International Shoe Co.

National Labor Relations Board - Board Decisions

Mar 15, 1965

151 N.L.R.B. 693 (N.L.R.B. 1965)

INTERNATIONAL SHOE COMPANY 693
WE WILL cease and desist from giving assistance or support to Marine Officers
Association and will notify our engineers that, due to illegal assistance which
we have rendered to Marine Officers Association, our collective-bargaining
agreement with MOA dated October 1, 1962, is without any force or affect and,
in fact, null and void.
WE WILL NOT in any manner interfere with, restrain, or coerce our engineers
in the exercise of the right to self-organization, to form labor organizations, to
join or assist District 2, Marine Engineers Beneficial Association, AFL-CIO, or
any other labor organization, to bargain collectively through representatives of
their choosing, and to engage in any other concerted activities for the purposes
of collective bargaining or other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of the Act as amended.
All our employees are free to become, or remain or to refrain from becoming or
remaining , members of the above -named or in any other labor organization.
MISSISSIPPI VALLEY- BARGE LINE CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon ap-
plication in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended, after discharge from the Armed
Forces.
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, 4459
Federal Building, 1520 Market Street, St. Louis, Missouri, Telephone No. Main
1-8100, Extension 4142, if they have any questions concerning this notice or com-
pliance with its provisions.
International Shoe Company and Local 1820 , International Long-
shoremen's Association , AFL-CIO. Case No. 14-CA-3327.
March 15, 1965
DECISION AND ORDER
On November 3, 1964, Trial Examiner Joseph I. Nachman issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had not engaged in unfair labor practices as alleged in the com-
plaint, and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel and the Charging Party filed
exceptions to the Trial Examiner's Decision and supporting briefs.
Respondent filed a brief in response to the exceptions filed by the
General Counsel and the Charging Party.
The National Labor Relations Board has reviewed the rulings
of the Trial Examiner made at the hearing and finds that no prej-
udicial error was committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision, the exceptions
and briefs, and the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner.
151 NLRB No. 78.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as
its Order the Order recommended by the Trial Examiner and orders
that the complaint herein be, and it hereby is, dismissed in its
entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This complaint 1 under Section 10(b) of the National Labor Relations Act, as
amended (herein called the Act), heard before Trial Examiner Joseph I . Nachman
at St . Louis, Missouri , on July 22 and 23, involves allegations that International Shoe
Company (herein called Respondent or Company), violated Section 8(a) (5) and
(1) of the Act by refusing to bargain with Local 1820, International Longshoremen's
Association , AFL-CIO ( herein called the Union or Local 1820), the long-recog-
nized bargaining representative of certain warehouse employees of Respondent, con-
cerning the moving of certain warehousing operations from St. Louis to Hannibal,
Missouri , and the refusal to furnish the Union certain information concerning that
move.
The General Counsel, the Union, and Respondent were represented at the hearing
by counsel , and were afforded full opportunity to present evidence , to examine and
cross-examine witnesses , to argue orally on the record, and to submit briefs. Oral
argument was waived . Briefs received from the General Counsel and Respondent
have been duly considered.
Upon the entire record 2 in the case , including the demeanor of the witnesses while
testifying , I make the following:
FINDINGS OF FACT 3
1. THE UNFAIR LABOR PRACTICES ALLEGED
The basic issue presented and litigated in this case is whether by the "management"
provisions of the current contract between the Union and Company, the Union
waived its right to require the Company to bargain with respect to Respondent 's deci-
sion to transfer the warehousing and distribution of certain lines of shoes from
St. Louis to Hannibal , Missouri . To present this issue in its proper setting, consider-
able background concerning the dealings between the parties must be set forth.
