Jacobs Manufacturing. Co.

National Labor Relations Board - Board Decisions

Aug 7, 1962

138 N.L.R.B. 35 (N.L.R.B. 1962)

JACOBS MANUFACTURING CO. 35
"between the Company and United Steelworkers of America, and Local Unions,
No. 1.123, 2173 and 2730, said International Union and local unions, collectively,
being referred to . . . as the Union"; and that the Respondent was, pursuant to that
contract, recognizing both the International Union and its Local No. 1123 as the
bargaining agent for the employees involved. A further purpose of the motions and
the stipulations is to establish correctly the fact that the demand for wage data made
upon the Respondent in 1960 was made in the name of Local Union No. 1123;
that the refusal to furnish such wage data was also a denial of information to that
Local Union; and that administration of the multiplant collective-bargaining agree-
ment is carried on on a local basis in the Canton and Gambrinus, Ohio, plants by,
both the International Union and its Local No. 1123.
To the extent that the stipulations of the parties are tantamount to a motion to
amend the complaint to reflect the above facts, it is hereby granted and the complaint
is hereby amended accordingly.
To the extent that the stipulation of the parties request modification of the out-
standing Intermediate Report, I hereby make the following findings:
1. United Steelworkers of America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
2. On about July 31, 1942, United Steelworkers of America, AFL-CIO, was.
certified by the National Labor Relations Board as exclusive bargaining representa-
tive for the employees in the appropriate bargaining unit.
3. The collective-bargaining agreement in effect at all times material to this
proceeding has been and is now administered on a local basis in the Canton and
Gambrinus, Ohio, plants by both the International Union and Local No. 1123.
4. United Steelworkers of America, AFL-CIO, collectively with its Local No.
1123, by virtue of Section 9(a) of the Act, has been and is now the exclusive repre-
sentative of all employees in the appropriate bargaining unit for the purposes of
collective bargaining.
Pursuant to the stipulations of the parties I hereby also make the following modi-
fication in the conclusions of law in the Intermediate Report:
United Steelworkers of America, AFL-CIO, collectively and with its Local No.
1123, was on July 18, 1960, and at all times since has been, the exclusive representa-
tive of all employees in the aforesaid bargaining unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
Also pursuant to the stipulations of the parties, I hereby amend the recommenda-
tions in the Intermediate Report as follows:
1. Cease and desist from:
(a) Refusing to bargain collectively with United Steelworkers of America, AFL-
CIO, and its Local No. 1,123, their agents or representatives, as the exclusive repre-
sentative of all employees in the appropriate bargaining unit with respect to rates of
pay, wages, hours of employment, or other conditions of employment, by refusing
to furnish to said Unions or their agents or representatives information and data con-
cerning time studies and methods used for establishing wage rates.
Consistent with the foregoing I also hereby amend the recommendation for affirma-
tive action contained in the Intermediate Report to read as follows:
2. Take the following affirmative action which I find -will effectuate the policies of
the Act:
(a) Upon request, furnish to United Steelworkers of America, AFL-CIO, and
its Local No. 1123, their agents and representatives, time studies and other wage
data and information, including manuals and statements of procedures, used by the
Company in classifying or evaluating jobs or fixing rates of employees in the bar-
gaining unit.
Jacobs Manufacturing . Co. and International Union, United
Automobile, Aircraft and Agricultural Implement Workers
of America, UAW, AFL-CIO. Case No. 1-CA-3365. August 7,,
1960
DECISION AND ORDER
On January 24, 1962, Trial Examiner Thomas A. Ricci issued his
Intermediate Report herein, finding that the Respondent, Jacobs,
138 NLRB No. 6.
662353-63-vol. 138-4
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manufacturing Co., had engaged in and was engaging in certain un-
fair labor practices within the meaning of Section 8(a) (3), (5), and
(1) and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the Respondent, the General Counsel, and the
Charging Party filed exceptions to the Intermediate Report and briefs
in support thereof.
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 [Members Rodgers, Fanning, and
Brown].
The Board has reviewed the Trial Examiner's rulings and finds no
prejudicial error.' The rulings are affirmed. The Board has con-
sidered the Intermediate Report, the exceptions and briefs, and the
entire record in this case,2 and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations, with certain additions
to the remedy as hereafter set forth.
TILE REMEDY
Having found that the Respondent has engaged in and is engaging
in certain unfair labor practices, we shall order that it cease and desist
therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
We agree with the Trial Examiner that the Respondent, because
there has been a cutback in the number of jobs that existed at the time
of the strike, could not have taken back all of the striking employees
when they offered to return on June 18. Which of the striking em-
ployees could have been reinstated cannot be determined on this record,
but can be determined at the compliance stage of the proceedings.
Subsequent to June 18, the Respondent might have had other openings
for discriminatees who could not have been employed on June 18.
The filling of these openings, if any, can also be left for the compliance
stage of the proceedings. Under these circumstances, we shall order
the Respondent to offer those employees listed on Appendix A at-
tached hereto, immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their seniority
and other rights and privileges, dismissing, if necessary, all employees
hired since the commencement of the strike. If there is not then suffi-
cient work available for the remaining employees and those to be
offered reinstatement, all available positions shall be distributed among
them without discrimination against any employee because of con-
'As noted in the Respondent 's exceptions , the Respondent Is a New Jersey corporation
and not a Connecticut corporation as stated by the Trial Examiner in his Intermediate
Report
2 As the record , exceptions , and briefs adequately set forth the issues and positions of
the parties, the Respondent 's request for oral argument is denied
JACOBS MANUFACTURING CO. 37
,certed activities, in accordance with the system of seniority or other
nondiscriminatory practice heretofore applied by the Respondent in
the conduct of his business. The Respondent shall place those em-
ployees, if any, for whom no employment is available after such dis-
tribution, on a preferential list, with priority in accordance with such
system of seniority or other nondiscriminatory practice heretofore
applied by the Respondent in the conduct of business, and thereafter
offer them reinstatement as such employment becomes available and
before other persons are hired for such work.
We shall also order the Respondent to make whole those employees
listed in Appendix A against whom it discriminated for any losses
they may have suffered because of the Respondent's discrimination,
by payment to each of them of a sum of money equal to that which he
would have earned as wages from the date of such discrimination to
the date of the offer of reinstatement or placement on a preferential
list, as the case may be, less his net earnings during said period, the
backpay to be computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB 289.
In view of the nature, variety, and extent of the unfair labor prac-
tices committed, the Respondent shall be ordered to cease and desist
from infringing in any manner upon the rights of employees guar-
anteed by Section 7 of the Act.
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 the Respondent, Jacobs Manufac-
turing Co., West Hartford, Connecticut, its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Refusing to reinstate or otherwise discriminating against em-
ployees because of their exercise of the right to strike, to self-
organization, or to join labor organizations.
