
as a "new" proposed contract . The two drafts were identical except that the revised
draft contained some of the modifications made in the proposals by the Union during the
May 1 conference.
"On January 15, 1940, the respondent filed a motion with the Board requesting that
this proceeding be reopened for the purpose of taking the testimony of Nels Halsey.
The respondent seeks to prove , through Halsey , that Halsey never had a copy of the
revised draft and that Hodge at no time asked him to return 'such a copy . Inasmuch
as there is no showing as to why the respondent did not call Halsey, who is one of its
employees , as a witness during the hearing , and since we do not deem the alleged facts
which the respondent seeks to prove to be sufficiently material to the issues in this case
to warrant reopening the record , the respondent 's motion was hereinabove denied.
770 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
May 10, the. respondent announced its vacation plan for' 1939 without
either notifying the Union or consulting with it.
On May 10 the parties met again. Hodge opened the meeting by
suggesting that their discussion be confined to the proposals upon
which the parties had not been able to reach an agreement at the pre-
vious meeting. Cayia then declared that he had not agreed to any of
the Union's proposals at the previous conference. Hodge called
Cayia's attention to the various proposals to which he thought Cayia
had agreed, but Cayia maintained that he had not agreed to any of
them.. Hodge then began to review the proposals, starting with the
'first one, and asking Cayia if he would agree to each one.13 During
the ensuing discussion, Cayia rejected the first 11 of the 13 articles in
the proposed agreement on one of the following grounds : (1) that
they were unacceptable to the respondent; (2) that they coincided
with the respondent's present practice which the respondent desired
to be at'liberty to change at any time; or (3) that the. provisions were
already embodied in applicable laws and the respondent was opposed
to their incorporation in a bargaining contract because it did not
desire to subject itself "to two determinations of" its guilt in case of an
infraction or to "two penalties."
After Cayia had rejected the first 11 articles in this manner, Hodge
asked Cayia whether, he was willing to submit any counterproposals
and Cayia replied that he was not. Hodge then stated that it was
apparently useless to continue the discussions that day and requested
an appointment for the next day. Cayia granted the request. and on,
the following morning the parties met again. Hodge asked Cayia at
the beginning of the meeting how he felt that day about the Union's.
proposals and Cayia replied that he felt "just the same as he did yester-
day." Hodge then inquired if Cayia had any counterproposals to
offer and Cayia answered that he did not. Hodge then stated "that
being the case, I don't think that we can do any business" and the
meeting ended.
On May 22 the Union filed the original charge with the Regional
Director. On June 9 the union representatives, with O. S. Hoebreckx,
a Board Field Examiner assigned to investigate the charge; met with
Cayia and Heitman. Hoebreckx suggested that they go over the
Union's proposals, but Cayia refused to do this. He told Hoebreckx
that he had gone over the.proposals with the union representatives a
number of times and saw no reason to go over them again. Hoebreckx
asked Cayia if he was willing to submit any counterproposals and
Cayia replied that he was not. Cayia also stated that the Union and
' Hodge referred to the original draft of , the proposed contract during the conference
while Cayia referred to the revised draft ; however; neither of them knew that the other:
was referring to a different draft.
. INLAND LIME AND STONE COMPANY 771
not the respondent was making the ",demands"; and that if the Union
desired to submit a new set of proposals he was ready to receive and
consider them. This was the last conference which the parties held.
Upon the facts hereinabove reviewed, the issue to be determined is
whether or not the respondent has discharged its obligation to bargain
collectively as required by the Act. The statutory purpose and scope
of the duty has been carefully delineated by both the Board and the
courts in a series of decisions.14 These decisions leave 'no room for
doubt that the minimal and basic requirement for satisfaction of the
obligation imposed by the statute is, in the language of Judge Sibley
in the Globe Cotton Mills case, that the parties "enter into discussion
with an open and fair mind, and a sincere purpose to find a basis of
agreement touching wages and hours and conditions of labor, and if
found to embody it in a contract as specific as possible, which shall
stand as a mutual guarantee of conduct, and -as a guide for the adjust-
ment of grievances." 15 We pass to a consideration of the respondent's
conduct in relation to the statutory requirements.
