Intercontinental Engineering and Manufacturing Co.

National Labor Relations Board - Board Decisions

Apr 5, 1965

151 N.L.R.B. 1441 (N.L.R.B. 1965)

INTERCONTINENTAL ENGINEERING & MFG. CO. 1441
APPENDIX A
Computation of Gross Backpay, Interim Earnings and Net Backpay for
William H. Miller
Calendar Quarter Gross Backpay Net Interim
Earnings
Net Backpay
1960-1 (1/13 to 3 /31) ------------- ---- ------------------ $617 89 ---------------- $618 00
1960-2-------------------------------------------------- 910 75 ---------------- 911 00
1960-3 --------------------------------- 911 92 $639 26 273 00
1960-4 --- ----------------------------------------- 688 63 ------------- -- 689 00
1961-1 -------------------------------------- - --------- 778 78 136 36 642 00
1961-2---------------- ---- -------------- 855 39 1,455 39 ----------------
1961-3------- ----------------- ---------------------- 849 29 1,673 08 ----------------
1961-4-------------------------------------------------- 830 89 1,087 83 ----------------
1962-1 ---- --------------------- 921 84 1,770 82 ----------------
1962--2------- ------- 959 84 1,481 88 -------- -------
1962-3------------------- -- ------ ------------------- 930 72 74 17 857 00
1962-4------------- -------------------------------- 903 18 616 68 286 00
1963-1---_ 974 54 521 52 453 00
1963-2----- ------------------------------------------ 972 73 46 00 927 00
1963-3 ----------- ------------------------------------- 934 90 ---------------- 935 00
1963-4_ 962 32 ----------- ---- 962 00
1964-1 (1/1 to 3/23)--------------- ------ ----------- 776 00 39 75 736 00
Total ----------------------- 8,289 00
Intercontinental Engineering and Manufacturing Co. and Inter-
national Association of Machinists , District Lodge No. 71,,
AFL-CIO. Case No. 17-CA-2386. April 5, 1965
DECISION AND ORDER
On October 15, 1964, Trial Examiner Phil W. Saunders issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had not engaged in unfair labor practices as alleged in the
complaint, and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to the Trial Exami-
ner's Decision-in which the Charging Party joined-and a support-
ing brief. The Respondent filed a brief in support of the Trial
Examiner 's Decision.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
151 NLRB No. 139.
783-133-66-vol. 151-92
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and briefs, and the entire
record in this case, and hereby adopts the Trial Examiner's findings,
conclusions, and recommendations.'
[The Board dismissed the complaint.]
'The record shows that at the second negotiation meeting on March 27, 1963, both
the Union and the Respondent expressly reserved the right to withdraw all compromises
and offers In the event of a strike In view of this agreement we do not view Respond-
ent's withdrawal of its prestrike offer as evidence of bad faith. Hence, we find it unnec-
essary to, and do not pass upon, the broad statement contained in footnote 15 of the
Trial Examiner's Decision.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on February 19, 1964, by International Association of
Machinists , District Lodge No. 71 , AFL-CIO, herein called the Union , the General
Counsel issued a complaint dated March 30, 1964, against Intercontinental Engineer-
ing and Manufacturing Company, herein called the Respondent or the Company.
The complaint , as amended , alleges that the Respondent engaged in unfair labor prac-
tices within the meaning of Section 8(a) (1) and ( 5) of the National Labor Relations
Act, as amended . In a duly filed answer the Company denied the unfair labor prac-
tice allegations . A hearing was held before Trial Examiner Phil W. Saunders at
Kansas City, Missouri , and all parties were represented and were given full oppor-
tunity to examine and cross-examine witnesses , to introduce evidence , and to argue
orally. The General Counsel and the Respondent also filed briefs.
Upon the entire record, and from my observation and demeanor of the witnesses,'
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Respondent is a Delaware corporation qualified to do business in the State of
Missouri. In its Parkville, Missouri, operations, the Respondent is engaged in manu-
facture and repair of machinery and equipment. In the course and conduct of its
business, the Respondent annually ships manufactured products valued in excess of
$50,000 from its said facilities to destinations outside the State of Missouri.