A. Background
The Union has for many years represented those employees of the Company
engaged at St. Louis, Missouri , in the warehousing and distribution of Respondent's
products .4 Respondent maintains a number of warehousing facilities in the city of
'Issued May 6, upon a charge filed March 27 and amended May 1 All dates herein
are 1964 unless otherwise noted
2 The General Counsel has filed with me a motion to correct record , which I have
marked "TX Exhibit A ," and now make the same a part of the record herein No
opposition to this motion has been received , and I now grant the same in its entirety
'No issue of commerce or labor organization is presented . The complaint alleges
and the answer admits facts which adequately support both elements. I find the facts
as pleaded.
4 The Union ' s representation goes back to 1938 , when it was known as Delmar Ware-
house Employees Organization . At that time it obtained Board certification . In 1958
Delmar Warehouse Employees Organization was dissolved , the employees affiliated with
International Brotherhood of Longshoremen , AFL-CIO, and the 1938 certification was
amended to run to the latter organization . About 1960 , with the readmission of Inter-
national Longshoremen ' s Association to the AFL-CIO, the latter took over the activities
of the International Brotherhood of Longshoremen , and issued a charter to Local 1820,
International Longshoremen ' s Association , AFL-CIO, and the unit Involved has since been
known by that name. With every change , the contract was amended to reflect the then
name of the Union . It was stipulated that these changes were in name only , and that
the unit has at all times remained the same.
INTERNATIONAL SHOE COMPANY 695
St. Louis, including, inter alia, the so-called 12th Street building, the 15th Street
building, and the Washington Avenue building.5 Since 1948, Respondent has made
a number of changes, moving warehousing and distribution operations both into and
out of St. Louis. Some of these moves increased and some decreased the number
of employees in the units
The contract between the parties in effect from 1954 to 1958 contained the fol-
lowing provision:
ARTICLE X-MANAGEMENT
Section 1. * * *
Section 2. THE COMPANY should have the sole right to decide the proc-
esses of operation, type of machinery and equipment to be used, types and quan-
tity of shoes to be made, quality of material and workmanship required, selling
prices of products, methods of selling and distributing products and personnel
required in supervisory clerical and mechanical operations [Emphasis supplied].?
In 1958, the parties met to negotiate a new contract. Preliminary to these nego-
tiations , the Union submitted proposals providing, inter alia, for (1) an addition to
article X that nothing therein "shall be utilized by the Company to remove work
from the bargaining unit . . .," and (2) the insertion of a new clause binding the
Company not to contract out or remove work from the bargaining unit, nor in any
way impair work availability. During the actual negotiations in 1958, the Union
on a number of occasions demanded that Respondent agree to the foregoing pro-
posals. The Company refused to agree to these, or any similar proposals, on the
ground that the nature of its business was such that it could not permit any restriction
on its right to move warehousing and distribution operations into or out of St. Louis.
The 1958 contract, running to June 30, 1963, as agreed upon and executed, carried
the "Management" article in the same language , set forth above, as it had existed
in the 1954 contract.
As heretofore stated, the Company made certain moves in 1962, to St. Charles and
Hannibal, which resulted in the elimination of 87 jobs in the St. Louis unit. With
respect to these moves, or in contemplation thereof, the Union took the following
action apparently in the order stated: (1) filed a grievance under the contract; (2)
filed a petition for injunction in the United States district court, to enjoin Respondent
from breaching or rejecting the then current collective-bargaining agreement, by
removing any warehousing or distribution operations from the bargaming unit, or
from adversely affecting the job rights and tenure of the employees in the unit; and
(3) filed a charge with the Board alleging a violation of Section 8(a)(1), (3), and
(5) of the Act (14-CA-2775) .
5 Respondent also maintains warehouse facilities at various places outside St Louis,
including , inter elia, St. Charles and Hannibal, Missouri. At these locations the Union
does not represent the employees
O The record shows that prior to the move involved in this proceeding, which occurred
in 1964, the following changes occurred in warehousing and distribution operations of
the Company, with the indicated increase or reduction in the size of the St Louis unit:
1. 1952, a move from St. Louis to Hannibal resulted in a reduction of 10 jobs
2. 1955, a move from Manchester, New Hampshire, to St. Louis, which added
16 jobs.
