Insulating Fabricators, Inc.

National Labor Relations Board - Board Decisions

Nov 4, 1963

144 N.L.R.B. 1325 (N.L.R.B. 1963)

INSULATING FABRICATORS, INC., SOUTHERN DIVISION 1325
the personnel manager was included in the unit. However, Carpenter
was appointed personnel manager in conformity with the Employer's
plan to enlarge the scope of this position so that it would eventually in-
clude industrial relations duties. The record indicates that Carpenter
has participated in management's discussions concerning the Em-
ployer's contract proposals for future negotiations with the Union
covering the office clerical unit, and will, in the future, be part of the
Employer's negotiating team. Carpenter has also dealt with such
matters as the instant motion and an unrelated pending arbitration
proceeding. Finally, the industrial relations director of the parent
Company herein, American Hardware Corporation, testified uncon-
trovertedly that the Employer's intent is to broaden the ambit of the
personnel manager's position so that it will subsume (within 12 to 20
months) all phases of labor relations pertaining to the unit represented
by the Union. In view of the foregoing, we find that the personnel
manager formulates, determines, and effectuates management's labor
relations policies with respect to the office clerical unit which the Union
represents 4
M. Lynch, the newly designated secretary to the personnel manager,
acts as personal secretary to Carpenter, handles all of his mail, takes
his dictation, has access to all of the files in the personnel office, and gen-
erally assists him in performing his various responsibilities. We find
that the secretary to the personnel manager is a confidential employee
and we hereby exclude her from the office clerical unit 5
[The Board ordered the Certification of Representative, heretofore
issued in Case No. 1-RC-322, clarified by specifically excluding from
the unit therein found appropriate, the classification of secretary to
the personnel manager.]
° It is also clear from the record , and the Union concedes, that Carpenter's present duties
include labor relations functions with reference to a production and maintenance unit in
the Employer's factory, which unit is represented by another labor organization.
5 Vulcanazed Rubber and Plastics Company, Inc ., 129 NLRB 1256, 1258; The B. F.
Goodrich Company, 115 NLRB 722, 724, 725.
Insulating Fabricators , Inc., Southern Division and International
Union of Electrical, Radio and Machine Workers , AFL-CIO.
Case No. 11-CA-2049. November 4, 1963
DECISION AND ORDER
On May 1, 1963, Trial Examiner Arthur E. Reyman issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirm-
144 NLRB No. 125.
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ative action, as set forth in the attached Intermediate Report. There-
after, the Respondent and the General Counsel filed exceptions to the
Intermediate Report with supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Fanning].
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner to the extent consistent with this Deci-
sion and Order.'
We agree with the Trial Examiner's conclusion that the Respond-
ent failed to meet with the Union at reasonable times and confer in
good faith in respect to wages, hours, and other terms and conditions
of employment in violation of Section 8 (a) (5) and (1) of the Act. In
adopting this conclusion, we rely upon the totality of the Respondent's
conduct both at the bargaining table and away from it, and particu-
larly upon the following matters :
(a) In disregard of its bargaining obligation under Section 8(d)
"to meet at reasonable times and confer in good faith" with the repre-
sentative of its employees, the Respondent in arranging meetings with
the Union has failed to display the degree of diligence that the statute
requires, and has failed to make itself available for negotiations at
reasonable times.
Following the Union's request for bargaining on April 27, and until
the breakdown of negotiations on October 18, 1962, a period of about
6 months, only six bargaining meetings were held, each lasting about 3
hours. The long delays between the meetings were for the most part
attributable to the unavailability or unwillingness of the Respond-
ent's chief negotiator and labor relations attorney, Kirle, to meet at
earlier dates requested by the Union. Kirle's offices are in Boston,
Massachusetts. To attend the bargaining meetings with the Union,
held at Spartanburg, South Carolina, where the Respondent's plant
is located, Kirle had to travel by air a distance of about 800 miles.
This required making reservations for air travel both to and from
Spartanburg well in advance. When in the summer of 1962 Eastern
Air Lines' employees went on strike, the securing of reservations be-
came more difficult and his attendance at the meetings dependent on
flight confirmations. Kirle testified that at the time he represented
"well over twenty companies in their labor relations" and was "con-
1 The Respondent's request for oral argument is hereby denied as, in our opinion, the
record, exceptions , and briefs adequately present the positions of the parties
INSULATING FABRICATORS, INC., SOUTHERN DIVISION 1327
tinuously engaged in negotiations, Board matters, [and] Circuit court
[appearances] involving labor matter." Because of his preoccupation
with his extensive legal practice and the dependence on advance reser-
vations for air travel, Kirle was greatly handicapped in arranging
bargaining meetings. Whenever, at the end of one meeting, Union
Representative Denton asked Kirle to continue the meeting the next
morning, or to fix a definite date for the next meeting, Kirle would
say "No," that he had already secured a reservation to fly back to
Boston, or else that he would not know what his office schedule was
until he got back to Boston. On a number of occasions, Kirle asked
Denton to write him in Boston to arrange for the next meeting.
In summing up the evidence on this point, the Trial Examiner con-
cluded that, except for the first meeting, which the Union's representa-
tives were unable to attend for good reason, "Denton was willing, at
all times, to meet to seek a contract and actually sought to have the
Respondent meet on more frequent occasions." On the other hand,
the Trial Examiner was not impressed by Kirle's explanations for
the delays in arranging meetings-that he was "a very busy man,"
and had "difficulty in arranging appointments because he represented
some 20 other clients"-although he observed that the union repre-
sentative should have been more "insistent than he was" that meetings
be held at reasonable times and without "each date being set for the
convenience of . . . Kirle."
The Respondent in its exceptions alleges that it was misled by the
Trial Examiner into believing that the question of the delays in
scheduling bargaining meetings was not an issue. The Respondent
urges that but for that belief it would have adduced evidence to prove
that Denton, the union representative, did not protest the timing of
the meetings; that Kirle had difficulty in arranging transportation to
and from Boston and from the airport in Spartanburg; that Plant
Manager Moore was on vacation from July 19 to August 16; and that
Kirle, because of his personal familiarity with other operations of
the Respondent, could not delegate his bargaining responsibility to
some other attorney.
We are not persuaded that the Respondent was actually misled by
the Trial Examiner, since the record shows the Respondent did litigate
at some length much of what it now claims it would have proved. In
any event, it is quite clear that the Respondent has not been prejudiced.
For even accepting as we do for purposes of this decision-all of the
proffered facts as outlined above, it does not alter our conclusion that
the Respondent was remiss in carrying out its statutory obligation,
imposed by Section 8(d), "to meet at reasonable times and confer in
good faith"-and this for the reasons that follow :
As indicated above, there were only six meetings in the 6-month pe-
riod following the Union's certification. The meetings were of short
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duration, each lasting about 3 hours. Only one meeting, that of
September 6, was continued over until the following day. Except for
that one occasion, it is undisputed that Kirle uniformly rejected Den-
ton's request for extension of the meetings or for their resumption the
next morning, stating as his reason that he had to return to Boston.
Nor would Kirle then agree to setting a date for the next meeting.