(b) Refusing to bargain collectively with International Union,
United Automobile, Aircraft and Agricultural Implement Workers
of America, UAW, AFL-CIO, and its Local 379, as the exclusive
bargaining representative of all employees of the Respondent Com-
pany in the appropriate bargaining unit with respect to rates of pay,
wages, hours of employment, and other terms and conditions of
employment.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist International Union, United
Automobile, Aircraft and Agricultural Implement Workers of Amer-
ica, UAW, AFL-CTO, and its Local 379, or any other labor organi-
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
zation, to bargain collectively through representatives of their own
choosing and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, as guaranteed
in Section 7 of the Act, 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 em-
ployment, as authorized in Section 8(a) (3) of the Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action designed to effectuate the
policies of the Act :
(a) Upon request bargain collectively with International Union,,
United Automobile, Aircraft and Agricultural Implement Workers.
of America, UAW, AFL-CIO, and its Local 379, as the exclusive
representative of all employees in the appropriate unit, and embody
any understanding reached in a signed agreement.
(b) Offer to all employees listed on the attached Appendix A, im-
mediate and full reinstatement to his or her former or substantially
equivalent position, without prejudice to his or her seniority or other
rights and privileges previously enjoyed, in the manner set forth in
the section of the Decision and Order entitled "The Remedy."
(c) Make whole each of the employees listed on the attached Ap-
pendix A, for any loss of pay they may have suffered by reason of
the discrimination against them in the manner set forth in the sec-
tion of the Decision and Order entitled "The Remedy."
(d) Preserve and, upon request, make available to the Board or-
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all records necessary to analyze the amounts of backpay due
under the terms of this Order.
(e) Post at its plant in West Hartford, Connecticut, copies of the
notice attached hereto marked "Appendix B." 3 Copies of said notice,
to be furnished by the Regional Director for the First Region, shall,
after being duly signed by an authorized representative of the Re-
spondent, be posted by the Respondent immediately upon receipt
thereof, and be maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to be sure that said notices are not altered, defaced,.
or covered by any other material.
(f) Notify the Regional Director for the First Region, in writing,
within 10 days from the date of this Order, what steps it has taken
to comply herewith.
3 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 "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
JACOBS MANUFACTURING CO.
APPENDIX A
39
Anderson, Arthur Gibilisco, Salvatore Morrow, Charles
Appruzzese, Philip Gilberto, Carmelo Mascola, Daniel
Ayers, Wesley Giulini, Bruno Massenberg, Elvin
Back, John Godlewsky, Henry Marci, Joseph
Beaupre, Edwin Gordon, Morris Martin, Edward
Beaupre, Lionel Haberski, Joseph May, Vincent
Bedore, Edmond Halenda, Benjamin Mazzarella, Ralph
Bobrow, Jack Hamilton, William McCrary, Reuben
Broawski, Theodore Harker, Michael McGarrah, Curlie
Bostleman, Lena Hart, Douglas Miano, Anna
Botticello, Charles Havron, Joseph Miano, Salvatore
Botticello, Michael Heap, Harold Michaud, Benjamin
Bramande, Jean Hewitt, Teresa Michaud, Claudia
Bramante, Salvatore Hull, Lawrence Michaud, Levite
Braun, Robert Hultgren, Harry Migliore, Thomas
Bressan, Ida Janse, Hank Millman, William
Bressan, John Javarauckas, Frank Misseri, Santo
Bujak, Stanley Jednorowicz, Sophie Mitchell, George
Calabrese, Helen Jeske, Albert Montana, Lauretta
Cappa, Francis Johnson, Bror Moore, Horace
Carrier, Jean Johnson, Orpha Moriarity, James
^Cervera, Salvadore Johnson, Wilton Motolo, Vincent
Chester, Walter Junno, Samuel Mullen, James
Church, Howard Khaghigian, John Nastos, Michael
,Ciccaglione, George Koonze, Edward Nelson, Nils
Ciccaglione, Robert Kowarik, Joseph Newfield, John
Comeau, Joseph Krukoski, Bernard Norbut, Albert
Cope, Edward Kurkul, Edward Nordmark, Margaret
Cormier, Wilfred Laiuppa, Joseph Novellino, John
,Crombie, William Lang, Gladys Novellino, Joseph
,Czepiel, Joseph Lann, Gustave Odelius, Oscar
Daniewicz, Walter Lapointe, Peter Odelius, Svea
Decorleto, Blacie Latina, Anthony Ohanesian, Berg
Deproto, Sebastian Leclerc, Louis Ouellette, Norman
Dias, Silvano Lee, Darnella Owen, George
Dickinson, Charles Lepine, Louis Pappalardo, Dominick
Didonato, Carmelo Levesque, Gaston Paro, Albert
(Gerry) Lindholtz, Werner Paulauskas, Albert
Dignoti, Paul Lionelli, Vincent Pauski, Edmund
Emanuelson, Axel Lisella, Ned Peltzer, Herman
Ferraris, Henry Little, Walter Pepin, Homer
Festa, Michael Litwin, Edward Pestritto, Rosario
Fiengo, Ferdinand Longden, Warren Petrauskas, Mykolas
Foley, William Lore, Epifano Pillion, Kathleen
Forbes, Elizabeth Lukman, Stef an Poitras, Albert
Forccuci, Joseph Lundberg, Victor Poitras, James
Fraini, Nicola Lundeen, Gunnar Pollard, Edward
Franzo, Salvatore Madigan, John Preston, Sarah
French, Eugene Magner, Donald Puzzo, Sebastian
Friberg, George Magnotta, Anthony Quinlivan, William
Garilli, Charles Malm, Sigrid Racine, Ernest
Gerundo, Rita Marotta, John Ramsey, Raymond
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ravizza, Andrew Schubert, Otto Thone, Martin
Regan, Martin Seymour, Julia Thorstenson, Anna
Rinaldo, James Shook, John Thorstenson, John
Roby, Marcel Shook, Peter Tozzi, Peter
Roman, Walter Shugay, Stephen Tranchina, Frank
Roussell, Adelard Sinisgalli, Joseph Traska, Michael
Rowe, John Smith, Oscar Trymbulak, John
Rucci, Anthony Sobol, Roman Turner, Wayman
Russell, Percy Souza, Mary Valentine, John
Sales, James Statley, Thomas Valeski, Stanley
Santomasso, Michale Stanford, Louie Vallera, Joseph
Santomenno, Martin Starses, Frank Vendetti, Carmella
Sanzo, Victor Stepien, Frank Viera, Edward
Sargis, Asis Swan, Eldon Weinstock, Jacob
Sargis, Jack Swenkowski, Henry Wilen, Carl
Saur, Ernest Tavashanjian, Michael Wood, Edward
Scavullo, Anthony Temkin, Joseph Woodman, Edward
Schofield, Earl Thompson, Charles Zielenski, Anthony
APPENDIX B
NOTICE TO ALL EAIPLOYEEs
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, we hereby notify our employees that :
WE WILL NOT discourage membership by any of our employees
in International Union, United Automobile, Aircraft and Agri-
cultural Implement Workers of America, UAW, AFL-CIO, or
in its Local 379, or in any other labor organization, by refusing
to reinstate or in any other manner discriminating against our
employees in regard to their hire, tenure of employment, or any
other term or condition of employment, except as authorized by
Section 8 (a) (3) of the National Labor Relations Act, as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form, join, or assist any labor organization, to join or
assist International Union, United Automobile, Aircraft and
Agricultural Implement Workers of America, UAW, AFL-CIO,
or its Local 379, to bargain collectively through representatives
of their own choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protec-
tion, and to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3) of the National Labor
Relations Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
JACOBS MANUFACTURING CO. 41
WE WILL, upon request, bargain collectively with International
Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, UAW, AFL-CIO, and its Local 379, as the
exclusive bargaining representative of all employees in the fol-
lowing bargaining unit with respect to rates of pay, wages, hours
of employment, and other conditions of employment, and, if an
understanding is reached, embody such understanding in a signed
agreement. The appropriate unit is :
All hourly rated production and maintenance employees
but excluding executives, general foremen, foremen, assistant
foremen, watchmen and guards, office employees, count sta-
tion clerks, timekeepers, cafeteria employees, medical em-
ployees, and temporary employees and employees with au-
thority to hire, promote, discharge, or discipline, and all
supervisors as defined in the Act.