3. 1957, a move from St Charles to St. Louis, which added 134 jobs.
4 Also in 1957, 3 separate moves from St. Louis to St. Charles, took 24 jobs
from the unit.
5. In 1958, separate moves from St Louis to St. Charles, and from St. Louis to
Atlanta, Georgia, reduced the unit by 29 jobs
6. In 1960, a move from Manchester, New Hampshire, to St Louis, added 10 jobs.
7. In 1961, the Atlanta operation was closed, and the work moved to St. Louis,
which added 20 jobs.
8. In 1962, separate moves from St. Louis to St. Charles and Hannibal, eliminated
87 jobs.
The decision regarding these moves were made by Respondent unilaterally, but it seems
that in each instance the Union was told that such a decision had been made. Except
for the 1962 move, the Union filed no grievance, nor did it so far as the record in-
dicates, complain to the Company regarding the same.
7 The underscored words are the ones on which decision in this case turns.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The grievance, which reached the stage of arbitration, was heard by Arbitrator
Peter M. Kelliher on May 2, 1962.8 He concluded (by decision issued May 16,
1962), in substance, that no provision of the contract prohibited management from
effecting such moves unilaterally, but on the contrary the management clause (arti-
cle X), granted the Company `'the sole right to decide" the methods of "distributing
products," and therefore, the 1962 moves did not constitute a violation of the contract
then in effect between the parties.°
With respect to the charge filed by the Union in 14-CA-2775, the Regional Direc-
tor, on June 28, 1962, refused to issue a complaint "because the parties, pursuant to
agreement, have arbitrated the dispute on its merits; the arbitration proceeding
appears to have been fair and regular; and the arbitrator's decision does not appear
to be clearly repugnant to the purposes and policies of the Act." On appeal, the
General Counsel on August 24, 1962, sustained the Regional Director, and pointed
out that the arbitrator's award "constituted in effect a finding that the Union had
granted the Company the right to act unilaterally in this area."
Prior to the expiration of the 1958 contract, on June 30, 1963, the parties negoti-
ated for a new contract, over a period of 2 or 3 months. During this period the
parties had approximately 12 meetings, many of which were attended by a repre-
sentative of the Mediation Service At virtually every meeting there was discussed
one or more proposals by the Union restricting Respondent's right to transfer work
out of the unit.10 The parties are in accord that the Union pressed vigorously for
such a provision,11 and that the Company, with equal vigor, insisted that it could
not live with a clause designed to prevent it from freely shifting work into or out of
St. Louis as its business judgment might deem appropriate . Because this issue was,
as one witness put it, "the crux of the negotiations ," the Company made some coun-
terproposals, including at one point a form of severance pay in the event employees
were displaced because of lack of work, but these were rejected by the Union. At a
meeting in late June, just before the then-current contract would expire, the Company
made a package proposal, which included a provision for a guaranteed annual wage,
which had not theretofore been in the contract, to a maximum of 329 employees, on
condition that the Union withdraw all demands not previously accepted by the Com-
pany. The Union in due course agreed to this and a 5-year contract was concluded.
In the contract as executed by the parties, the language of section 2 of the "Manage-
ment" provision remained the same as it was in the 1958 contract, except that the
8 At the arbitration hearing the parties stipulated the following Issue.
Does the action of the Company ( contemplated or achieved ) in transferring work
done in Its [St. Louis warehousing and distributing operations] where the employees
are represented by the ILA, Local 1820, to other warehouses operated by the Com-
pany where other unions have bargaining rights, constitute a violation of any section
of the contract in effect between the Company and ILA Local 1820?
Counsel for the Union did state at the arbitration hearing:
. . . we are not arbitrating here the question as to whether the Company should
have bargained over this matter with LL A. Local 1820 That is not the subject
of this arbitration . That is a matter within the coverage of the National Labor
Relations Act.
6 No action seems to have been taken in the district court proceeding , and the same
was on May 3, 1962, dismissed by the plaintiff "with prejudice at Plaintiff ' s costs."