As noted, the Respondent would now excuse its conduct in that respect
on the ground that Denton did not affirmatively "protest" the delays,
for which, as appears, Kirle alone was responsible. But, unlike the
Trial Examiner, the record leaves us in no doubt that Denton made
reasonable efforts to expedite the course of the negotiations. The fact
that Denton ultimately agreed to Kirle's request for postponements is
of no crucial significance in itself. It takes two to make a meeting, and
short of breaking off negotiations entirely, there was nothing else Den-
ton could do but agree. Nor do we regard it as particularly significant
that Denton lodged no vigorous protest. A demand for a meeting does
not lapse merely because it is not satisfied; it does not cease to be a
demand because it is not persistently and unpleasantly reiterated.
Moreover, granting that Kirle had transportation problems, it up-
pears to us that if he were genuinely interested in facilitating the con-
summation of an agreement he would have arranged his affairs so that
he could have remained in Spartanburg for periods long enough to al-
low for meaningful bargaining, instead of shuttling back sand forth
800 miles during an airline strike for 3-hour meetings, and these at
infrequent intervals.2 Nor do we consider it an adequate excuse that
Kirle was busy with other matters and in no position to delegate his
bargaining functions to some other attorney. It was incumbent upon
the Respondent, not Kirle, to provide a representative who could con-
duct negotiations with the degree of diligence expected and required
of it' by the statute. What we stated in "M" System, Inc., Mobile Home
Division Mid-States Corporation, 129 NLRB 527, 549, applies equally
here, to wit:
The record here quite clearly supports a finding that the Re-
spondent, in arranging meetings with the Union[,] failed to
display the degree of diligence that proper performance of its
bargaining obligations required. This is so whether or not the
delays were inspired by a deliberate scheme to engage in dilatory
tactics. One may sympathize with the problems of the Respond-
ent's negotiator in fitting the negotiating meetings into the sched-
ule of his busy law practice, but this provides the Respondent
with no legal excuse for the consequent inordinately long delays
tending to impair employee statutory rights. Labor relations are
s As for the asserted absence on vacation of the plant manager , we note that this
accounts at most for only 1 month of delay.
INSULATING FABRICATORS, INC., SOUTHERN DIVISION 1329
urgent matters too. If [the] other activities [of Respondent's
attorney] made it impossible for him to devote adequate time
to reasonably prompt and continuous negotiations, it was the Re-
spondent's obligation to furnish a representative who could. The
duty to bargain in good faith includes the duty to be available
for negotiations at reasonable times,as the statute requires. That
duty is not discharged by turning over the conduct of negotiations
to one whose other activities make him not so available.3
(b) The Respondent insisted throughout the bargaining negotia-
tions that any contract the parties might agree upon would have to run
only to the end of the certification year.
At the August 16 meeting, Union Representative Denton asked for n
2-year contract and then for a 1-year contract, beginning from the
date of the execution of any agreement entered into by the parties.
Kirle refused, stating that he would not agree to any termination date
other than the end of the certification year. Kirle adhered to that
position throughout the remaining bargaining sessions. At the Octo-
ber 18 and final meeting, arranged by the State conciliator, the dura-
tion of the contract remained one of the major issues on which the
parties were in disagreement. Kirle testified that he insisted that the
contract term coincide with the end of the certification year because the
Respondent had a good-faith doubt of the Union's majority and in-
tended at the end of the certification year to raise the question before
the Board. Questioned concerning the grounds for such belief, Kirle
testified that "it was general knowledge in the plant that the Union
had only 2 or 3 members." 4
While the expiration date of the contract, like its substantive pro-
visions, is a bargainable matter,-' a contract terminable at the will of a
party, or a contract for less than a year to expire at the end of the
certification year, is normally not one that will give full force and
6 See also Exchange Parts Company, 139 NLRB 710; J. If. Rutter-Rem Manufacturing
Company, Inc ., 86 NLRB 470, 508.
Kirle also testified that Denton told him that , although all the employees in the unit
were invited to see the contract proposals, only one or two had done so before they were
submitted to the Company . Denton denied the statement attributed to him by Kirle.
Assuming , however, that he made that statement , it does not necessarily indicate that the
Union lost its majority status. It could show either reliance on the Union ' s representative,
or lack of interest on the part of employees in the Union 's affairs. The record further
shows that Denton admitted at the hearing that some time after the services of the State
conciliator were invoked , he had a talk with the State conciliator and admitted to him
that the Union had then only three members. Kirle did not testify that Denton's ad-
mission to the conciliator was one of the reasons for the Respondent 's doubt of the
Union's continued majority. As there is no showing that this admission was ever com-
municated to the Respondent before the breakdown of the negotiations on October 18,
1962, and that the Respondent relied thereon in adhering to its position on the termination
date, we do not attach any significance to this testimony insofar as the "good -faith doubt"
issue in this case is concerned.
6 The Hinde ct Dauche Paper Company, 104 NLRB 847 ; Lloyd A. Fry Roofing Company,
123 NLRB 647.
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effect to the Board's certification. Consequently, the Board views
insistence upon such a contract without good reason appearing there-
for as evidencing a lack of good-faith bargaining.'
Here, the Respondent gave as its only reason its claimed doubt of
the Union's continuing majority; but, except for its conclusionary as-
sertion of "general knowledge" in the plant, offered no evidentiary
support for the reason given. In the Font Milling Company case,' the
Board found the employer's reliance on reports of its supervisors con-
cerning a marked decrease of employees wearing buttons, and the
statements of its employees that they had "forgotten the union ac-
tivity," insufficient to furnish a basis for a "good-faith doubt" of the
union's majority status. Accordingly, the Board rejected this defense
in an 8 (a) (5) case involving unilateral wage increases. The Board
said :
And the basis it now argues for having ignored the Union's
representative for purposes of the wage increase (although not
for purposes of bargaining in other respects) is no more substan-
tial than the hearsay information given its supervisors by some
of its employees. It would strain credulity to believe that these
statements, amounting apparently to no more than mere opinion
voiced by an undisclosed number of employees, could constitute
a basis sufficient to persuade the Respondent to bypass the Union
in September, when it decided to give the wage increase.
The asserted "good-faith doubt" of the Respondent in this case rests
on no firmer footing.
The instant case is distinguishable from the cases in which insistence
on a contract term limited to the expiration of the certification year
was found to have been based upon a well-founded belief that the union
no longer represented a majority of the employees involved. In the
Hinde & Douche case the employer was notified by more than 50 per-
cent of its employees that they no longer desired union representation.
In the Fry Roofing case, the employer's "well-founded doubt" was
found to have been based on u decertification petition supported by a
majority of its employees. No 'such grounds for "good-faith doubt"
have been shown to exist here. Rather, the Respondent's "doubt" as
to the Union's representative status rested purely on rumor or con-
jecture. We find in the circumstances of this case and particularly
in the light of the Respondent's dilatoriness in 'arranging meetings
with the Union that the Respondent's insistence on a contract term
ending with the expiration of the certification year is but another
indication of the Respondent's disregard of its good-faith bargaining
obligation.