WE WILL offer to the employees who were unlawfully refused
reinstatement at the end of the strike in June 1961 immediate and
full reinstatement to their former or substantially equivalent po-
sitions, without prejudice to their seniority and other rights and
privileges, dismissing, if necessary, all employees hired since the
commencement of the strike, and we will make them whole for
any loss of earnings they may have suffered as a result of the
discrimination against them.
All of our employees are free to become, remain, or refrain from
becoming or remaining members of any labor organization.
JACOBS MANUFACTURING Co.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office, 24 School Street, Boston 8, Massachusetts, Telephone Number,
Lafayette 3-8100, if they have any questions concerning this notice
or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed on December 5, 1960, on behalf of International Union,
United Automobile, Aircraft and Agricultural Implement Workers of America,
UAW, AFL-CIO, against Jacobs Manufacturing Co., herein called the Company
or the Respondent , the General Counsel issued a complaint on March 30, 1961,
alleging that the Respondent had engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and ( 5) and Section 2(6) and (7)
of the National Labor Relations Act, 61 Stat. 136, herein called the Act. The
Respondent filed an answer denying the commission of any unfair labor practices.
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A hearing was held in Hartford, Connecticut, before Trial Examiner Thomas A.
Ricci on various dates between May 1 and July 18, 1961. All parties were repre-
sented by counsel and were afforded full opportunity to examine and cross-examine
-witnesses, to introduce evidence, to present oral argument, and thereafter to file
'briefs as well as proposed findings of fact and conclusions of law. Briefs have been
received from all parties.
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 THE RESPONDENT
The Respondent is a Connecticut corporation with its principal office and place
,of business in the city of West Hartford, in the State of Connecticut, where it is
engaged in the manufacture, sale, and distribution of chucks, work holder chucks,
drill and tap chucks, lathe collet chucks, and related products. The Respondent
also maintains and operates a plant at Clemson, South Carolina, and is a wholly
owned subsidiary of Chicago Pneumatic Tool Co. In the normal course of its
business the Respondent causes large quantities of materials used by it to be pur-
chased and transported in interstate commerce from and through various States
of the United States other than the State of Connecticut and causes substantial
-quantities of said products to be sold and transported from its plant in interstate
commerce to States of the United States other than the State of Connecticut. During
the past 12 months the Respondent has manufactured, sold, and shipped from its
West Hartford plant finished products valued in excess of $50,000 to points outside
the State of Connecticut. I find that the Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the
policies of the Act to exercise jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, UAW, AFL-CIO, and its Local 379, herein together referred
to as the Union, are labor organizations within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Bargaining Unit and Majority Status
The complaint alleges and I find that all hourly rated production and maintenance
'employees at the Respondent's West Hartford plant, but excluding executives, general
foremen, foremen, assistant foremen, watchmen and guards, office employees, count
station clerks, timekeepers, cafeteria employees, medical employees, and temporary
employees and employees with authority to hire, promote, discharge, or discipline,
constitute a unit appropriate for the purposes of collective bargaining within the
-meaning of the Act.'
The parties also stipulated and I find that at all times material herein International
Union, United Automobile, Aircraft and Agricultural Implement Workers of Amer-
ica, UAW, AFL-CIO, and its Local 379, were the exclusive bargaining representative
of all the employees in the bargaining unit above described.
Total Picture
This proceeding is the aftermath of a disagreement between the Union and the
Respondent when they attempted to negotiate renewal of their last collective-
-bargaining contract in 1960. The Union was the bargaining agent for the produc-
'The unit description set out above conforms precisely with the unit coverage of the
1959 collective-bargaining agreement between the Respondent and the Union, which ex-
pired in the fall of 1960. The only question raised by the Respondent in its answer and
at the hearing with respect to the appropriate unit involves a running dispute with the
Union with respect to "working foremen," an issue not involving a precise classification of
employees but rather disagreement in past and present bargaining as to whether particular
categories do supervisory work or not Concededly the Union represented, at the time of
the events under consideration, a majority of the overall unit, regardless of whether the
disputed category be counted or not I therefore deem resolution of the proper unit place-
ment of working foremen immaterial and unnecessary to solution of the true Issues raised
.by the complaint.
JACOBS MANUFACTURING CO. 43
tion and maintenance employees for upwards of 20 years, with conditions of em-
ployment always codified in detail in successive contracts; the last agreement covered
the period October 1959 to September 15, 1960. The parties exchanged written
proposals and 16 or 18 conferences took place before the old contract expired; ex-
tended discussion of the merits of the various demands took place. The Union
called a strike on September 16, and all 211 employees covered by the contract quit
work. Discussions were resumed late in November and from then through April
1961, 16 additional meetings took place, without agreement ever being reached.
The heart allegation of the complaint is twofold: first that the Company did not
bargain in good faith during these conferences, and therefore "refused to bargain"
in violation of Section 8(a)(5) of the Act; second, that the Union called the strike
when it did to protest, and because of such illegal conduct by the Respondent. A
logical extension of this charge-also precisely alleged in the complaint-is that,
in consequence, the work stoppage was an unfair labor practice strike as distinguished
from an economic test of strength.
For many months not I of the 211 strikers returned to work, although the Com-
pany resumed operations shortly after September 15, 1960, by hiring replacements
for the old employees. On June 18, 1961, while the hearing was in progress, the
Union abandoned the strike and virtually all the employees who had struck made
unconditional offers to return to work. By this time the Company had hired and'
had in its employ approximately 15,5 production and maintenance employees.
In its answer the Respondent denies that its bargaining was carried on in bad faith,
or that it ever failed to honor its statutory duty to bargain with the Union, as that
obligation is spelled out in the statute. Affirmatively, at the hearing, it asserted that
the dispute between the parties was always an economic one, that the impasse reached
in September 1960 resulted from the parties' inability to compromise their conflicting
views as to proper conditions of employment, and that therefore the purpose of the
strike was to coerce the Company to accept the Union's economic demands.
It disputes the assertion of strike objective to protest any illegal conduct by the
Respondent. Consistent with this position the Company viewed the persons it hired
to replace,the strikers as permanent employees and so advised the Union during the
meetings and conferences that took place after September 15. Still adhering to this
view when the strike was abandoned the following June, the Respondent refused to,
dismiss the replacements to make way for the returning strikers, and it therefore
put back to work only about 10 or 11 of them, these to the only jobs that were then
vacant according to its asserted needs of the moment.