The complaint alleges, the answer admits, and I find that the Respondent is engaged
in commerce as defined in the Act.
H. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists , District Lodge No. 71, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
In December 1961 an election was held among the employees of the Company,
and the Union was certified as the representative of a small group of machinists.
Subsequent negotiations, however, were unsuccessful in reaching any contract.
'The declaration that my findings are based on my observation of the witnesses is in-
tended to apply to the testimony of each and every witness, and my failure to comment
on the demeanor of a particular witness is not to be taken to mean that in evaluating his
testimony I have not taken his demeanor into consideration. Moreover, when given
logical reasons for rejecting the testimony of a particular witness, either in its entirety
or on a particular point, It should not be assumed that I rely exclusively on such reasons,
and that the demeanor of the witness has not been considered in evaluating his testimony
When I have indicated that I regard a particular witness as generally untrustworthy, it
Is to be construed to mean that I reject his testimony as a whole, unless I explicitly in-
dicate that I accept his testimony on a particular point.
INTERCONTINENTAL ENGINEERING & MFG. CO . 1443
About a year later the Union filed a petition to represent the production and mainte-
nance employees , and on February 11, 1963, the second Board certification in an
appropriate unit was issued to the Union.2
As background matter the Respondent 's former general manager , Louis Carr,
testified that he received a document from the Company in February 1962.3 This
document states in part that it would be the policy of the Company to resist signing
the "standard contract ," and that the Company would also attempt to substitute an
agreement which would provide for an open shop, preserve the right of the Company
to discharge employees for any reason , provide reimbursement by the Union in event
of a strike or slowdown, and one which would provide no building of seniority for
employees. The Company states in this document, however, that Respondent would
pay the prevailing wages in the area for similar type work. Carr also testified, in
establishing background, that he was told by the Respondent's president, H. H.
Everist, Jr., in February that the Company was never going to sign a contract .4
This record shows that the first negotiating session between the parties after the
second certification was held on March 14, 1963.5 At this meeting the Union sub-
mitted its proposals to the Company,6 and the Company took the same under
advisement. At the second meeting on March 27, the Company submitted counter-
proposals ,7 and the parties also held negotiating sessions on April 10, 18, 23, and 25.
As to the meetings in April , the Union 's business representative , Jackson, testified
that language changes were submitted , but that they never got to the "real meat" of
the negotiations-which were seniority, union-security, and overtime provisions. The
parties met on May 14 and 15 and also on May 20-immediately prior to the strike.8
Jackson testified that at the May 20 meeting the Company proposed a "weak"
maintenance -of-membership clause and the Union proposed a modified union shop,
and further stated that the Union was talking about time and a half after 8 hours-
time and one-half on Saturday, and double time on Sunday-while the Company had
the position of time and one-half after 40 hours. Jackson states that at the negotiating
session on June 12 there were no changes on either side, and that the Company
announced that their prior proposals were no longer "on the table."
The Respondent 's chief negotiator , James Willard , admitted in his testimony that
the Company was very much opposed to a union-security clause, but that he did on
two occasions offer a modified type of maintenance -of-membership provision. Willard
further testified that the Union 's "fixation" on the union-security provision was a
complete "stumbling block" to the contract . Willard also related that both parties
reserved the right to withdraw contract proposals in event of a strike, and at the
July 16 negotiating meeting he did revoke the company proposals . At the meetings
between the parties on September 12, as testified to by Willard-the Company offered
a skeleton agreement in efforts to end the strike, and make a similar offer in their
October meeting.