9 L G. Everist, Inc., 103 NLRB 308, 330.
7 Fant Milling Company, 117 NLRB 1277 , 1280, enfd . 360 U.S. 301.
INSULATING FABRICATORS, INC., SOUTHERN DIVISION 1331
(c) The record establishes that on June 11, August 16, and Sep-
tember 15, 1962, the Respondent granted wage increases to 10 differ-
ent employees out of 12 in the unit. Five of them were classified as
merit increases, while the remaining seven were justified as "upgrad-
ing" or "reclassification" increases.8 Union Representative Denton
testified that on August 16 the Respondent's representatives pre-
sented to him the names of five employees who under the Company's
review system were entitled to merit increases and announced that they
were putting them in effect retroactively to August 13, the beginning
of the payroll period. Denton accepted this announcement as a fait
accompli and made no comment.'
It is not disputed that these merit increases were not automatic.'°
The law is clear that individual merit increases, no less than general
wage increases, must be negotiated with the bargaining representa-
tive ("M" System, Inc., Mobile Home Division Mid-States Corpora-
tion, 129 NLRB 527, 552, and cases there cited). It is no defense to
the Respondent here that it had an earlier established practice to
grant such increases. As the Respondent had no formulated standards
of automatic or predictable application, it was not relieved of its duty
to bargain with the Union as to the individual increases to be granted,
or at least as to the applicable procedure and criteria for determining
them ("M" System, Inc., Mobile Home Division Mid-States Corpora-
tion, supra, at 553; N.L.R.B. v. Benne Katz, etc., d/b/a Williamsburg
s The Respondent 's witnesses testified that at the June 7 meeting the Company gave
notice to the Union of its intention to upgrade employees Johnson and Defoy Blackwell
on June 11, subject to reslotting of Blackwell on September 15 They also testified that
at the August 16 meeting they notified the Union that , in accordance with the Company's
policy on job evaluation and upgrading , employees Miller, Sprouse , and Ola Blackwell were
eligible for upgrading as of August 13, and that Defoy Blackwell was scheduled to be
upgraded on September 15. According to the Respondent ' s witnesses , Denton interposed
no objection to this upgrading . Denton admitted that the Company's program of up-
grading and reclassification was explained to him at the bargaining sessions He denied,
however, that the names of the employees who were to be upgraded or reclassified were
given to him or that he had agreed to such upgrading
6 On cross-examination Denton reiterated his testimony that he was told at the August 16
meeting that the company representatives "were putting [merit increases ] into effect." He
specifically denied Kirle' s version of the announcement that what he had been told was
that "the company . . . would like to put certain increases into effect, if the union had
no objections " Questioned further by the Trial Examiner , Denton confirmed that "he
thought, that it would be no use to protest because he had been told that the increases
had been put in effect." The Trial Examiner credited Denton's testimony and found that
"Denton had taken as a fait accompli the announcement by Kirle . .. that the increases
were fully decided upon and that the Company had or would put them into effect."
"The record shows that while these merit increases were granted pursuant to the
Company' s semiannual review, they were in no sense automatic, but rather based in large
measure on discretionary considerations . when Denton at the August 16 meeting in-
quired if the merit increases were automatic, Company Representative Kirle informed
him that they were not, that they were based on merit. Consistent with this the Company's
counterproposals provided that the performance of all employees "who are not receiving
the maximum rate for their occupation shall be reviewed in accordance with past practice
of the Company. As a result of such review, employees may receive increases at the sole
discretion of the Company on the basis of merit "
727-083-64-vol. 144-85
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Steel Products Co., 369 U.S. 736). But here the Respondent did no
more than announce the results of its decision.
As stated above, Denton accepted the Respondent's announcement
as a fait accompli and made no comment. Denton testified that 'he
neither accepted the merit increases nor rejected them. He said noth-
ing because "it would not [have done] any good." Although Kirle
testified that Denton did not object to the announced increases, Kirle
also admitted that Denton did not say that he agreed to them. The
Respondent contends that it was justified in construing Denton's
silence and failure to object to the announced increases as acquiescence
in the Company's decision. We do not agree. We find- that to all
intents and purposes, the Company's announcement amounted to a
statement that the increases had been fully and finally decided upon
and would be put in effect. Thus, Denton could reasonably assume,
as he did, that it would be futile for him to abject. While a union
may waive its right to bargain over certain matters, such waiver must
be clear and unequivocal. It is not one lightly to be inferred." We
find in the circumstances here present no such waiver could reasonably
have been inferred by the Respondent from Denton's mere failure to
respond to the announcement of merit increases.12 There had been
an announcement of merit increases, but no negotiations. There was
no agreement on minimum and, maximum rates of pay within the
grades and job classifications as a prerequisite for merit increases. Nor
had the parties agreed on. the procedure or method for determining
such increases. The Respondent nevertheless elected to proceed uni-
laterally to put into effect the wage and other increases. Plant Man-
ager Moore, in his speech to employees on May 10, 1962, stated as
follows : "I want to make it clear, that if the Union should get a
contract or should not get a contract an employee can get a merit
increase without every other employee receiving a similar increase;
that has been our policy and this policy is still in effect." From this
it is obvious that the Respondent intended to undercut the Union's
prestige as the employees' representative. Even in the absence of
Moore's statement to the employees, we would infer such an intent.
For impairment of the Union's prestige was a normal and foreseeable
consequence of the grant of wage increases to all but two employees
in the bargaining unit at a time when the Union's request for a general
wage increase of 15 cents was getting nowhere. Under the particular
circumstances here present, we find that the unilateral granting of
merit and other increases by the Respondent not only constitutes evi-
n Servette, Inc., 133 NLRB 132, 136, set aside 313 F. 2d 67 (CA. 9).
1 Northwestern Photo Engraving Co., Inc., 140 NLRB 24 , holding that a waiver could
not be inferred from the union 's mere failure to respond to the employer's expressed hope
that he could continue his practice of making merit reviews twice annually.
INSULATING FABRICATORS, INC., SOUTHERN DIVISION 1333
dence of the Respondent's overall bad-faith bargaining, but was
itself violative of 8(a) (5).13
(d) The Union on May 11 requested, in writing, certain informa-
tion in regard to seniority, labor grades, and job classifications. This
information was not given to the Union until the August 16 meeting,
and then not in writing but orally, with the union negotiator writing
each item down as it was read. Denton also on a number of occasions
requested from Kirle information concerning rates and wages of each
individual employee. He never received this information, except with
respect to five employees who received merit increases. At the Sep-
tember 7 meeting Kirle finally gave him verbally the names of the
employees and their labor grades, but did not give him the wage rates
of each employee. As the requested information related to wages
and was pertinent to bargaining, the undue delay and in one instance
the total failure to furnish the information requested, constituted,
we find, further evidence of a lack of good-faith bargaining.14
(e) Nor was the Respondent reasonably prompt or cooperative in
submitting to the Union its counterproposals. The Union mailed its
own proposed agreement on May 11, 1962. On June 8, in writing,
and at the subsequent bargaining sessions orally, Denton requested
Kirle for the Respondent's counterproposal. Kirle delayed com-
pliance with such requests with the excuse that he did not know what
the Union wanted. The Union did not receive the Company's counter-
proposal until the meeting on September 6, or 4 months after the
Respondent received the union contract proposal.
In view of all of the above, and upon the entire record, we find that
the Respondent's conduct failed to meet the good-faith standards re-
quired by the Act and constituted refusal to bargain in violation of
Section 8(a) (5).