On July 12, 1961, the General Counsel moved, and was permitted, to amend the
complaint by adding the allegation that by its refusal to restore all the returning
strikers to work the Respondent discriminated against them in violation of Section
8(a)(3) of the Act, at least with respect to such number of them as later investiga-
tion, at a possible compliance stage of the proceeding, might reveal could have been
used in the light of what total amount of work or jobs were then available. It was
conceded by all parties that the allegation of illegal refusal to reinstate a large
number of strikers would have merit or would fall entirely depending precisely upon
resolution of the earlier allegation that the strike was or was not an unfair labor
practice strike.
As will appear in detail below, the alleged bad faith of the Respondent is to be
seen, according to the General Counsel, in events occurring both before and after
the strike. Among the poststrike incidents stressed is the Respondent's demand, first
stated on November 9, 1960, that all striker replacements should enjoy "super
seniority" vis-a-vis the strikers. Relying upon the Board's recent decision in Erie
Resistor Corporation, 132 NLRB 621, issued after the close of the hearing, the
General Counsel now urges the further contention that, even assuming the strike
was an economic one at its inception, it was converted to an unfair labor practice
strike on and after November 9, 1960, because of the Respondent's illegal "insistence"
upon the superseniority clause. In this posture of the case, the General Counsel
continues, as a minimum, those replacements who were first hired after November 9,
should have been displaced by as many returning strikers as could do their work the
following June.
The Government's Theory of the Case
The Respondent is charged with having violated Section 8(a) (5) of the Act, and
therefore the complaint necessarily alleges in so many words that the Company
"refused to bargain" with the Union. Actually, the assertion is not literally true,
as the General Counsel of course concedes. The Respondent met with union rep-
resentatives and the parties discussed at great length a number of matters in dispute
between them; indeed, there were no less than 16 such meetings before the strike,
and about 16 thereafter. The true allegation of the complaint is that what meeting
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and talking the Respondent's agents engaged in was all inspired by an underlying
motivation to remove the Union as an effective bargaining agent on behalf of the
employees in the plant, or by a pervasive bad faith in its dealings with the Union.
As originally phrased, the complaint generalizes that the bad faith is revealed in
the facts, among others, that the Respondent "made no sincere effort to reach agree-
ment," "shifted and altered its bargaining position," adopted "an immovable posi-
tion regarding the issues," and "made extreme, harsh, and retrogressive proposals."
Repeatedly at the hearing and again in his brief, the General Counsel made clear
that under his theory of the case the illegal conduct is not to be seen in particular
acts, specific positions articulated, pinpointed demands during the conferences, or
individual proposed changes in the old contract. According to him, it is the "total
circumstances," "the overall picture," every word uttered and everything that was
done, that, collectively viewed in their totality, support and require an inference of
latent and ulterior intent to reject the principle of collective bargaining entirely. The
Union, in its brief submitted after the hearing, points to a number of particular de-
mands made by the Company, and certain acts by it, as constituting "per se" viola-
tions of the Act. The Charging Union, of course, may not expand the allegations
of the complaint, a province reserved exclusively to the General Counsel. However,
its basic theory also seems to be that the Respondent's entire course of action really
forms the basis for the "bad faith" essential allegation of the complaint.
With such a broad base to the General Counsel's theory of the case, justice required
that the Union's principal spokesman at the bargaining conferences, and main wit-
ness for the Government, be given every opportunity to relate the negotations to the
last detail. Necessarily the counterpart witnesses for the Respondent were afforded
like privilege. More, as the very nature and extent of the contract proposals ad-
vanced by the Company were attacked as in themselves revealing union animus, the
same broad latitude was given the Company to prove, if it could, economic explana-
tion and justification for its varied proposals. Therefore, much testimony was
received and innumerable documents were placed in evidence respecting the Com-
pany's past factory experience both with production problems and employee behavior.
In the guise of relating the conference conversations, inevitably the long recitals of
the three principal witnesses-Marci, president of the Union Local, England, indus-
trial relations director, and Dolaher, company industrial engineer-included not only
their recollections of what was said but also extended apologies for their positions
respecting the substantive contract clauses in dispute. In large measure the testi-
mony of all three of these witnesses reflects no more than argumentation respecting
the merits and failings of the opposing positions taken in the course of the bargaining.
In the very nature of the trial of an issue of this type-good or bad faith revealed
over a period of time-many remote and detailed facts may be literally relevant but
materially insubstantial. A Trial Examiner's Intermediate Report in the established
scheme for the administration of this statute would serve little purpose if it reiterated,
for purposes of appraisal, every detail of testimony and exhibits In this instance
such a procedure would be tantamount to a restatement of the record in its entirety.
,I believe, instead, that the proper function of an Intermediate Report is to set out
the salient facts, to appraise in detail the truly substantial and material elements of
both the complaint and the affirmative defense, and to focus attention upon the funda-
mental positions of the conflicting parties and the real issues that kept them apart and
eventually brought on the strike. This is not to say that the incidental and minor
issues are not to be considered. In appraising this record and reaching my con-
clusions on it I have evaluated all the disputed matters, as well as the attitudes re-
flected on both sides by the running commentaries of the negotiators.
Facts
Among the principal facts upon which the allegation of bad-faith bargaining
-rests are the nature and extent of the contract change proposals presented to the
Union by the Company. Intelligent appraisal of the main issue therefore requires
an understanding and appreciation of the character and extent of the changes which
the Company wished to make in the contract. Because the last contract was the end
result of years of negotiations and many detailed changes in phraseology that re-
sulted from successive negotiations over many years, the agreement due to expire
in September 1960 was a very detailed document extending over 60 pages in a
printed booklet. The last preceding negotiations, in the year 1959, had centered
upon the establishment of a new wage incentive system requested by the Com-
pany. This new arrangement, which the Company at that time prevailed upon the
Union to accept, became a supplement to the prior contract and covers 20 of the
60 pages of the 1959-60 agreement. The first 40 pages, covering in detail the usual
provisions relating to conditions of employment found in collective-bargaining
JACOBS MANUFACTURING CO. 45
.agreements, are an untouched renewal of the preceding contract which expired in
1959. As to all the detailed provisions there contained, including a precisely detailed
.grievance and arbitration arrangement, apparently the Company saw no reason to
insist upon any changes whatever in 1959.
In the spring of 1960 the Company turned the entire matter of negotiating a
new agreement over to Noel England, who was hired as industrial relations director
during 1959 while the negotiations for that year were in progress. England testified
that the responsibility for preparing what demands the Company would make in
1960 were placed primarily upon him, that he conferred with various production
superintendents, that he studied contracts in effect in other companies, and that he
reviewed the Respondent's history with the Union as reflected in its ancient records.