30 Proposals of this nature varied in language during the negotiations. One such
proposal was as follows:
The Company shall not remove merchandise or lines of shoes from the warehouses
covered by this contract for warehousing at other facilities maintained by it or by
contract or subcontract , and the Company shall not direct merchandise or types or
lines of shoes warehoused by past practice in the warehouses covered by this con-
tract to other facilities for warehousing, or by contract or subcontract
This proposal carried a further provision giving the Union certain remedies in the event
of a breach thereof by the Company.
"As stated by Union Attorney Gruenberg, who participated in many of the negotiat-
Ing meetings , and who testified as a witness in this proceeding , he reminded the Com-
pany of the moves from St. Louis to Hannibal and St. Charles in 1962; that the Union
was much aggrieved by this action ; that it could not trust the Company to keep the
work In St. Louis ; and that a restrictive clause of this nature "was a must"
INTERNATIONAL SHOE COMPANY 697
word "made" was changed to "handled." The record does not reflect the reason for,
or the circumstances which brought about this change, or what the change was
intended to achieve.12
Union Attorney Gruenberg, who was the Union's chief spokesman at the meeting
in late June, testified that when the Company presented its package proposal, above
referred to, the Union was reluctant to accept, notwithstanding that the provisions
were generally acceptable, because it did not restrict Respondent's right to transfer
work out of St. Louis, and thus out of the unit, that during the discussions on this
proposal a negotiator on behalf of the Union asked if the Company had any intention
of moving any work out of the unit, and that Kraus, Respondent's Director of
Industrial Relations, replied that the Company had no such intention and that the
Union would have to rely upon Respondent's good faith in that regard. According
to Gruenberg, further discussion of the Company's package proposal was put over
to a future meeting to give the Union time to consider the matter, and at the future
meeting the Union again asked whether the Company would agree not to move work
out of St. Louis, as it had done in 1962; that the Company again stated that it had
no intention of moving work out of St. Louis; and that in reliance upon Respondent's
announcement, the Union accepted the Company's package proposal, thus concluding
an agreement. Gruenberg admitted, however, that the Union's proposal to change
the "Management" provisions of the contract was one of the proposals which it
agreed to and did abandon in exchange for Respondent's package proposal; that the
written contract contains the entire agreement which the parties concluded, and accu-
rately reflects all agreements reached by the parties during the contract negotiations.
Although Kraus was very unclear as to details, he admitted that he told the union
negotiators that Respondent had no moves in mind, which, he testified, was a fact.
While Kraus claimed that neither he, nor any negotiator on behalf of management
had the authority to bind the Company not to move operations out of St. Louis, the
fair burden of his testimony seems to be that he did not intend, by his admitted state-
ment to the Union, to agree or to commit the Company not to move operations out
of St. Louis at some future date, should the Company then regard such a move as
necessary or desirable.13
B The current facts
Early in 1964, Imperiale, president of the Union, heard rumors that Respondent
was contemplating some moves in its warehousing and distributing operations. On
March 5 he met with Thomas, Respondent's general manager of warehouse opera-
tions, and inquired whether the rumors were true. Imperiale admitted that Thomas
informed him that some moves were under consideration, but that no decision had
been reached as the matter had to be approved by higher operating management,
and ultimately by Respondent's Board of Directors. Thomas agreed to advise the
Union if a decision was made to move any St. Louis operations.14
On March 13 the Union's executive committee, which included Imperiale, met
with representatives of management to discuss certain grievances then pending.
Thomas was not present at this meeting. After discussing the grievances and agree-
ing to put further consideration of them over to a meeting when Thomas could be
present, Imperiale asked General Superintendent Bade if there was any truth to the
rumor that the Company contemplated moving certain warehousing operations.