The respondent's essential position in its dealings with' the Union
is revealed in its attitude toward those proposals which were in
accord with its present policy and which were not inherently objec-
tionable to it.1e As we have hereinabove found, the respondent
rejected all the proposals submitted by the Union, which corre-
sponded with its present practices, not because it objected to the
proposals themselves but on the stated ground that it desired to be
free to abandon or alter any of the conditions of work involved by
unilateral action at any time it deemed such action advisable. The
maintenance of an absolute right of unilateral action necessarily pre-
cludes the making of any agreement, oral or written, because an
agreement by its nature limits in some degree the parties' scope of
unilateral action in contravention of the agreed terms. The respond-
ent's insistence upon the preservation of complete freedom of action
even where a basis for an accord existed establishes, and we find, that
it participated in the discussions with the Union with a fixed inten-
tion not to agree to, any proposal irrespective of whether or not the
14 See Matter of. Westinghouse Electric & Manufacturing Company and its subsidiaries,
Westinghouse X-Ray Company, Inc. and The Bryan t Electric Company and United
Electrical, Radio and Machine - Workers of America and its Locals Nos. 601, 202, 1207, 107,
111, 130, 1105, 1412. and 209 , 22 N. L. R. B. 147, and the cases therein cited.
1 Globe Cotton Mills v. National Labor Relations Board , 103 F. (2d) 91 (C. C. A. 5)
modifying and enforcing Matter of Globe Cotton Mills and Textile Workers Organizing
Committee, 6 N. L. R. B. 461. See National Labor Relations Board v. Highland Park
Mfg. Co., 110 F. -( 2d) 632 (C. C. A. 4) enf'g Matter of Highland Park Manufacturing Co.
and Textile Workers Organizing Committee, 12 N. L. R. B. 1238 , where the Court quoted
with approval the language of Judge Sibley in the Globe Cotton Mills case.
1a In view of our findings „ we do not deem it necessary to consider in further detail
the position of the parties with respect to those provisions of the proposed contract to
which the respondent offered objections on their merits.
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proposed terms were otherwise acceptable to it. ; It seems to us self-
evident that such a fixed intention eliminated the possibility of col-
lective bargaining in good faith looking toward the consummation
of a collective agreement, however lengthy the discussion of proposed
terms, and contravened the statute .17
The respondent's failure to bargain within the meaning of the
Act is further established by its flat refusal to offer any counter-
proposals, while it uniformly rejected each of the Union's proposals,
which it insisted were "demands" merely requiring consideration; 18
and by its action in placing its vacation plan in effect without ref-
erence to the Union's position at a time when the Union was seeking
to bargain collectively with it on the subject and thus undermining
the collective bargaining procedure.19
Moreover, the respondent specifically refused to agree to recognize
the Union as the exclusive representative of its employees in an
appropriate unit although the Union had 'established its status as
majority representative. In the conference of May 1 and thereafter
the respondent, while asserting that it recognized the Union, rejected
Article 1 (a) of the proposed contract-the recognition clause-on
the ground that recognition was required by law and hence "there
was nothing to be done about -it." This position is untenable. The
recognition required by the law means express recognition of the
particular representative selected by a majority of the employees in
an appropriate bargaining unit, and the respondent's refusal to agree
expressly upon request to recognize the Union as the representative
iv See Matter of Highland Park Manufacturing Co. and Textile Workers Organizing
Committee , 12 N. L. R. B . 1238, enf ' d in National Labor Relations Board v. Highland
Park Mfg . Co., 110 F. ( 2d) 632 (C. C. A. 4), where the Court said: . . rhe)
requirement to bargain collectively is not satisfied by mere discussion of grievances
with employees ' representatives . It contemplates the making of agreements between
employer and employee which will serve as a working basis for the carrying on of the
relationship . The act, it is true , does not require that the parties agree ; but it does
require that they negotiate in good faith with the view of reaching an agreement if
possible ; and mere discussion with the representatives of employees , with a fixed resolve
on the part of the employer not to enter into any agreement with them, even as to mat-
ters as to which there is no disagreement , does not satisfy its provisions . . Also
see National Labor Relations Board v . Griswold Mfg . Co. 106 F. ( 2d) 713 (C. C. A. 3),
enf'g Matter of Griswold Manufacturing Company and Amalgamated Association of Iron,.
Steel and Tin Workers of North America Lodge No. 1197 , 6 N. L. R. B. 298.