In consequence of his studies he wrote up a complete revision of the entire new
contract. The document he asked the Union to accept at the inception of negotia-
tions consists of an agreement over 40 pages long, integrates the incentive wage
system-including a number of changes within it-into the single contract, and
rearranges the substantive agreement with constant cross-references among the ar-
ticles into a totally new code of conditions of employment. The agreement as he
wrote it does not follow the format of the expiring one; articles which appeared
as separate provisions before in some instances were merged into others; articles
under new subject headings are created; cross-references from article to article de-
part in many instances from the previous arrangement. It is virtually impossible
to compare the old contract against the new proposals in parallel structure so as
clearly to see or appreciate the changes and innovations made in England's proposed
agreement.
England made substantial changes in virtually every substantive element of the
contract. These changes ranged from multitudinous minute alterations in phrase-
ology to fundamental variances in the most significant elements involved. And
in many instances the substantive changes reflected in certain new articles took on
added meaning in terms of further changes that had been made in related articles
in other portions of the agreement. For an understanding of each of the changes
in the new contract, it would require either painstaking reading of the entire 3,500
pages of transcript-the oral recitations of the two principal negotiators-or a study
of the over 280-page analytical chart and analysis prepared by counsel for the
Charging Union and submitted as an attachment to his brief.
Careful study of the discussions that took place during the bargaining conferences
as revealed in the unfolding story at the hearing, and review of the company pro-
posals as revealed in the original revised contract and the changes in those proposals
made at later dates, shows that the resultant disagreement centered in two major
areas. Other matters, while no less the subject of disagreement, appear on the basis
of the total record as of lesser importance or ancillary by contrast. The two princi-
pal subjects appear to have been (1) revisions in the method for establishing pro-
duction standards under the wage incentive system, together with a new concept
of what work by an individual employee would be considered adequate and satis-
factory performance at various levels, and (2) the manner and means whereby
the union representatives could speak on behalf of the employees during the life
of the agreement and process grievances on their behalf.
The Company's Proposals
Production standards and wage incentive
To appreciate the nature and extent of the new proposals relating to production
requirements and wage incentive a word of history is required. Before October 1,
1959, there was in effect a time-study or production standard method of payment
for certain categories of employees. This was essentially a stopwatch method of
evaluating worktime and motion; at that time there was a ceiling upon the earnings
of any operator; what was then called standard performance, having been achieved,
additional production went unpaid. In the 1959 contract a new wage incentive
system called MTM (methods time measurement) was instituted; this was the de-
tailed system which, as a supplement to the earlier collective-bargaining agreement,
became part of the 1959-60 renewal. The record shows clearly that the major issue
of discussion in 1959 was the Respondent's desire to institute this new system; all
parties conceded the Respondent's purpose at that time was to achieve greater
productivity in the plant, increase the work output of the individual employees, and
provide for a fuller 8 hours of work daily. A significant change made at that time
was that the ceiling upon earnings was removed.
Standard production requirement, or 100 percent performance, under the MTM
system by an employee, is established in a very technical, scientific way for every
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
separate operation. There are many factors used in the mathematical calculation
of this standard; these include basic data obtained from visual observation, measure-
ment and appraisal of very detailed body motion of the operator, certain numerical
percentages for personal, fatigue, and delay allowances, and what came to be known
as further "add-on" percentages. The last elements-the add-ons-are variable ad-
justments calculated to relax the rigidity of the mathematical evaluations and
thereby indirectly permit a loosening of the concept of fair work performance-or
normal pace-required of the human being. All these numerical factors were pre-
cisely set out in the 1959 agreement as integral parts of the then proposed MTM
system. The incentive aspect of the plan consisted simply of the fact that in any
given instance where an employee performed at a production rate in excess of the
100 percent standard production requirement, his earnings would be increased
precisely in accordance with his increased production output. Thus the system
invisaged that any operator who applied himself more diligently and with greater
efficiency or attention-perhaps used less time for personal need, fatigue, and delay-
would earn more money per hour or per day or per week because his actual output
of work would be in excess of the "standard."
The first MTM standards were announced and put in effect in January and Feb-
ruary 1960. The contract provided MTM should apply only to certain limited
departments that year. As the spring progressed more and more precise standards
for varying operations were established. The Union filed grievances, pursuant to
the grievance procedure then in effect, on virtually each of the almost 200 such
standards. In some instances the MTM standards on an old operation resulted in
increased production requirements of as much as 100 percent, in others somewhat
less, and in only a few a little bit below the prior standard requirement. As precise
and detailed as the MTM contractual provisions were they nevertheless permitted,
in the time study and measurements made, consideration of an individual or personal
concept of pace, or what should be the normal operating speed of an employee.
The fundamental disagreement that underlay every one of the grievances was whether
the standards as established by the Company's industrial engineers conformed with
that "fair," "normal," or correct concept of "pace" intended, in the contract as a
whole. The Company felt that the pace at which employees worked prior to the
new system had been too slow as a whole; the Union kept arguing that the judgment
of the Company's time-study men was abnormal, excessive , and created a "sweat
shop" condition?
The parties agreed at one point during the 1959-60 agreement to process two
of these many grievances to arbitration. They agreed to this procedure because
they recognized that there was at least some similarity in the underlying questions
of many of the grievances and that resolution of these two would serve as guides
for resolving many others. As Stoner, the president of the Company, said: "we
will abide the outcome of these." The first arbitration decision was received in
July and the second on September 14, the day before the contract expired. Mean-
while, the employees covered by the many MTM production standards in effect
continued to work, albeit under protest, while being paid at rates which they and
their representatives protested were not in accordance with the contract, or not fair.
In the teeth of this universal dissatisfaction among the employees the Company
proposed, in its 1960 contract revisions, a number of changes both in the mathe-
matical formulas constituting the MTM system and in the application of the system
to the employees. Again, as in 1959, the employer's announced purpose here was
to compel greater work performance or output by the employees. The changes in
the system were many, but the principal ones were the following:
1. Extend the MTM system to additional existing departments and to new ones
to be created. The Company had recently moved some of the production work
performed at the plant to a new plant in Clemson, South Carolina, with consequent
reduction of the employee complement. It had also announced that a new line
of products was to be made at Hartford and that this new line would so expand as
to become the principal product of the plant. It proposed extension of MTM to
departments not previously affected, and to all new ones to be required for the new
product lines.
-2. Eliminate totally some of the add-on percentages of the existing MTM system
and reduce a number of others Here, the Company proposed eliminating entirely
the overall 10 percent add-on which had softened the impact of prior standards;
2 The Respondent's industrial engineer testified that the pace, not reduced to writ-
tng " . . was an effort, requirement, or tempo that the people had to work at . . . ' He
conceded all this was "a mental arrangement."
JACOBS MANUFACTURING CO. 47
it also proposed reducing three critical factors-the percentage allowances relating
to personal, fatigue, and delayed allowances. The declared purposes of these
.changes was to require greater production output for what would continue to be
called "standard," or 100-percent performance.
3. Where in the past achievement of 100 percent standard production was
deemed satisfactory work under the contract, henceforth satisfactory performance
would require achievement of the incentive potential of each operation as established
under the revised MTM system. While the company representative did not pre-
cisely state in the proposal what percentage over 100 would be deemed satisfactory,
generally the position was that it should be 125 percent. The Union called this a
"forced incentive" requirement, and the Company conceded the characterization
to be accurate.