Bade replied that there was no truth to the rumor and that management had no
intention of making such a move.15
12This section of the 1963 contract, as executed by the parties, reads as follows:
Section 2. The Company shall have the sole right to decide the process of opera-
tion, type of machinery and equipment to be used, types and quantity of shoes to
be handled, quality of material and workmanship required, selling prices of prod-
ucts, methods of selling and distributing products and personnel required in super-
visory, clerical and mechanical operations.
is For reasons hereafter stated, I find it unnecessary to decide whether there is any
material conflict in the testimony of Gruenberg on the one hand, and Kraus, on the
other, or how such conflict, if it exists, should be resolved
14 Imperiale claims that in this conference he told Thomas that the Union wanted the
Company to negotiate about any contemplated move and felt sure some agreement satis-
factory to the parties could be reached, and that Thomas agreed to negotiate. Thomas
denied that Imperiale made any request for bargaining at this conference. In view
of the conclusions I reach, it is unnecessary to resolve this conflict.
15 Bade did not testify and this testimony of Imperiale stands undenied.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to prior arrangements , the parties met again on March 16, with both
Thomas and Kraus present for Management . After disposing of the grievances car-
ried over from the March 13 meeting , Thomas announced that a decision had been
made by management to transfer the men's division from the 12th Street warehouse
where it was then housed , to the 15th Street warehouse , and to move that portion
of the women 's division then housed at the 15th Street warehouse to Hannibal, Mis-
souri , to be effectuated at the earliest possible time . Thomas testified that the move
had been under consideration for sometime , and that various surveys had been made
and data collected bearing on the question , and that this had taken some time. He
further testified that the decision to move was a final one approved by top echelon
management on March 9, and was subject to no contingency . Admittedly there was
no bargaining with the Union on the question whether or not the move should be
made. Imperiale , when Thomas announced the decision to move, pointed to Bade's
statement at the meeting of March 13 , protested the Company 's right to make such
a move without prior negotiations with the Union , and asked Thomas what provision
of the contract he relied upon to support the Company 's action. Thomas referred
to the "Management" provision set out above . In the course of discussion Imperiale
expressed the opinion that moving the women 's division from St. Louis to Hannibal
would probably result in the loss of about 100 jobs to the Union . Thomas agreed
that this was a reasonably accurate estimate . Imperiale then asked Thomas, "what
would it take on the part of the Union and its membership to keep the women's divi-
sion here , not to move it out of town ." 16 Thomas replied that he would need time
to check his figures before he could answer the question . For that purpose, the
parties adjourned to March 20.
At the meeting of March 20 , Union Attorney Souders was present along with its
executive committee . Thomas announced that to justify retention of the women's
division at the 15th Street warehouse would require the Union to take a cut of 94.1
cents an hour . 17 Souders asked how the figure was computed , but Thomas refused
to say other than it was his own computation Souders asked that a C P.A., or the
Union's committee , be permitted to audit the books to verify the figure reached by
Thomas. This , Thomas admittedly refused. Imperiale then asked whether the Com-
pany would guarantee not to move the women 's division out of St. Louis if the Union
accepted the 94 . 1-cent cut . Thomas stated he could give no such guarantee , because
money was not the only factor involved in the decision to make the move.18 At this
point, the meeting adjourned to March 27 to permit the Union to consider the mat-
ters involved at its membership meeting to be held March 25.
The meeting of March 27 was short . The Union advised Respondent that the
94.1-cent figure was not acceptable . Souders again asked for an opportunity to
examine Respondent 's book, which Thomas refused , saying that the Union would
have to accept the accuracy of his figures . After a short recess, Thomas suggested
that the parties discuss the mechanics of the move from 12th Street to 15th Street,
and the effect thereof upon the employees . The Union refused, saying that it was
not prepared to discuss such matters at the time . The meeting then concluded and,
on the same day, the Union filed the original charge herein.
Early in April the parties met again to discuss the transfer of the employees from
the 12th Street warehouse to 15th Street . The Union made certain proposals which
Respondent accepted , and that move , which had not been completed at the time of
the hearing , is proceeded in accordance with the agreements reached. The move
of the women 's division to Hannibal began early in April and was completed during
that month. Employment in the unit represented by the Union was about 500 during
June 1964 , compared to about 700 in June 1963 , when a part of the women 's division
was in St. Louis.