The General Counsel produced testimony through employees Van Dyke and
Simmons to the effect that on October 15, the Respondent 's vice president, Hubert
Everist , Sr., told them , "Well, I have been fighting labor all my life. I just can't have
any union shop. They won 't be in there long until they will want to run my business
and it just wouldn 't work out, you know I have 16 other places up north I can take
my work to and I don 't have to have that shop over there." Van Dyke also related
that in February 1964, Supervisor Graves told him that in his opinion he did not think
the "old man" would ever sign a contract. Employee Hamilton testified that in mid-
September , Everist, Senior , stated that , "He had seen situations like this in the past
where the company was organized and it turned out that the company was just signing
the paychecks while the union was actually running the shop instead of management,
and he didn't have any intention of letting this sort of situation develop there ." Albert
2 This case involves only the series of negotiations and conduct following the second
certification.
8 General Counsel's Exhibit No. 2.
* Other aspects of Carr's testimony will be mentioned and discussed in the concluding
phases hereinafter.
5 All dates are 1963 unless specifically stated otherwise.
E General Counsel's Exhibit No. 3.
7 General Counsel's Exhibit No. 4.
8 Certain employees involved herein went on strike on May 20. The General Counsel
contends that the Respondent caused the strike by its unlawful refusal to bargain with
the Union ; and hence it is an unfair labor practice strike.
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hoover testified that in late August Respondent's Supervisor John Graves informed!
him on the picket line that he was wasting his time in that "the old man said he
wasn't signing any contract under any conditions." Hoover also attributed a similar
statement to Respondent's Supervisor McLaughlin. Employee Marshall testified that-
in September Supervisor McLaughlin told him the strikers were "whipped" as the
"old man" was never going to sign a contract. Marshall further related that in
February 1964, Supervisor Taylor stated that the "old man" had too much money to
sign a contract. Supervisors Taylor and Graves denied the statements attributed to.
them.
As to Section 8(a)(5) allegation the General Counsel maintains that while the
Company was ostensibly complying with the formal requirements of collective bar-
gaining by meeting with the Union and discussing contract clauses, it actually had no
intention of attempting to reach an agreement. The General Counsel argues that the
Company maintained an unyielding and irrevocable position as to union shop and
overtime pay, and that many of its proposals presented during the negotiations were
already in effect at the times when the Respondent made them. The Company, on
the other hand, maintains that in the early sessions between the parties there was slow
but steady progress, but that by late April the critical issues on union security and
overtime had become apparent to all and that the parties were split by matters of
principle. Further, that the Company bent to the Union's demands in those areas,
but the Union stood firm and that an impasse was reached when the Union would not
respond to the Company's modifications in the meeting of May 20.
First of all it is noted that there was no reluctance on the part of the Company to,
meet with the Union, and from March 14 to December 11 the parties held many
separate negotiating sessions which will be detailed hereinafter .9 Next it is noted'
that after certification in February the Union requested payroll information and the
same was immediately supplied. The Union then named its employees' bargaining
committee, and the Company granted permission for these employees to be off work
to participate in the subsequent negotiations.
At the first meeting on March 14, the Union submitted its initial proposal, and on
March 27 the Company made its first counterproposals, as aforestated. This record'
also shows that at this second meeting on March 27, both the Company and the Union
reserved the right to withdraw all tentative agreements and offers if an agreement
could not be reached without a strike. This record further shows that the Union
accepted article I of the Respondent's proposal when the Company agreed to drop
paragraph 3 of this article, and the Union also, at least tentatively, agreed to accept
article IV (wage rates). At this meeting on March 27, the Company agreed to the
Union's request on 4 hours "call-back" pay instead of 2 hours initially proposed by
the Company. The Union rejected the Company's demand for $2,500 per day
damages and also rejected the proposal on seniority, discharges, and management
rights. The vacation proposal by the Company was acceptable to the Union if
certain changes were made and the Company agreed to study the matter.