4. The time within which employees transferred to the different operations, or
assigned to vacancies created, or placed on other operations for short periods,
must achieve this new concept of "satisfactory" performance was appreciably
shortened in a number of substantial respects.
5. Apart from all other provisions of the contract, the Company proposed: "It
is understood that the Company has and retains the unquestioned right to revise
job evaluations both up and down at its discretion when changes in the job content
warrant changes in evaluation."
6. The Company proposed that it be contractually given the right to disregard any
production standard established pursuant to the contract when signed and to pay
instead according to "ability, versatility or record." This section 12 of its incentive
standards article is set out verbatim below under Analysis.
In the course of the 16 bargaining conferences before the strike on September 15,
1960, the company spokesman relented on some minor details of the foregoing
proposals. The changes were slight and of little substance. Essentially the Com-
pany never withdrew the substance of any of the foregoing proposals.
The grievance proceduie and union representation of the employees
On the direct mechanics of the grievance procedure the Company proposed these
changes:
1. The prior three-step method was reduced to two steps, step A to the foreman,
and step B directly to England, the industrial relations director.
2. All grievances must be filed within 10 days of the provoking cause; in the past
there had been no time limit for filing grievances under the MTM wage incentive
system; the Company later conceded 30 days for MTM grievances. At the first
step the foreman to have 5 working days to respond to the grievance, where he
previously had only I working day. After the foreman's decision the Union must
appeal wtihin 5 days or be foreclosed At the second step the industrial relations
director to have 15 days within which to respond after a conference, instead of the
2 working days allowed before; again after his decision the Union must appeal further
within 5 days or be foreclosed.
3. On appeal from the foreman to the industrial relations director the Union must
submit a written statement of the basis for its appeal in advance of the conference.
4. Grievances involving the union-security provision of the contract must start
with step A at the foremen's level; in the past those grievances went directly to
higher management officials.
5. Grievances arising under the wage incentive system must be by separate model,
and not by operation , which could encompass work performed on a number of
models. Under the 1959-60 contract a number of grievances had been submitted
and were considered by grouping a number of models because of the similarity in
the operation. Virtually all grievances filed and considered during the prior year
arose directly from the wage incentive system problem.
An additional number of changes involved directly the representatives whom
the Union could use in the grievance procedure and who would be recognized by the
Company during the following year. Because the MTM system was very technical
and new, the Company had agreed to train and did train in that system two union
representatives-these called TSR (time-study representative) men. For this pur-
pose the Union had selected Marci, its president, and Viera, its vice president, who
together served in this special capacity during the 1959 contract and were the princi-
pal spokesmen in processing the grievances and two arbitrations. The 1959 contract
also recognized eight union representatives or committeemen , gave them super-
seniority, and provided that what time they spent on active grievances-both floor
investigation and office conference-would be paid for by the Company.
In this area England proposed the following changes:
48 DECISIONS 01' NATIONAL LABOR RELATIONS BOARD
1. The number of recognized union representatives-including officeis, com-
mitteemen, or TSR men-to be reduced from eight to six; the number of union:
representatives thus accorded superseniority to be reduced accordingly.
2. TSR men no longer to be permitted to function in any other union office or
status within the grievance procedure or day-to-day dealing with the Company.
TSR men in the future to be trained at the expense of the Union. Compliance with
these demands would necessarily have meant either removal of Marci and Viera
from umon office so they could continue to represent the employees on the technical
question of the wage incentive system as TSR men, or training, at union expense, of
additional representatives in the intricacies and complexities of that system.
3. Union representatives to be paid for time spent in processing grievances only
for such duties performed "in office conferences"; under the prior contract they
were paid for time in office conferences as well as floor investigation work. In
later meetings, but still before the strike, the Company changed this proposal and
offered to pay no more than 20 hours for time spent by the entire group of union•
representatives collectively in processing grievances in any given month. During
the 12 months preceding the negotiations the average time used for such grievance,
handling and paid for by the Company was about 40 hours monthly.
4. At grievance procedure meetings the employee to be privileged to be present
only if the Company so requested In the past he had a contract right to be present
even if the Union wished him, and he was paid in either event. The Company later
changed this proposal to provide he could be present if either party wished him but
the Company would pay only if it requested the employee.
5. No grievance could be advanced by the Union unless it bore the signature of
the employee or employees involved. Such a provision appeared in the 1959 con-
tract but had not always been enforced
Changes in the arbitration procedure
1 The Company struck the word "applicability" from the coverage of both the
grievance and the arbitration provisions of its proposals; in the earlier contract the
general grievance article covered "meaning, interpretation, or application of any
provision," and the same all inclusive phrase appeared in the arbitration provision
relating to the incentive wage questions.3
2 On some of the standards to be established under the incentive system the right
to go to arbitration was deleted.
3. Only one issue could go to arbitration at a time; in the past there was no such
limitation upon an arbitration procedure. One arbitrator could not take on another
issue or grievance until he had completely disposed of one; again this was a new
limitation. The cost of arbitration must be borne by the losing party; in the past
it had been shared equally by both under the contract.
4. If any party raised the issue of "arbitrability" in the course of the arbitration.
proceeding, the proceeding must be suspended while review on that limited question
was had before the State Court of Connecticut. In the past, the question of arbi-
trability was raised and at times disposed of by the arbitrator, in the usual manner
of things, with redress to either of the parties based upon established law.
5 The Union, or its TSR men, for the first time would be obligated to place in
the hands of company representatives, at least 5 days in advance of the arbitration
hearing, "all data collected" in connection with the matter to be arbitrated Failure
to place such material in the hands of the,Company would foreclose the Union from
presenting any added material to the arbitrator. No comparable limitation was
placed upon the Company's freedom to submit any and all material it wished.
Other aspects of the union representation
1. The Union must pay the cost for printing the contract for distribution to the
employees. It had never before had this burden
2. The Company demanded a complete no-strike clause and never deviated from
that proposal.
3 There was conflicting testimony as to whether or not when the 1959 agreement was
negotiated the parties agreed orally that the word "application" ss,uld be considered as
also extending to the general aibitration provision in the old agreement England denied
there had been Such an agreement, and Marci, on behalf of the Union, said that such
arrangement remained oral only to avoid it full reprint of the 19,58 contract, which other-
wise was renewed without change The parties having agreed to permit the preceding
contract to remain unchanged in 1959, 1 do not believe this vague testimony suffices to
warrant a finding at variance with the printed agreement.
JACOBS MANUFACTURING CO. 49
Additional economic demands
1. Night-shift differential payment per hour to be reduced; paid lunch period
during night shitt to be eliminated.
2. All vacation benefits to be denied any employee who worked less than 1,700
hours per year; calculation of vacation benefits no longer to take into consideration
overtime earnings during the year. The 1,700-hour requirement was later
withdrawn.
3. On seniority rights, the number of exempted departments to be increased by
the addition to that exempted category of additional presently existing departments,
and by further exclusion of new departments it was contemplated would be estab-
lished soon. In the exempted departments, both in the past and as now contemplated,
the element of skill and ability was the prime retention consideration, and only
among equals would time with the Company be an important factor. In the so-
called "seniority" departments, competent performance entitled an employee to
preference if his time with the Company was longer. The proposal also required
that additional grades of employees-within any department-be transferred from
the seniority group to the nonseniority elements.