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that Insulating Fabricators, Inc.,
Southern Division, Spartanburg, South Carolina, the Respondent
herein, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing or failing to meet with reasonable promptness, at
reasonable frequency, and at mutually convenient places, at Spartan-
burg, South Carolina, and to bargain collectively with International
Union of Electrical, Radio and Machine Workers, AFL-CIO, as the
18 N.L R.B. v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U.S. 736.
14 Peyton Packing Company, Inc., 129 NLRB 1358; Oates Bros., Inc., 135 NLRB
1295, 1304.
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
exclusive bargaining representative of all the employees in the ap-
propriate unit set forth below :
All production and maintenance employees at the Employer's
Spartanburg, South Carolina, plant, excluding office clerical em-
ployees, professional employees, guards, and supervisors as de-
fined in the Act.
(b) Unilaterally granting or putting into effect any wage or merit
increases pending negotiations with the said Union without first giv-
ing notice to and consulting with the said Union.
(c) Failing or refusing, upon request, timely to furnish the afore-
said Union with information necessary or relevant to bargaining
issues.
(d) Otherwise refusing to bargain collectively in good faith with
the Union, as the aforesaid exclusive bargaining representative, with
respect to rates of pay, wages, hours of employment, 'and other terms
and conditions of employment.
(e) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights guaranteed by Sec-
tion 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Upon request, meet with reasonable promptness and at rea-
sonable frequency, and bargain collectively with International Union
of Electrical, Radio and Machine Workers, AFL-CIO, as the exclusive
representative of employees in the above-described "unit with respect
to wages, rates of pay, hours of employment, and other conditions of
employment, and, if an understanding is reached, embody such under-
standing in a signed agreement.
(b) Post at its Spartanburg, South Carolina, office or plant, or
other places of business, copies of the attached notice marked "Ap-
pendix." 15 Copies of said notice, to be furnished by the Regional Di-
rector for the Eleventh Region, shall, after being duly signed by Re-
spondent's representative, be posted by the Respondent immediately
upon receipt thereof, and be maintained by 'it for a period of 60 con-
secutive days thereafter, in conspicuous places, including all places
where notices to its 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.
(c) Notify the Regional Director for the Eleventh Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spond has taken to comply herewith.
15 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "A Decision and Order " the words "A
Decree of the United States Court of Appeals, Enforcing an Order."
INSULATING FABRICATORS, INC., SOUTHERN DIVISION 1335
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 meet, upon request, with reasonable promptness and
at reasonable frequency and bargain collectively in good faith
with International Union of Electrical, Radio and Machine Work-
ers, AFL-CIO, as the exclusive representative of all our employees
in the appropriate unit described below, with respect to rates of
pay, wages, hours of employment, and other conditions of employ-
ment, and, if an understanding is reached, embody such under-
standing in a signed agreement.
WE WILL NOT grant or put into effect any wage or merit increases
pending negotiations with the above-mentioned Union without
first giving notice to and consulting with the said Union.
WE WILL NOT fail or refuse, upon request, timely to furnish the
aforesaid Union with information necessary or relevant to bar-
gaining issues.
WE WILL NOT refuse to bargain collectively in good faith with
the Union, as the aforesaid exclusive bargaining representative,
with respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their rights
guaranteed by Section 7 of the Act.
The bargaining unit is:
All production and maintenance employees at the Em-
ployer's Spartanburg, South Carolina, plant, excluding office
clerical employees, professional employees, guards, and super-
visors as defined in the Act.
INSULATING FABRICATORS, INC.,
SOUTHERN DIVISION,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 1831 Nissen Building, 310 West Fourth Street, Winston-Salem,
North Carolina, Telephone No. 724-8356, if they have any question
concerning this notice or compliance with its provisions.
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act, as
amended, 29 U.S.C., Sec. 151, et seq., herein called the Act.
International Union of Electrical, Radio and Machine Workers, AFL-CIO, herein-
after sometimes called the Union, filed a charge on October 23, 1962, and an amended
charge on December 18, 1962, against Insulating Fabricators, Inc., Southern Division,
hereinafter sometimes called the Company or the Respondent, the charge and the
amended charge asserting that the Respondent had engaged in certain unfair labor
practices affecting commerce as set forth and defined in the Act.
Thereafter, on December 20, 1962, the General Counsel of the National Labor
Relations Board, on behalf of the Board, by the Regional Director for the Eleventh
Region, issued a complaint and notice of hearing, the complaint alleging that the
Respondent during the times material herein has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a) (5) of the Act. The Respondent
thereafter filed a timely answer to the allegations of the complaint, effectively denying
violations of Section 8(a)(5) as alleged.
On the issues as framed by the complaint and the answer thereto, and pursuant to
notice, this matter came on to be heard before Trial Examiner Arthur E. Reyman at
Spartanburg, South Carolina, on February 19, 1963, and the hearing was closed on
the following day. At the hearing, the General Counsel and the Respondent were
represented by counsel and the Charging Party, the Union, was represented by a
field representative, H. W. Denton, of the International Union. Each party was
afforded opportunity to call, examine, and cross-examine witnesses and to participate
fully, to argue orally upon the record, and to submit proposed findings or conclu-
sions, or both. Briefs have been submitted on behalf of the General Counsel and
the Respondent and have been carefully considered.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF INSULATING FABRICATORS, INC., SOUTHERN DIVISION
The Respondent is now, and has been at all times material herein, a South Carolina
corporation owning and operating a plant in Spartanburg, South Carolina, where it
is engaged in the distribution and fabrication of industrial plastics. The Respondent,
during the 12 months immediately preceding the issuance of the complaint herein,
which period is representative of all such material times, manufactured, sold, and
shipped finished products valued in excess of $50,000 directly to points and places
outside the State of South Carolina from its Spartanburg plant.
The Respondent is now, and has been at all- times material herein, engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Electrical , Radio and Machine Workers, AFL-CIO, is a
labor organization within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Union Representations of Employees in the Bargaining Unit
On April 18, 1962, the Board, by its Regional Director for the Eleventh Region,
conducted a secret ballot election to determine whether or not the Union should be
entitled as collective-bargaining representative to represent employees of the Com-
pany in a designated appropriate bargaining unit. The result of the secret ballot
disclosed that a majority of the employees in the unit had designated and selected
the Union as their representative for the purposes of collective bargaining with the
Respondent, and thereafter, on April 26, 1962, the Regional Director certified the
Union as the exclusive collective-bargaining representative of the employees in the
following described unit:
All production and maintenance employees at the Employer's Spartanburg,
South Carolina, plant, excluding office clerical employees, professional em-
ployees, guards, and supervisors as defined in the Act.
INSULATING FABRICATORS, INC., SOUTHERN DIVISION 1337
The complaint alleges, and the answer does not deny, that at all times since April 18,
1962, and continuing to the date of the issuance to the complaint herein, the Union
has been the representative for the purposes of collective bargaining of the employees
as described in the unit, and, by virtue of Section 9(a) of the Act, has been and is
now the exclusive representative of all the employees in said unit for the purposes
of collective bargaining with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment.
The Issues
The complaint goes on to allege, and the answer thereto denies, that commencing
on or about April 26, 1962, and at all times thereafter, the Respondent refused and
continues to refuse to bargain collectively with the Union as the exclusive collective-
bargaining representative of the employees in the above-named unit, in that:
(a) Respondent negotiated with the Union in bad faith and with no intention of
entering into any final or binding collective-bargaining agreement.