^s See Globe Cotton Mills v. National Labor Relations Board 103 F. (2d) 91 (C. C. A. 5).
is we have previously held that under certain circumstances an employer's unilateral
action with respect to matters which are currently the subject of collective bargaining
without reference to pending proposals of his employees ' designated representative cover-
ing those matters constitutes a refusal to bargain within the meaning of the Act. See
Matter of Whittier Mills Company et al ., and Textile Workers Organizing Committee,
15 N, L. R. B. 457, enf 'd in National Labor Relations Board v. Whittier Mills Company
et at., 111 F. (2d) 474 (C. C. A. 5 ) ; Matter of John J. Oughton , Charles T. Oughton,
Berthram E. Oughton, and Robert B. Oughton , Individuals and copartners trading as
The Windsor Manufacturing Company and Textile Workers Organizing Committee
(C. I. 0.) 20 N. L. R. B. 301 ; Matter of Wilson and Company and United Packinghouse
Workers L. I. U.-51 P. W. 0. C. of C. I. 0., 19 N. L. R. B. 990, and cases cited in footnote 11
thereof.
INLAND LIME AND STONE COMPANY 773
selected to bargain with it constituted a denial of the recognition
required by the Act.20
Further the respondent's refusal to agree to recognize the Union
is but another manifestation of its unwillingness, reflected in its entire
conduct, to accord. the Union, as a matter of right, the status and
dignity of an equal contracting party. Its attitude is typified in its
often reiterated statement that the. Union was free. to alter its pro-
posals, if it wished, and its assurance that the respondent would con-
sider such modified proposals. In short, throughout the discussions
the respondent treated the Union not as an equal contracting party
but as a suppliant whose "demands" it would receive, consider, dis-
cuss, and grant or reject without making any binding commitment
even as to its present practices.
It is true that the respondent met with the Union as the exclusive
collective bargaining representative of its employees in an appropri-
ate unit; that it was willing to meet with- the Union whenever the
latter wished, to receive such proposals as the Union cared to submit,
to discuss them at length and to state its views on' each proposal.
However, irrespective of whether the respondents misconceived the
nature of its full obligation under the Act or intentionally sought to
avoid it, it cannot be said upon the basis of this record that. the
respondent engaged in its discussions with the Union "with an open
and fair mind and a sincere purpose to find a basis of agreement
touching wages, hours and conditions of labor." On the contrary,
we are satisfied from all the .evidence, and we find, that the respond-
ent participated in the discussions with the Union with its "mind
hermetically sealed against even the thought of entering into an
agreement with the union" and thus offered "shadow for substance"
in the discharge of its duties under the Act.21
20 The language of the Court in the Griswold Mfg. Co. case supra in discussing the
issue of recognition is applicable here. The Court said :
Respondent 's reply brief, in contending that the respondent granted union
recognition in fact, asserts , in italics :
"There is no ritual or formula required to constitute union recognition."
We are heartily in accord with this statement, but not with the respondent's
application thereof in the instant case. The truth'is that the respondent professes
to observe the ritual while avoiding adherence .to the principle. It pretends to accord
union recognition by its assertions , but withholds it. in fact-as witness, inter
alia, its absolute and unqualified refusal to permit the name of Lodge 1197 to appear
in its written agreement.
There is no merit in any contention that a willingness to bargain collectively,
accompanied by a refusal of recognition , of the appropriate bargaining unit as
such , or as a representative of its union , meets the requirements of the Act. Such
an attitude directly violates the spirit and tenor of the statute. ^In social legislation
of this sort it is perhaps more important than in any other field of legislation that
no mere lip service be permitted as a substitute for an honest and sincere compliance
with, the provisions of the law.
See National Labor Relations Board v . Griswold Mfg. Co., 106 F. (2d) 713 (C. C. A.
3), enf 'g Matter of The Griswold Manufacturing Company and Amalgamated Association
of Iron, Steel and Tin Workers of. North America, Lodge No. 1197, 6 N. L. R. B. 298.
283035-42-vol. 24 50
774 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
The respondent Contends in its brief'that at the time of the last
conference an impasse had been reached in the collective bargaining
negotiations, and that the Union and not,the, respondent was. respon-
sible for discontinuing the negotiations. . Tlis contention is without
merit. We have found that the Union terminated the discussions
between the parties on May 11. However, upon the basis of their
past conferences the Union was reasonable in concluding, as we have
concluded, that the respondent had no intention of agreeing to any
proposal irrespective of its acceptability on its merits and was not
bargaining in good, faith. We hold that in the absence of such good
faith on the respondent's part the Union was under no duty to pursue
further the procedure of submission and discussion of proposals.
We find that the collective bargaining conferences ended not because
of a bona fide impasse in negotiations but because the respondent
refused to bargain in good faith with the Union.