10 The foregoing quote is taken from Imperiale ' s testimony . Respondent contends that
Imperiale added to the foregoing statement , "Are we talking a dollar an hour " Tell us,
and if we can ' t meet it we will have to tell you to move " While Imperiale did not
deny having made the additional statement attributed to him by Respondent , I deem it
unnecessary to make a finding in that regard.
17 When asked where this reduction , if agreed to, would be applied , Thomas stated it
would have to come from vacations , sick leave , and wages
"Thomas mentioned the following additional factors, among others , that. (1) The
move would free an entire building which the Company could then dispose of , and that
it was easier to sell a building in St Louis than one in Hannibal , ( 2) with part of the
women ' s division in Hannibal , where it had been for some time prior to the move, many
orders had to be filled partly from one point and partly from the other , and customers
were complaining about increased transportation costs occasioned by such split shipments.
INTERNATIONAL SHOE COMPANY 699
C. Contentions and concluding findings
Section 8(a)(5) of the Act imposes upon an employer the obligation to bargain
collectively with the representative of his employees, and Section 8(d) defines the
term "bargain collectively" as imposing the obligation:
. to meet at reasonable times and confer in good faith with respect to wages,
hours, and other terms and conditions of employment, or the negotiation of an
agreement, or any question arising thereunder .... [Emphasis added.]
Under applicable decisions of the Board, the moving of the women's division from
St. Louis to Hannibal affected "terms and conditions" of employment of the St Louis
employees who, prior to the move, were performing the work they were thereafter
deprived of. Town & Country Manufacturing Company, Inc., et al, 136 NLRB 1022;
Adams Dairy, Inc., 137 NLRB 815; Fibreboard Paper Products Corporation, 138
NLRB 550.19 Moreover the duty to bargain which the Act imposed on employers
and unions alike, is a continuing one, and the parties are at all times obligated to dis-
cuss any bargainable subject upon request unless they have reduced [their] agree-
ment on that subject to writing or unless [they] have agreed in writing not to bargain
about it during the term of the contract" (The Jacobs Manufacturing Company, 94
NLRB 1214, 1221).20 However, where the parties have as result of their bargaining
entered into a contract which contains a provision dispositive of a particular issue,
neither party violates his bargaining obligation by refusing to bargain further on the
issue upon which the parties have so agreed. In such a case the parties are said to
have "bargained away" or "abandoned" all positions contrary to their agreement.
As the Board said in International News Service Division of the Hearst Corporation,
113 NLRB 1067, 1071-1072:
... to hold otherwise is to encourage one party to a bargaining agreement to
resort to Board processes to upset the terms of a contract which the other party
to the agreement had every good reason to believe had been stabilized for a
definite period.
Whether the parties have in fact reached agreement on a particular issue is, of course,
a question that must be determined on the specific facts of each case. On the facts
of the instant case, I find and conclude that the Union has agreed that during the
term of the current contract, the employer could unilaterally transfer work out of
the St. Louis unit. I base this conclusion on the following factors:
1. The language of the management clause, vesting in the employer "the sole right
to decide the . . . methods of selling and distributing products," while not entirely
clear, is at least susceptible to the interpretation that the movement of the warehous-
ing and shipping of shoes was a matter that the parties had agreed should be left
to management.21
2. The various changes made by the Company in its operations prior to 1962 were
with the apparent acquiescence of the Union, and are indicative of the fact that at
least up to that point the Union regarded such moves as a matter of management
prerogative.
3. In 1962 the issue whether such a move was a matter of management prerogative
was submitted by the parties to arbitration-the forum agreed upon by them for the
resolution of disputes involving interpretation of the contract-and resulted in an
arbitration decision that such a move did not violate the contract between the parties,
and that the "Management" provision in the contract vested in the Company the
right to make such moves unilaterally. In declining to issue a complaint on the
charge filed in 1962, the General Counsel agreed that the arbitration award was in
effect "a finding that [by the contract provision involved] the Union had granted the
Company the right to act unilaterally in this area." Why the same contract provi-
sion should have any different effect with respect to the 1964 move, I am unable to
comprehend.