(b) The Respondent engaged in uncalled-for delays in the scheduling of collective-
bargaining conferences.
(c) On or about June 11, August 13, and September 15, 1962, the Respondent
unilaterally changed the existing wage rates of some of its employees.
(d) The Respondent insisted on a contract termination date to coincide with the
certification year when no good cause existed for such.
(e) The Respondent delayed, for 5 months, an unreasonable period of time in
presenting a contract counterproposal to the Union.
Findings on each of these allegations contained within the complaint will determine
whether or not the Respondent refused to bargain in good faith in violation of
Section 8(a) (5) of the Act.
Request To Bargain and Union Proposals
Under date of April 27, 1962, H. W. Denton addressed a letter from the Spartan-
burg office of the Union to W. C. Moore, resident manager of the Company at the
Company's Spartanburg office, requesting a meeting for the purpose of negotiating
a union contract covering wages, hours, and working conditions for employees within
the bargaining unit represented by the Union and asking to be advised concerning an
appropriate date. This letter was referred by the company representative to Julius
Kirle, an attorney maintaining offices in Boston, Massachusetts; Attorney Kirle in
turn wrote to Representative Denton suggesting that the Company could meet with
the Union on either Wednesday, May 16, or Tuesday, May 22, in Spartanburg. The
first meeting between the parties was set for May 22. Under date of May 11,
Denton sent a letter to Moore enclosing a proposed agreement covering wages, hours,
and working conditions and requested certain information to be furnished to him
including the seniority roster of the Company, a list of labor grades and job classifi-
cations, and the rate of pay for each such job classification; or in the alternative the
job classification, the names of employees working on each operation, and the rates
of pay in effect for each, together with information pertaining to production regarding
time study or method used "for same."
The meeting for May 22 was set for 4 30 p.m. Attorney Kirle had traveled from
Boston to Spartanburg by air to attend the first meeting and was present at the meeting
place at the Cleveland Hotel, Spartanburg, until about 5.15 p.m when a telephone call
was received from Representative Denton canceling the meeting because his com-
mitteeman, Nodine, was detained and would be unable to attend the meeting
The proposed agreement submitted by the Union was quite comprehensive, covering
such points as recognition of the Union, checkoff or deduction of dues, hours of
work, overtime, seniority, vacations, the use of the bulletin board, and many other
customary suggested forms of conditions to be considered by the Company.
The record discloses that the parties met in Spartanburg, South Carolina, for
collective-bargaining negotiations on some six occasions-June 7, July 19, August 16,
and September 6 and 7. The last and final meeting was held on October 18, 1962,
at which a conciliator from the State Department of Conciliation was present.
Counsel for the General Counsel complains of bad-faith bargaining because rep-
resentatives of the Company, particularly Attorney Kirle, insisted on going over,
phrase by phrase, the union proposal as originally made in the form of a suggested
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective agreement , without making counterproposals .' There can be no dispute
that the Company through its negotiators , Kirle principally and Moore with him,
spent three full bargaining sessions and went so far as the time of the fourth session
on their insistence that they discuss the Union 's proposed contract provision by
provision and word for word and reading very carefully the information which the
Union had requested as to seniority , labor grades , and classifications . 2 General
Counsel makes much of the fact that during the period from the time of the first
demand for meeting, April 27, when the Union first requested negotiations, until
September 7, that there were only five meetings. The General Counsel says that
even though one meeting first arranged by Denton was canceled by him , a third
meeting was canceled by Kirle; that Denton was willing at all times to meet to seek a
contract , and, in fact, actively sought to have the Respondent meet on more frequent
occasions . I cannot find within the record that the Union through its representative
objected to the fact that the Company had designated Attorney Kirle as its chief
negotiator . I cannot find , in the light of common experience in bargaining negotia-
tions, that five meetings over a similar period of months, is -at all unusual in bargain-
ing sessions . Denton could have insisted , of course, that Kirle remain in Spartanburg
and, with the assistance of Moore, bargain through to the bitter end until complete
agreement was reached. This, it is claimed, Denton did do. I quote from the brief
filed on behalf of the General Counsel:
It is further undisputed and uncontradicted that Denton, after each meeting,
requested that Kirle meet again the next day-each meeting which did take place,
with one exception , was in the evening and into early night-and continued at all
times to have successive collective bargaining sessions . Kirle declined every such
request on the ground that he did not know the schedule and could not set the
next meeting until he returned to his office. On the one occasion when the parties
did meet successfully in the evening of September 6 to the morning of Septem-
ber 7, a total in both meetings of about 4 hours, it was because Kirle did not
have an early flight reservation to return to Boston . . . . Kirle's only ex-
planation for failing to meet either more frequently or successfully as requested
is the fact that he is a very busy man representing a number of companies in his
labor relations practice.
At the hearing, counsel for the Respondent offered in evidence a copy of what is
entitled "A History of Negotiations Between the Company and the Union," quoting
notes made by Kirle and attaching or including therein what are said to be con-
temporaneous , or almost contemporaneous , notes of what transpired at each one of
the meetings. I rejected 'the offer of these notes, marked "Respondent's Exhibit No.
3," but now, after reading the transcript of testimony, reverse my ruling; and admit
Respondent's Exhibit No. 3 into evidence herein, only for the purpose of sequence
of events and for .the detail furnished therein, which coincides in almost every respect,
although elaborating some points, on the testimony given by Denton and Kirle at
the hearing. My reason for reversing myself in this respect in taking the exhibit for
the limited purpose mentioned, is that it sets forth in some detail, rather than in
generalities, the discussions in regard first, to the provisions of the proposed agree-
ment first submitted by the Union; and second, the counterproposals submitted by
the Company before the meeting with the conciliator on October 18, 1962.
Except for the meeting canceled by Denton, the record shows clearly that Denton
was willing, at all times, to meet to seek a contract and actively sought to have the
Respondent meet on more frequent occasions . The Respondent had delegated its
negotiating authority to Kirle and all arrangements for negotiation meetings had to
be made with Kirle. At the hearing, it was emphasized that Kirle represents some
20 employers .in labor matters and is a very busy man. On the other hand, it must
be considered that the proposal in contract form originally made by the Union was
comprehensive, that the parties were dealing with each other-that is bargaining
collectively-for the first time, so that, there seems to be good excuse and justification
for extensive discussion of the union proposals . As a matter of personal impression,
'The complaint alleges that Attorney Kirle, whose office is located in Boston, Massa-
chusetts, acted as agent for the Company during the bargaining sessions. The facts clearly
disclose that Attorney Kirle carried the burden of negotiations for the Company, and it
seems to me inconsequential whether he be deemed an attorney-at-law, an attorney in fact,
or an agent acting on behalf of the 'Company I see no particular point on the dwelling
by the General Counsel on the fact that Kirle acted as "agent" for the Company The fact
remains that he did carry the burden of negotiation, in company with Moore, for the
Company
2 It seems to be agreed that the bargaining sessions lasted for an average of about
3 hours each.