4. Newly hired employees to be considered "probationary" a greater number of
weeks than in the past; further, even as to them, the Company would no longer be
required to consider arguments of the shop committee with respect to its treatment
of probationary employees.
5. The period of time during which assignments or jobs would be considered
temporary considerably extended, with provision to the Company to fill such jobs
at will, either from the existing complement or from outside the plant; the Company
was to have "complete freedom" in placing people on these jobs.
6. The Company had long accused the union agents of having required manage-
ment to molly-coddle physically disabled employees and had repeatedly announced
it deemed perhaps a majority of all the employees "handicapped " In justification
of its severe economic demands it most often advanced this "problem of the handi-
capped" as the real basis. When the Union expressed a willingness to cooperate-
perhaps with impartial physicians to decide-where real physical handicap was found,
the Company offered a new section in its contract proposals whereby it would at-
tempt to find appropriate work for handicapped people or release them outright,
the procedure to be used, however, only when the Company "in its sole" judgment
deemed appropriate.
The Demands of the Union
The Union listed 19 items in its demands for contract revisions . In the light of
the discussions which followed the following would appear to be the major elements
there grouped.
1. Loosen some of the add -on allowances in the wage incentive formula, as, for
example, increase the personal , fatigue, and delay allowances.
2 Increased benefits for hospitalization , surgical, and disability benefits, and also
with respect to pensions.
3. Expand the seniority provisions so as to make a greater number, instead of a
lesser number , of employees covered by the temporal seniority instead of the element
of skill and ability.
4 Increase the amount of grievance time allowed to union representatives to be
paid by the Company.
5. Provide that the Company , like the Union , be foreclosed at the various griev-
ance steps if it did not appeal or proceed to the next step with respect to any grievance
within fixed time schedules . Make the question of arbitrability in the course of
grievance or arbitration a matter of less emphasis , according to established law
6. Eliminate the no-strike clause from the contract.
Prestrike Conferences
The foregoing demands were discussed at great length during no less than 16
meetings before September 16. Every ramification of the detailed phrases, every
impact one provision might have on a number of others, the pros and cons both in
the Union's and the employer's interest were expanded upon at great length. Be-
cause virtually no single item could be evaluated without giving consideration to
many of the others in the completely rewritten company proposal, no one element
was or could be disposed of in isolation. Particularly was great emphasis placed by
the union representatives, and recognized by the Company, upon the inherent rela-
tionship between the mechanics of the detailed grievance procedure and the complex
difficulties of the wage incentive system. Both sides made extended efforts to con-
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vince the other of the propriety of its demands. On the question of whether or not
the wage incentive system should be "tightened" up, and employees be forced to
achieve greater incentive earnings, the Company brought its industrial engineer,
Dolaher, to five of the conferences to explain in greater detail the system it proposed.
Dolaher argued from prepared charts and selected reportings from the Company's
production records to support the company position.
No substantial agreement was reached on the material issues. At one or two
meetings before the strike the Company made some modifications in its demands;
some of these were concessions to arguments by the Union. In their totality these
concessions were very minor in nature and did not go to the substance of the Com-
pany's demands, either with respect to production requirements to be imposed upon
the employees, or the many-faceted changes in the Union's right to process grievances
and represent the employees
As September 15 approached it became clear there would be no agreement on the
substantial issues that kept the parties apart. The Union struck on September 16 and
the parties never met again until November 9.
Poststrike Meetings
Between November 9 and May 4, 1961, the parties met and talked again about 16
times. They discussed and disputed over and over again the same substantive issues
which kept them apart in the prestrike conferences. In some minor details the Com-
pany offered to make concessions in its multitudinous demands; these involved
changes in the mathematical formulas of the new MTM method and in the revised
grievance procedure proposed. In all instances, however, the changes were very
slight and of no really significant importance.
As the weeks went by the Company continued to hire new employees and reiter-
ating its ,fixed position that these were now its permanent complement. Throughout
the discussions there then began to echo a hollow note. While the Company never
questioned the Union's majority representative status, in reality it was speaking of
the working conditions applicable to upwards of 150 employees not one of whom
had joined the Union. In turn, rejecting the permanent replacement contention of
the Company, the union representatives were arguing on behalf of its 200-odd mem-
bers, not one of whom had abandoned the strike and most of whom the Company,
by necessary and clear implication, no longer considered its employees. Indeed what
talking took place after November 9, 1960, could hardly be viewed as coherent col-
lective bargaining on the working conditions of "employees" represented by the
Union.
As stated above, shortly after inception of the strike, the Company resumed opera-
tions with totally new employees. By November 9 it had hired about 100 replace-
ments. Because of the changed situation thus brought about, when the parties next
met on that date, the Company presented the Union with 11 written revisions of its
contract proposals. Some of these involved minor changes in the details of the
overall new MTM system which the Union had refused to accept but which the Com-
pany had put into operation unilaterally. The most significant new proposals-
those which thereafter altered the very nature of all ensuing discussions-were two.
The Company demanded agreement by the Union that all employees hired in place
of the strikers be deemed permanent employees who must not be released to make
place for strikers who might eventually elect to return; it also demanded contract
provisions granting superseniority to strike replacements over any strikers who might
be rehired after a replacement had started work. Despite the Union's unqualified
protest against each of these two proposals, the Company held firm on them clear
through the following month of May, when all discussions were abandoned
Analysis
As already explained the merits of the complaint must be appraised in the light
of the total record. Whether England on behalf of the Company approached the
1960 bargaining negotiations with a calculated intent not to accord the Union proper
recognition as representative of the employees and so conducted himself throughout
the bargaining negotiations as to effectively deprive the Union of a voice to be
reckoned with in his treatment of the employees, is the question of good or bad
faith presented here. The Respondent's major assertion is that the real issue which
kept the parties apart and prevented a new contract was the Union's refusal to agree
with the company demand that the employees do more work for their day's pay.
And it is true the Union rejected those of the demands which went to strengthening
the wage incentive system, just as it forcefully rejected fundamentally all England's
demands. According to the Respondent the greatest indication that this was the
JACOBS MANUFACTURING CO. 51
true dispute is the fact that a great deal of time during the discussions was devoted
to the question of revisions in the wage incentive program.
As is necessarily true in all collective -bargaining negotiations which present diversi-
fied changes in a contract , some items lend themselves to more extended discussion
than do others . The wage incentive system being a very complex formula with
many details involved , inevitably there was much talk about numerical factors,
mathematical calculations , very minute detailed motion evaluations . It does not
follow , however, merely because certain other demands were brief and concise and
were either summarily rejected or discussed only briefly , that they were therefore
less important in the major dispute which developed. Some demands , though briefly
phrased and to the point , may nevertheless be more revealing of the true motivation
in the minds of the parties than other more extended paragraphs and complex
provisions.