At the April 10 meeting the Company presented a document containing certain
company proposed modifications. On April 10 the Company offered a modified
article on grievance procedure which the Union rejected. In their discussion on
seniority the Company offered to reduce the probationary period from 90 to 60 days,
but the Union wanted 30 days. The Company also offered to provide that seniority
would revert to the first day hired at the conclusion of the probationary period. The
Company wanted the right to fire an employee after 6 months' illness-the Union
wanted 12 months, and the Company agreed to language which would not make termi-
nation mandatory. The Company offered a modified proposal, but the Union rejected
it. The Company also made a concession on the number of hours required for vaca-
tion purposes, but no agreement was reached?a
At the meeting on April 18, both parties presented documents containing proposals
previously agreed to. The Union proposed to take seniority on all present employees
back to their original employment regardless of whether they were employed in the
Kansas City shop or in some other shop. The Company insisted on a January 1,
1959, cutoff, but agreed to give the matter more consideration. Some comment was
made at this meeting by the Union relative to a modified union shop. The Company
statefl that it was opposed to a union shop in principle. The Union at this time
also repeated its demand for overtime.
At the April 23 meeting the Company agreed to extend the employees vacation
period for I day with pay when a paid holiday falls within an employee's vacation.
9 Representatives of the Federal Mediation and Conciliation Service also participated or
sat in on most of the meetings.
10 The articles dealing with jury pay, bulletin boards, and duration had been accepted.
INTERCONTINENTAL ENGINEERING & MFG. CO. 1445
A union-shop proposal was again rejected by the Company, and also the Union's
-overtime demand was rejected. On seniority the Company stated that it would accept
•a 45-day probationary if other matter relative thereto could be worked out satis-
factorily. The Union stated that there would be no contract until the seniority provi-
sions were worked out to the Union's satisfaction. At this meeting the Union took
the position that there were three critical issues, union security, seniority, and over-
time. The Union then offered a modified union shop.
At the meeting on April 25 the parties agreed to some language changes in the
proposal on the grievance procedure. The Company then presented a proposal dealing
with seniority and discharge. On seniority the Union again wanted some recognition
of employees' previous service. The Company proposed that a list of all employees
presently working who were employed in January 1959 be attached to the contract
ranked in the order of their employment with Western Contracting Company,'1 and
that this list would be the seniority ranking for those so employed. The Company
stated that it would prepare and propose some language and maintenance-of-
membership clause. Relative to overtime the Union suggested it might accept time
and one-half on Saturday under certain conditions and the Company then indicated
some proposal might be worked out, but wanted to defer the matter.
By the time of the negotiations on May 14, the Union was willing to accept a
standard modified union shop, and the Company proposed a maintenance-of-
membership clause.12 As to overtime-the Respondent's position was time and one-
half after 40 hours, and time and one-half for holiday work, and the Company would
also be willing to pay time and one-half for work on Sunday if the other union
demands were dropped. The Union's business representative, Jackson, admitted in
his testimony, and the exhibits show, that the parties reached an agreement on a
seniority proposal.13 The parties were still in disagreement on union security, health
and welfare proposals, overtime, and wage rates and classifications.
On May 15 the parties again met for negotiations. At this meeting the Company
offered a maintenance-of-membership clause, overtime after 40 hours with time and
one-half on Sunday, and the Company's current health and welfare program.
On May 20, immediately preceding the strike, the Company stated that it would
accept modification of the language in the maintenance -of-membership proposal, and
the Company also offered holiday credits for overtime. The Company spokesman
indicated that the Respondent might also be willing to modify their health and
welfare plan, but would not accept the proposal by the Union. The Company indi-
,cated that there could be changes on the overtime and wage issue in event the
agreement was reached on the union-security proposal.
On June 12 the parties again met in a negotiation session . Jackson testified that
The basic issues outstanding were union security and overtime. At the July 16 meet-
ing the Union still insisted on their overtime and union -security proposal. The Com-
pany stated that it did not intend to concede on the two points, but in reference to
overtime restated its willingness to count holidays and similar absences in computing
the 48 hours per week . 14 At the negotiating session on October 1, the Company
proposed changes in classifications and wage rates and the Union advised that such
changes were contemplated within 4 to 8 weeks: There was also some discussion on
proposals relating to Saturday and Sunday overtime. The meeting between the
parties on December 11 was extremely general in nature, and there were no concrete
proposals or counteroffers by either party.