INSULATING FABRICATORS, INC., SOUTHERN DIVISION 1339
it seems to me, from a review of the record which discloses careful consideration by
the representative of either side for the advantages to be obtained for his respective
principle, that a considerable amount was accomplished during the sessions which
actually were held. I find it extremely difficult, as a practical matter, to say, on the
basis of the facts presented, that an undue length of time was taken for discussion
of the union demands, and subsequently the putting together of the union demands
with the company counterproposals.
Under Section 8(d), the obligation to bargain collectively does not compel either
party to agree to a proposal, nor does it require the making of a concession, if the
parties, in good faith, have met at reasonable times and conferred in good faith with
respect to wages, hours, and other terms and conditions of employment.
Company Counterproposals
On or about July 8, Denton requested Kirle, in writing, for company counter-
proposals to which Kirle replied that the Company and the Union had thoroughly
discussed and explored the Union's proposals, but some of which were still the subject
of discussion on several items regarded as important by each of the parties. These
included such matters as vacations, promotions, holidays, a grievance and arbitration
procedure, wages, leaves of absence, and similar matters.
At the negotiating meeting held on September 6, Kirle, on behalf of the Company,
submitted "Company proposals" in the form of a completed proposed agreement, at
the same time informing Denton that any of the Union's proposals not agreed to as
shown by the Company's proposed agreement, had been rejected by the Company;
but, however, that the Union was not thereby foreclosed from pressing the rejected
requests made by it in its proposed agreement. (It is as if Kirle had said: "Feel free
to keep on arguing, but it will do you no good.") At this meeting, the concessions
made by the Company and its rejections and proposed new provisions of a proposed
agreement were discussed at some length. Agreement had been reached on some of
the proposed provisions made by the Union, while more of them had been revised
to meet the Company's requests.3
At this point, the parties were still far apart on two main issues: first, the matter
of wages and wage increases within job classifications; and second, the termination
date of an agreement eventually to be made by mutual action. The Union wanted
a 1- or 2-year contract from the date of the signing thereof, while the Company
requested a contract only to run to the termination of the certification year.
During the course of the meeting held on August 16 the names of five employees
were presented to Denton by Kirle as being eligible for merit increases in accordance
with established company policy theretofore in effect, Kirle telling Denton that the
Company would like to put these individual increases into effect and make the raises
retroactive to the beginning of the payweek of August 13, if no objections were raised
by Denton. At the same meeting Kirle gave Denton a list denoting labor grades
together with the minimum and maximum rates of pay for each grade and the various
classifications in the labor grades which, according to Kirle, Denton agreed to except
for the proposed minimum and maximum rates of pay. It is agreed between the
parties that Denton received the information on merit increases, the labor grades,
the minimum and maximum pay rates, and the classifications within the various labor
grades. Therefore, the parties were still apart on the questions of wages, either as to
minimum or maximum rates of pay within labor grades. A real dispute arises as to
whether or not Denton agreed then that these individual increases affecting em-
ployees Donald Grice, Johnny Moore, Glenn Nodine, T. C. Owens, and Calvin
Thomas, could be put into effect or whether he asserted that he did not approve of the
Company having already put them into effect. The Respondent contends that it ex-
plained its policy of a review of individuals who might or might not be entitled
to merit increases, and explained its policy on job evaluation and upgrading and the
types of jobs that fell in the various labor grades, the difference between them and
how the plan worked, and asserts that no objections were raised by Denton. The
latter was informed that in accordance with the Company's plan two employees were
then eligible for raises as of August 13 (the beginning of a workweek) and that
another employee was scheduled to be upgraded on September 15. As stated, the
Respondent contends that Denton did not object to the five increases already given
and the two proposed increases. At the hearing, Denton took the position that he
regarded these announcements to the Company, or suggestions as the case may be, as
3 During this meeting, as in prior meetings, discussions concerning proposed provisions
of a collective agreement had been interwoven, at times, with discussions concerning griev-
ances presented by the Union to the Company in connection with working conditions
affecting individual employees or certain practices of the Company within the plant.
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
something that the Company had already or would put into effect; that he could
interpose no effective argument to what the Company announced it had done or in-
tended to do. It seems -clear enough that during the bargaining between the parties,
the Respondent, in accordance with its custom, granted 12 wage increases to 10 dif-
ferent employees between June 11 and September 15; it is not clear, on the basis
of testimony given by Denton on the one side and Kirle on the other, that Denton
acquiesced to prior company custom in regard to the granting of merit increases or
"the re-slotting" of jobs at various times during the employment of employees within
the bargaining unit.
On this point, if the undisputed testimony of Kirle is to be accepted, up to the
meeting before the one held on September 6 wage increases were discussed between
the parties, and the subject of merit increases was one of those discussed. Had Den-
ton (which apparently he did not) accepted the propriety of wage increases during
the course of negotiations with a reservation that when final agreement had been
reached adjustments would be made, I could readily accept the theory of the General
Counsel that in the absence of any such agreement, the merit increases made,
or the reslotting of jobs, was done unilaterally by the Company without the consent
of the Union. Unfortunately, the record is affirmatively silent on this point. I must
accept the fact, drawn on inference only, that Denton did, at the time these merit
increases were discussed, effectively protest that they should not have been put into
effect without full agreement having been reached on a collective agreement between
the Union and the Respondent. Unless it be found, therefore, that the Company
was not, as of August 16 or September 5, bargaining in good faith within the meaning
of Section 8 (d) of the Act, there can be no finding that the Company on the later date
had committed an unfair labor practice. I think the circumstances here fall under the
principle laid down in Fant Milling Company, where the company broke off negotia-
tions with the union and then instituted a unilateral wage increase among its employees
within the bargaining unit represented by the union. In that case the Board through
its General Counsel had alleged that:
Respondent, without notice to the Union, put into effect a general wage in-
crease . . . and that by those acts "Respondent did engage in and is hereby
engaging in an unfair labor practice within the meaning of Section 8(a), Sub-
section 5 of the Act."
and there the Board held that the respondent had refused to bargain collectively
with the union within the meaning of the Act and that the respondent was merely
going through the motions of collective bargaining without a genuine intention
of trying to negotiate an agreement with the union as required by the provisions
of the Act, and expressly held that the company's unilateral grant of a wage increase,
without the consent of the union, constituted a violation of Section 8(a)(5). Fant
Milling Company, 117 NLRB 1277, set aside 258 F. 2d 851 (C.A. 5), reversed and
remanded 360 U.S. 301.
The Differences Between the Parties Regarding the Termination Date
of the Proposed Collective Agreement
At the outset of negotiations, Denton for the Union asked for a 2-year contract
and then a 1-year contract, beginning from the date of the execution of any agreement
entered into by the parties. The Respondent at all times held to its position that
the contract should run for only the certification year-that is, for 1 year after
April 26, 1962.
At a time during the course of the negotiations, the Respondent expressed doubt
that the Union still held a majority of the employees within the bargaining unit.
This, apparently, was its main reason for adhering to its request that the contract
terminate at the end of the certification year. This subject may have been a
valuable point for the Respondent to hold for compromise purposes during the course
of negotiations, or it may be taken to demonstrate that the Respondent did not believe
that the Union, after the certification date, in reality represented the majority of the
employees within the bargaining unit. If the latter was the case, the Company would
find itself in poor position under numerous decisions of the Board which require a
reasonable time in which the Employer may demonstrate a loss of union majority.