4. During the 1958 and the 1963 negotiations, the Union insisted upon contract
proposals restricting Respondent's right to move work out of St. Louis, but was
unable to obtain Respondent's agreement to such a provision. Such proposals were
entirely unnecessary if the prior contract provisions did not vest these rights solely
in management. Ultimately, the Union withdrew all of its proposals, and in 1963
' While those cases involved subcontracting, the principles there established apply
with equal force to the moving of unit work or a portion thereof. Cf. Royal Plating
and Publishing Co., Inc., 148 NLRB 545, Trial Examiner's Decision, footnote 15
21 Order enfd 196 F. 2d 680 (CA. 2).
21 The slight change in the language of this provision made in the 1963 contract re-
quires no different interpretation.
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreed to the "package proposal" which Respondent had advanced, thus abandoning,
apparently in exchange for other terms granted by Respondent, its efforts to obtain
restrictions on the Company's rights to make unilateral changes in its warehousing
operations.
The foregoing factors, I find and conclude, demonstrate that the Union clearly
and unmistakably, for the duration of the current contract, bargained away its right
to require the Company to negotiate with the Union concerning the movement of
unit work from St. Louis, and vested in management the right to determine such ques-
tion unilaterally.22 Having the right to unilaterally determine whether or not the
move should be made, it was also absolved from the duty of producing records to
show how the figure of 94.1 cents per hour was arrived at.23 Accordingly I shall
recommend that the complaint herein be dismissed in its entirety.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section 2(2) of the Act, and
is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. The Union is the collective-bargaining representative of Respondent's employees
engaged in its distribution and warehouse operations in the city of St. Louis, Missouri.
4. By refusing to bargain with the Union concerning the moving of the women's
division from St. Louis to Hannibal, or by refusing to give the Union information as
to how the 94.1-cent-per-hour figure was reached, Respondent did not engage in
unfair labor practices within the meaning of Section 8(a) (5) of the Act.
5. The complaint herein should be dismissed.
RECOMMENDED ORDER
Upon the entire record in this case, and pursuant to Section 10(c) of the Act, I
recommend that the complaint herein be dismissed in its entirety.
22 The Union 's contention that it had a promise from Respondent that the latter had
no intention of moving work out of St. Louis, and for that reason accepted the latter's
proposal , requires no different result . In the first place, I believe the fair inference
from all the evidence is that Respondent was merely saying that no moves were then
in contemplation , and that it was not committing itself not to make such moves In the
future. Otherwise Respondent ' s resistance to the Union 's proposals in that regard makes
no sense. Secondly , the rights of the parties must be determined from agreements which
they reached , and not from some obscure factor which motivated the Union's decision.
This is particularly true in the light of Gruenberg 's testimony that the written contract
contains all agreements reached, and accurately reflects those agreements.
rs With respect to the effect of the moves on the employees in the St. Louis unit, the
testimony shows that the Company has bargained with the Union, and has proceeded
in accordance with the agreements reached with respect thereto.
Seattle and King County Carpenters District and Vicinity, and
Harry L . Carr and Donald E. Johnson , its agents I and Lathers
Local 104, Wood , Wire and Metal Lathers International, AFL-
CIO 2 [Gordon Brown , Inc:]. Case No. 19-CD-94. March 15,
1965
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10(k) of the National
Labor Relations Act, as amended, following a charge filed by Lathers
1 The name of the charged Union and its agents appear as amended at the hearing.
s The name of the Charging Union appears as amended at the hearing.
S Herein called the Employer. The Employer was not represented by counsel and took
no formal position at the hearing. One of its owners and officers, however, appeared as a
witness on behalf of Lathers.
151 NLRB No. 77.