We find that the respondent on May 1, 1939, and at all times there-
after 22 has refused to bargain collectively with the Union as the
exclusive representative of its employees in an appropriate' unit and
that it has thereby interfered with, restrained, and coerced its
employees in the. exercise of rights 'guaranteed in Section 7 of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the
respondent described in Section I, above, have a close, intimate, and
substantial relation to trade, traffic,.and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having, found that the respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the
Act. ' We have found that the respondent refused to bargain collec-
tively with the Union. We shall, therefore, order the respondent
upon request to bargain collectively in good faith with the Union in
respect to rates of pay, wages, hours of employment, and other condi-
22 The complaint alleged and the Trial Examiner found that the refusal to bargain
occurred on May 10, 1939 , and at all times thereafter . However, the complaint was
amended to conform the pleadings to the proof which eliminated any variance between
the pleadings and'our finding . But even in the absence of such motion there would be no
material variance . See The H. M . Ritzwoller Company v. National Labor Relations Board,
decided May 8, 1940, (C: C. A. 7) enfg as mod. Matter of The H. M. Ritzwoller Company
and Coopers ' International Union of North America , Local No. 28 , 15 N. L. R. B. 15.
INLAND LIME AND STONE COMPANY 775
tions of employment and, if an understanding is reached on any such
:matters, to embody said understanding in a signed agreement, if
:requested to do so by the Union.
Upon the basis. of' the foregoing findings of fact and the entire
:record in the case, the Board makes. the following:
CONCLUSIONS OF LAW
1. Local #377 of the International Union of Mine, Mill & Smelter
Workers (C. I. 0.) is a labor organization, within the meaning of
;Section 2 (5) of the Act.
2. The production and maintenance employees of the respondent
,excluding, supervisory and clerical employees at all times material
herein constituted and they now constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
3. Local #377 of the International Union of Mine, Mill & Smelter
Workers (C. I. 0.) was on April 19, 1939, and at all times thereafter
has been, the exclusive representative of all the employees in such
unit for the purposes of collective bargaining, within the meaning
of Section 9 (a) of the Act.
4. By refusing and continuing to refuse to bargain collectively with
Local #377 of the International Union of Mine, Mill & Smelter
Workers (C. I. 0.) as the exclusive representative of the employees
in the above-stated unit, the respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8 (5) of
the Act.
5. By refusing and continuing to refuse to bargain. collectively with
the Union as aforesaid and thereby interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act, the respondent has engaged in and is engaging
in unfair labor practices,within the meaning of Section 8 (1) of the
Act.
6. The aforesaid unfair :labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 '(6) and (7) of
the Act.
ORDER
On the basis of the foregoing findings of fact and conclusions of
law and pursuant to Section 10 (c) of the National Labor Relations
Act the National Labor Relations Board hereby orders that the
respondent, Inland Lime and Stone Company, and its officers, agents,
successors, and assigns shall:
1. -.Cease and- desist from :
(a). Refusing to bargain collectively with Local ' #377 of the
International Union of Mine, Mill & Smelter Workers (C. I. O. )
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as the exclusive representative of the respondent 's production and
maintenance ' employees , exclusive qf' supervisory and clerical
employees ;
_(b) In any other manner interfering with, restraining , or coercing
their employees in the exercise of the right to self-organization to
form, join, or assist labor organizations , to bargain collectively
through representatives of their - own choosing , and to engage in
concerted activities for the purposes of collective bargaining or other
mutual aid or protection , as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request bargain collectively with Local #377 of the
International Union of Mine, Mill,& Smelter Workers (C. I. 0.) as
the exclusive representative of the production and maintenance em-
ployees in the respondent 's plant, exclusive . of supervisory and cleri-
cal employees , with respect to rates of pay, hours , of employment, and
other conditions of employment , and if an understanding is reached
on any such matters, embody said understanding in a signed agree-
ment, if requested to do so by said Union;
(b) Post immediately in conspicuous places within its plant, and
maintain for a period of at least sixty (60) consecutive clays from
the date of posting, notices to its employees stating: (1) that the
respondent will not engage in the conduct from which it is ordered
to cease and desist in paragraphs 1 (a) and (b), of this Order, and
(2) that the respondent will bargain collectively with Local #377 of
the International Union of Mine, Mill & Smelter Workers ( C. I. 0.)
as the representative of its production and maintenance employees
exclusive of clerical and supervisory employees, with respect to rates
of pay, hours of employment, and other conditions of employment
and, if any understanding is reached on any such matters, embody
said understanding , upon request , in a signed agreement;
. (c) Notify the Regional Director of the Twelfth Region in writ-
ing within ten (10) days from the date of this Order . what steps the
respondent has taken to comply herewith.