Here, the Employer did not elect to take advantage of Section 102.62 of the Rules and
Regulations of the Board, Series 8, as amended, to file a petition for decertification.
This, I believe, was not proper negative action, since the Union had been so recently
certified.
In summary, then, at the meeting of September 6 Respondent gave the Union a
complete written proposal as a basis for negotiation, together with labor grades and
job classifications; the Company's counterproposals were discussed and bargaining
INSULATING FABRICATORS , INC., SOUTHERN DIVISION 1341
took place in regard to the differences between the union proposals and the Com-
pany's counterproposals , some points being agreed upon and some points being sub-
ject to further negotiation . At this meeting - the contract termination date again was
brought up and the Respondent and the Union each adhered to its respective position.
On the following morning, September 7, Kirle gave Denton a copy of the Company's
insurance program in booklet form , together with the names of the employees and
their labor grades Denton had asked for on the previous day. A number of pro-
posals were mutually agreed to; as shown , the parties were still far apart on several
important issues.
The Meeting of October 18
Toward the end of the meeting of September 7, according to Kirle, Denton sug-
gested that it might be advisable to call in a conciliator in the hope that the parties
could reach an agreement.
A meeting was subsequently arranged with a conciliator from the State Depart-
ment of Labor , South Carolina, to be in attendance . A meeting was held on Octo-
ber 18, 1962. The meeting with the conciliator proved abortive . The conciliator
reviewed those matters upon which agreement had been reached and other matters
upon which agreement had not been reached up until the final meeting of September 7.
The conciliator , after reviewing all of the items brought to his attention , suggested
that there were a large number of items still in dispute, that he would adjourn the
meeting, subject to recall by him and also subject to either party saying they wanted
another meeting at which , if such meeting was called , he would be available to
attempt to resolve the differences then existing . From reading the testimony of
Kirle, and his version of what transpired at this meeting, the Company took a firm
and adamant position regarding what it said it had conceded in the way of union
demands and what it said it had accomplished in the way of union acceptance
of company proposals . The meeting ended with the parties still far apart on the
question of wages and the termination date of any contract which might be made
among the other matters still under negotiation.
Kirle again suggested , during the course of this meeting, that the Company was
in doubt as to whether the Union still represented a majority of the employees in the
designated unit.
At this stage , therefore , the question arises as to whether there was a real impasse
created by the refusal of the Company to negotiate increases or was Respondent going
through the motions of collective bargaining without any real intent to attempt to
conclude and agree upon the provisions of a collective agreement between it and the
Union.
I am convinced that the Union through its representative made every reasonable
effort to obtain from the Company figures to permit it to suggest reasonable wage
adjustments . I am just as fully convinced that the refusal of the Company to consider
any date other than the certification year date as the termination date of any contract,
was sham and pretense only. The fact in itself shows that the Company raised the
question of doubt concerning the majority situation , after 5 months of bargaining,
and this leads me to believe that it was engaging in dilatory and obstructive tactics
in relation to the entering into of a written agreement with the Union.
At the hearing, I was impressed by the demeanor and the straightforward testimony
of Denton , the union representative , in regard to his real efforts to obtain an agree-
ment with the Company . I am not at all impressed by the urgency placed on the
argument of counsel for the Respondent that he was a very busy man , had difficulty
in arranging appointments because he represented some 20 other clients , and that
he was unable to adjust his program at the end of each of the 5 meetings without
returning to his office in Boston to determine what schedule he had set up or had
had necessarily to set up in order to continue negotiations with the Union. I believe
that the union representative should have been more insistent than he was that nego-
tiations proceed at reasonable times and without being spread over a period of 5
months, each date being set for the convenience of counsel for the Respondent , Kirle.
While it may be true that Kirle appeared at Spartanburg at some time and expense
to attend the first meeting arranged for which was canceled by Denton , the fact
remains that Kirle himself, because of the absence of Moore on vacation , canceled a
prearranged meeting.
I have heretofore referred to the provisions of Section 8(d) defining the phrase to
bargain collectively ," and have commented not once but twice on the failure of
Denton on behalf of the Union to insist that the bargaining sessions be adjourned
indefinitely through the failure of the Respondent to exercise due diligence in bargain-
ing. I do not believe that in this case the Respondent did exercise the proper degree
of diligence in pursuing a bona fide effort to reach agreement with the Union. I have
tried quite carefully (perhaps at too much length ) to relate the course the nego-
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tiations took in this particular matter, and have set forth uncontradicted facts going
to show the careful method adopted by each representative of each party concerning
first, the provisions of the original proposal submitted by the Union and second, the
counterproposals and such minor concessions as were made by the Company.
Concluding Findings
(a) I think the Board has laid down the law in "M" System Inc., Mobile Home
Division Mid-States Corporation, 129 NLRB 527, 549, in regard to what "due dili-
gence" means in the arranging of meetings with a union representative for the purpose
of negotiating a contract. I think Section 8(d) of the Act requires a real effort on
the part of any party engaged in negotiations for a collective agreement to meet at
times not convenient only for the purpose of accommodating one of the parties to
the agreement. J. R. Rutter-Rex Manufacturing Company, Inc., 86 NLRB 470, 506.
See also WATE, Inc., 132 NLRB 1338.
(b) I am called upon to find whether or not certain increases granted by the Com-
pany to individual employees during the course of negotiations constituted a unilateral
change of existing wage rates. I have discussed above the question of whether or
not, on the testimony of Denton as against the testimony of Kirle, Denton did agree
to these wage increases or accepted the fact of such wage increases having been made
without the consent of the Union during the course of wage negotiations. Fant
Milling Company, supra. In Fant Milling, the Company had broken off negotiations.
In the instant case the Company had not completely broken off negotiations at the
time the increases were made, although it proceeded to put these particular individual
wage increases into effect. I find it unnecessary to decide, for the purposes of this
case, the question of credibility as between Denton on one hand and Kirle on the
other, as to whether Denton had agreed that the Company could effect these increases.
It is true that Kirle gave notice to Denton of the customary procedure of the Company
before the Union entered the scene, to make individual or personalized increases from
time to time on a method not described within the confines of the record in this case.
Were I called upon to decide the question, I should say that Kirle, an expert labor
relations specialist, should have advised his client to withhold such increases until
such time as full agreement had been reached with the Union on the question of
wages and minimum and maximum rates of pay within job classifications
(c) In regard to the insistence of the Union in its reasonable proposal that the
contract run for 1 year (as finally agreed to by Denton and opposed by the company
representative), I find it to be a reasonable request. The Union was newly certified,
speaking in comparative terms, and its first collective agreement was important to
it. As long as the Employer could prolong negotiations, it stands to reason that a
contract signed sometime in October, November, or December, 1962, to run until
April 1963, would mean not much of a contract in terms of stable conditions, but
would indicate to the employees that their representative would again, at the end
of the certification year, have to engage in prolonged collective-bargaining nego-
tiations with the Company, either to sustain any benefits derived through collective
bargaining or perhaps lose some of the benefits they may or may not have attained
through a contract to run for such a short term. Were I an arbitrator, which I am
not, in the instant case, I should say that the Union was being subjected to tactics
on contract duration, insisted upon by the Company, to the detriment of the members
of the Union and to the Union as the collective-bargaining representative of the
employees in the unit described above.