In evaluating the course of negotiations , I think it important to emphasize several
factors. As aforestated , the Company met with the Union whenever requested and
also supplied information . The Company submitted numerous counterproposals,
discussed at length the Union 's various proposals , and where the Company remained
adamant on an issue , it gave the reasons for its position . Moreover , the General
Counsel's position that the Company only accepted or acceded to the Union's position
on proposals or provisions already in effect , cannot be . supported by the evidence in
this record. The Company agreed to the Union's request on "call back" pay, offered
a modification on grievance procedure , made a concession on vacation proposals, and
conceded on its initial position relative to seniority , and the parties subsequently
reached an agreement on this issue . Thus, it can be readily seen , even up to this
point, that the Company did make significant concessions during the negotiations.
11 Western Contracting was a predecessor company.
12 Respondent 's Exhibit No. 15.
13 Respondent 's Exhibit No. 13.
11 On September 12 the Company presented a "skeletonized " agreement in an effort to
end the strike . Respondent' s Exhibit No. 21.
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Insofar as the union-security controversy and differences are concerned , the Com-
pany first of all openly admitted that it was opposed in principle to a union shop.
However , at a subsequent meeting the Company announced that it would prepare some
language on a maintenance-of-membership clause, and the Company at a later meeting
then proposed such a clause and restated its offer at the meeting on May 15. This
record further shows that on May 20, the Company informed the Union that it would
even accept modification in its maintenance -of-membership proposal. Again the
Company demonstrated its flexible position and did not remain adamant on this
dominate and highly important clause to both parties. The Union also made conces-
sions on this issue as previously pointed out, but more important for the considerations
here-the Company did likewise.
The Union maintains that the Company refused to bargain on their overtime pro-
posal , as aforestated . It is clear from this record , however, that the Company also
modified its initial position on this matter by proposing time and one-half for holiday
and Sunday work if certain other conditions were met . Furthermore, the Company
stated that there could be other changes in the overtime proposal if an agreement was
reached on union security. This record adequately reflects that in the negotiations
before the strike several significant compromises were made by the Respondent, while
the Union remained adamant in many of its proposals.
This record further shows that the Company also offered wage increases during the
negotiations up to 7ih cents. Therefore, the Company clearly was bargaining with
the Union in its demand that there had to be some economic adjustments in wages.
It is significant to note also that after the strike started the Union did not modify its
position on the issue of overtime and union security .15 The Company, however, made
additional efforts to resolve the impasse. In September , the Company presented a
skeletonized proposal , and again gave the Union an opportunity to meet in meaning-
ful discussions . When the Union rejected this proposal negotiations came to a com-
plete standstill.
Insofar as the background document and testimony by the Respondent 's former
general manager, Carr, is concerned , it is noted that on cross-examination Carr con-
ceded that he had been merely told that the Company would not sign a contract which
would abrogate the rights of management . Carr also testified that Hubert Everist, Jr.,
sometime in February or March, proposed some arrangement which would terminate
the employment of anyone who went on strike but then admitted that after discus-
sions with company attorneys the matter was dropped.16 The company document,
also relied on as background , stated that the Respondent would not sign a standard
contract and that the Company would attempt to substitute other provisions, as
previously detailed herein . In my evaluations here it seems apparent to me that
regardless of what the background evidence and document showed, the prime and
controlling factors are the actions , proposals , and positions taken by the Respondent
during the actual course of the official negotiating sessions here under consideration.
And I wholeheartedly prescribed that the Company's constant efforts to reach an
agreement during the negotiations are abundant proof that its background policies
were definitely sidetracked , and constantly modified with numerous concessions and
compromises on basic initial principles to demonstrate beyond question the Respond-
ent's good-faith bargaining . What is important and overriding here, is what was
specifically done during the meetings between the parties , and viewed in such light
this record clearly shows that the Company continually strived for an agreement.
The Respondent engaged in a course of hard bargaining , and of course the Union
was disappointed when it made concessions but failed to receive a quid pro quo from
the Company. In these respects the Supreme Court has admonished the Board that
it may not, "either directly or indirectly, compel concessions or otherwise sit in
judgment upon the terms of collective-bargaining agreements ." 17 Therefore, the
law is clear that negotiations carried on in good faith, where there has been an open
exchange of ideas, proposals , and counterproposals , and an indication of willingness
to compromise cannot be found to have violated Section 8(a)(5) of the Act simply
because on some of the issues, even though they may be crucial , one or the other of
the parties has been unwilling to recede from its position so as to yield to the conten-
15As previously set forth herein the Company held their prestrike offer ' open for a
few weeks after the strike started It is of course well-settled Board law that after an
impasse has been reached , and a strike begins , the employer is relieved of any duty to
adhere to any previously made concessions and may withdraw such without violating
the Act.
16 Carr did not participate in the negotiations, and he had no knowledge as to wha!
officially transpired between the parties Carr was discharged in May 1963.
37 N.L.R B. v. American National Insurance Co , 343 U S. 395, 404.
LOCAL 1332, INT'L LONGSHOREMEN'S ASSN. AFL-CIO 1447
tions or demands of the other . In the total aspects of this case it appears clear to me
that the Respondent amply demonstrated all of the essential elements in establishing
its good faith, and I do not find that the company procedure and behavior, when
reviewed in the light of the entire record , is sufficient to establish that the Respondent
refused to bargain , and accordingly did not violate Section 8(a)(5) and (1) of
the Act.
As detailed earlier herein several witnesses testified for the General Counsel in
respect to conversations with company supervisors after the beginning of the strike.
The General Counsel contends that statements during these conversations are Section
8(a)(1) violations , and that they also "shed light" with respect to the negotiations.
The statements attributed to Vice President Everist, Senior, were to the effect that he
was against the Company being organized and the union -shop provision because he felt
the Union would then run the plant . It appears to me that Everist was merely
restating the Respondent 's opposition to the union -shop demand made by the Union,
and merely voicing his objections to encroachments on the Respondent 's right to
manage its own business . Furthermore , Everist, Senior, had no connections what-
soever with the official negotiations.
Everist, Senior's, statement to Simmons and Van Dyke that he did not want some
of the strikers back was denied by Supervisor Graves, who was with Everist at the
time of his alleged conversation . It is further noted that even if this remark was made
it was not directed to Simmons and Van Dyke as admittedly Everist told them in the
same conversation that they were good workers and he would like to have them back.
Certainly with such an assurance these remarks cannot be deemed violative.
The conversation between Graves and Van Dyke in February 1964, according to
Van Dyke's own testimony , involved the discussion of union shop and replacements.
At most, Graves' statement was an expression of his opinion that the Company would
not agree to settlement on those terms. Employee Hoover claimed that Graves made
statements that the Company would not sign a contract , and like remarks attributed to
Supervisors McLaughlin and Taylor. However, throughout all these conversations it
is apparent that the supervisors involved are objecting to the admitted company
policy of opposing a strong union -shop clause . The Respondent , in fact, made no
bones about this position , and under the controlling circumstances present here it
had a lawful right in so stating this viewpoint . Moreover , even assuming here that
the statement in these conversations were made and that they contained threats or
other reprisals , such conduct on the part of the supervisors was disconnected and
isolated . It is also noted that the alleged Section 8 (a)( 1 ) conduct occurred after
the parties reached an impasse , and there is also no evidence that it had any effect
upon the course of negotiations.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. The Respondent has not engaged in unfair labor practices as alleged in the
complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this case , it is recommended that the complaint herein be
dismissed in its entirety.
Local 1332, International Longshoremen's Association , AFL-CIO
and John C. Peet, Jr. and Philadelphia Marine Trade Asso-
ciation , Party to the Contract. Case No. 4-CE-13. April 6,
1965
DECISION AND ORDER
On June 19, 1964, Trial Examiner Sidney Sherman issued his
Decision in the above-entitled proceeding, finding that the Respond-
151 NLRB No. 142.