Summary
I do not expressly find that the Respondent negotiated with the Union with no
intention of entering into any final or binding collective agreement, as set forth in
the complaint. However, I do find that the Respondent did not bargain with the
Union in good faith but did have an intention, could it drag out negotiations long
enough, to persuade or force the union representative to enter into a contract solely
and finally according to the provisions laid down by the Company. This, to my mind,
is not good-faith bargaining I have commented above on the question of whether
or not the Union did not effectively insist and urge more strongly than it did that a
representative other than Kirle enter into negotiations, at reasonable times and con-
venient places, to negotiate or attempt to negotiate a mutually agreeable collective
agreement between the parties. Although, as I have indicated above, the unilateral
wage increases were made after notice to Denton, the union representative, the
Company had no right in law, at the particular time, to make such increases effective.
On the question of credibility as between Denton and Kirle, I find that Denton had
taken as fait accompli the announcement made by Kirle at one of the meetings that
INSULATING FABRICATORS , INC., SOUTHERN DIVISION 1343
the increases were fully decided upon and that the Company had or would put them
into effect.
Accordingly , I find that the Respondent did not negotiate with the Union in good
faith or with an intention of entering into any final or binding collective -bargaining
agreement except upon the terms imposed or attempted to be imposed upon the
Union.4
Whether the Employer was justified in raising the question of a continued majority
of the union employees within the bargaining unit is appropriate has long since been
settled. Ray Brooks v. N.L.R .B., 348 U.S. 96, 103. The principle there enunciated
is that if an employer has doubts about his duty to continue bargaining , it is his re-
sponsibility to petition the Board for relief , while continuing to bargain in good faith
at least until the Board has given some indication that his claim has merit.5
I find that the allegations of the complaint , in regard to the failure of the
Respondent Company to bargain in good faith , are sustained by the preponderance
of the evidence . I think there was no real impasse reached by the parties in the sense
that they could not possibly agree on the provisions of an initial contract between the
Union and the Company . I recognize that the Union was newly certified , that there
was no prior agreement from which each party could work, and that , so to speak, each
party was starting from scratch. On this basis , it is clear to me that the union
representative at all times was desirous of reaching agreement , was willing to make
concessions , did make concessions , and except on the most important matters under
negotiation he was willing to yield . I find a self-admitted expert labor relations
lawyer, who more or less at his convenience shaped the course of negotiations to the
point where the two most important things to the employees and their representa-
tive-the question of wages, and whether or not there would ever be a contract signed
between the Company and the Union-were no longer to be discussed . I think the
impasse reached between the parties was brought on by the refusal of the Respondent
through its representative , Kirle, to do anything to better working conditions, or
change wages , or to agree on a reasonable contract term . It seems to me that the
Union , in requesting a 1-year contract , was extremely moderate in its terms
Therefore , I find that the General Counsel has fully sustained the allegations
of the complaint herein on the whole preponderance of evidence and that the Respond-
ent has failed to bargain in good faith in violation of the provisions of Section 8 (a) (5)
of the Act.6
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent , Insulating Fabricators , Inc., Southern Division,
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 rela-
4 The cases cited in brief by counsel for the General Counsel I consider in point on the
proposition just discussed. These cases include National School Slate Company, 137 NLRB
925; Lloyd A. Fry Roofing Company, 123 NLRB 647 , The Hinde & Daiiche Paper Coin-
pany, 104 NLRB 847 No decertification petition has been shown to have been filed herein
nor did the Employer show that he had been directly informed by the employees that more
than 50 percent no longer desired union representation
5 See also Old King Cole, Inc. v. N .L.R B , 260 F. 2d 530 (CA. 6 ) ; Cone Brothers Con-
tracting Company v. N L R.B., 235 F. 2d 37 (CA 5 ) Trial Examiner Arthur Leff, on
April 1, 1963 ( IR 121-63), in General Electric Company , has carefully and to my mind
almost completely and correctly summarized the many court and Board decisions which
show the essentials of good-faith bargaining He has set forth the essentiality of what
constitutes good -faith bargaining at reasonable times . 52 LRRM 537
6I have carefully read citations of authority offered by each of counsel in brief in sup-
port of their respective positions . Counsel for the Respondent relies upon NLRB v
Benne Katz, etc., d/b/a Williamsburg Steel Products Co , 369 U S. 736 , an extract from
a textbook written by T. R. Isermin ; American Laundry Hachineey Company, 76 NLRB
981 ; Aecui ate Threaded Products Company, 90 NLRB 1364 ; Westinghouse Electric Supply
Company, 96 NLRB 407, Easton Publishing Co, 19 NLRB 389; Keith, Furnace Company.
73 NLRB 754 ; NL R.B v. Landis Tool Company , 193 F. 2d 279 ( CA. 3) . and finally
Valley City Furniture Company, 110 NLRB 1589 Benne Katz, etc, d/b/a Williamsburg
Steel Products Co, supra, is against the position taken by the Respondent ; the other
cases cited by him , together with the textbook citation from Isermin , may have some per-
suasive effect not perceived by me , but I think are overwhelmed by authorities cited by
the General Counsel in his position on each of the respective issues involved in this case.
Among these are Duro Fittings Company , 121 NLRB 377 , Oates Bros., Inc, 135 NLRB
1295 , National School Slate Company, supra; L. G. Everest, Inc , 103 NLRB 308; and
Fetzer Television , Inc, 131 NLRB 821.
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lion 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.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act:
1. The Respondent shall cease and desist from failing to bargain in good faith,
refusing to meet with the Union at reasonable times and at •a mutually convenient place
or places in Spartanburg , South Carolina, and failing to observe diligence in the
seeking with the Union a collective -bargaining agreement , the terms of which be
stated in writing when agreement is reached.
2. Further meetings looking forward to the reaching of a collective-bargaining
agreement shall be spaced at least for three times during any 1 week, unless the rep-
resentatives of the parties mutually agree to extended times for meetings.
3. The Respondent cease and desist from making or putting into effect any wage
increase or increases , during negotiations , without the consent of the representatives
of the employees within the bargaining unit.
Upon the foregoing findings of fact, and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAw
1. International Union of Electrical , Radio and Machine Workers, AFL-CIO, is
a labor organization within the meaning of Section 2 (5) of the Act.
2. Insulating Fabricators, Inc., Southern Division , is now, and has been at call times
material herein , engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
3. By refusing to bargain in good faith with respect to the terms and conditions of
employment of employees within an appropriate bargaining unit, as provided in
Section 8 (a) (5) of the Act, the Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed in Section 7 of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the -meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Tomahawk Boat Manufacturing Corporation and Gerhard Heil.
Case No. 18-CA-1571. November 4, 1963
DECISION AND ORDER
On August 14, 1963, Trial Examiner Lee J. Best issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the Respondent and the General Counsel filed
exceptions to the Intermediate Report and briefs in support of their
exceptions.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Leedom, Fanning, and Brown].
i The Respondent's request for oral argument is hereby denied as , In our opinion, the
entire record in this case, including the exceptions and briefs , adequately set forth the
issues and positions of the parties.
144 NLRB No. 133.