For example , the Company insisted at all times that there be an absolute no-strike
provision in the contract , and the Union wished to delete that clause. It is a brief
one, and there can be little discussion about its phrasing or what it means. Never-
theless, the propriety of the Company 's insistence on such a clause and its significance
can only be appraised when viewed against the totality of the overall contract pro-
posals which accompanied it. On the other hand , there was very extended discussion
about what came to be referred to as the "bumping " problem. There is no express
provision literally involving bumping in the extended company proposals . And yet
the ramified seniority variations , rights to assignment to temporary or vacant jobs,
claimed incompetence of a great many employees called "handicapped ," are all
matters appearing in other proposed clauses which together reflected the Respondent's
desire to limit the amount of chain bumping . Merely because the necessary cross-
references required , during the many discussions , for each party to score a point on
why it felt the way it did on these questions may have consumed much of the dis-
cussion periods, does not mean that questions of this type were of extraordinary
importance in the final impasse.
As is usual in this type of case, if any single item or demand be considered in
isolation it could hardly be said to prove an unfair labor practice , or a violation of
the statute per se. England was asked by his counsel to explain his reason for each
and every phrase he changed in the old contract . Some he said he simply found in
collective-bargaining agreements of other companies with other unions. Others
he said he inserted "for bargaining purposes only." Some few he showed would
have had the effect of undoing adverse decisions in early arbitrations of the Company.
Here, however, all the demands must be considered together . The relationship
of one to the other, or of any one to the whole , lends to each an added significance
against the main issue of the complaint . England did not ask the Union to agree
to any single one of his proposals and leave the old contract as it was. I therefore
do not appraise the case as a series of unrelated demands and comment on whether
this or that one was illegal , as the Union tried to argue with an out-of-context selec-
tion of cited cases as authority for each argument . In fact, apart from the two most
important poststrike demands of permanent replacement and superseniority, were
I to comment on each single proposal I could not place a finger on a single item
and say that in itself it suffices to prove illegality or a determination to uproot the
Union from the plant. Even the sum total of the work effort demanded in the
tightening up of the wage incentive system could not in itself serve to prove union
animus. After all, the work effort demand which the Union called unreasonable,
inhuman, sweatshop condition , was acceptable to the strike replacement complement
hired later . It does appear that 155 other employees succeeded in earning a living
at those going rates. After the strike , however, there was no union in the plant.
It does not appear that any grievances were filed or that the question of union
representation or collective bargaining arose at all among these employees.
Before the strike, England was under obligation to deal with the Union concerning
employees working under his new concept of wage incentive standards. Merely
because another complement of workmen , not shown to have any desire to engage
in collective bargaining , was willing and able to work under his unilaterally imposed
conditions , cannot serve to make the total demands he placed upon Local 379 proof
of good-faith behavior.
The total demands presented to the Union must not only be appraised intrinmrcally
but must also be viewed in the light of other conditions , extraneous to the contract
demands per se, but which bore a direct relationship to their true significance. Thus,
the grievance procedure under the expired contract , as applied , had not served to
resolve the disagreements that arose between the parties over the wage incentive
system. All the 200-or-so grievances were still pending when the Company pro.
662353-63-vol. 138-5
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posed major revision in the entire representation aspect of the agreement; of these
only 2 were ever resolved, through arbitration, by the time the 1959 contract ex-
pired, 1 of them on the very last day. And the Company made clear, both before
and during the prestrike conferences, that the answers which might come from
these two arbitrations, or from any pending grievances, would only apply to work
performed under the existing contract, and would in no sense serve as guides for
conditions of employment after September 15. In the light of this fact, the further
proposal of making a new contract for only 1 year, this time with a more stringent
and more complex grievance and arbitration proceeding, necessarily gave promise
of even fewer grievance or arbitration resolutions in the future than had been
achieved before.
A second important collateral fact must also be considered. The MTM system
is so complex a scientific and technical method of establishing wage standards and
paying employees for work, that from its very inception the Company recognized
an obligation to assist the Union to understand it. It was for this reason that the
classification of union representatives called TSR men came into existence, and the
Company even paid for the cost of putting two union representatives through a
2-week training course to understand the system. The evidence shows that for
each of the approximately 200 wage standards established under the 1959 contract,
there resulted between 12 and 14 separate sheets of basic numerical data in con-
nection with it. Necessarily, to process grievances and argue the accuracy or
unfairness of standards established by the Company under the existing contract,
the Union had to study and understand each of these sheets, present its objections
in the light of this basic wage data, and appeal eventually to an arbitrator on that
basis. But from the very beginning of the MTM system in 1959 the Company
refused to give copies of this basic wage data to the union representatives, despite
repeated pleadings. The Company did permit the TSR men to come into the office
of the industrial engineer and see the original timesheets. Every time a union
representative appeared at the office to make copies of or to extract information
from these highly technical and scientific resumes, an agent of the Company stood
by showing one sheet at a time. Throughout the bargaining, while these matters
of correct or incorrect wage standards were argued out, the union representatives
continued their plea that the Company make available to them, to take home and
study on their own time, the basic sheets themselves. And as consistently Industrial
Relations Director England refused the courtesy. Indeed, at one of the early
conferences, the union president appealed to the company president for help in this
area; the company officer said he could not see why this information was withheld.
England quickly silenced his superior on the subject.
I am convinced, on the basis of the entire record, that acting through its industrial
relations director, the Respondent approached the 1960 negotiations with Local 379
without a good-faith acceptance of the principle of "collective bargaining" as that
term is defined in Section 8(d) of the statute, that among England's underlying
motives throughout the long discussions was an objective to remove the Union as
an effective representative of the employees, and that he consciously intended there
should never be agreement between the parties or any contract signed. I think
this case falls within the purport of the First Circuit Court of Appeals language in
Reed and Prince, where it said: "It is difficult to believe that the Company with a
straight face and in good faith could have supposed that this proposal had the
slightest chance of acceptance by a self-respecting union, or even that it might ad-
vance the negotiations by affording a basis of discussion; rather, it looks more like
a stalling tactic by a party bent upon maintaining the pretense of bargaining." 4
My conclusion rests not only on the nature and extent of the proposed contract, but
also upon other conduct of the Respondent and related facts which bore a direct
relationship to the agreement which England always insisted the Union accept.
1. One of the most significant collateral facts is the Company's practice of paying
the employees on the basis,of its wage incentive system. It could not be, and it
is not claimed the employees could themselves understand the method used for
calculating what their work requirements, or compensation rates would be from
time to time as the many operations and models changed. The duty and privilege
of policing the contract rests always, of course, upon the bargaining agent; where
the contract provides for hourly or piece work the problems encountered by the
Union in processing grievances must be solved by itself, and an employer's desire,
in contract modification, to streamline and expedite the grievance or arbitration pro-
cedure appears in a certain light. Where, however, the employer chooses a very
complex, indeed scientific method for wage payments, where it is itself required to
' N.L.R.B . v. Reed d Prince Manufacturing Company, 205 F. 2d 131, 139 (C.A. 1).
JACOBS MANUFACTURING CO. 53
utilize the services of professionally trained industrial engineers both to establish
the rates and to defend them in grievance and arbitration , continued insistence upon
placing obstacles in the path of the union representatives ' attempts to understand
the system and to persuade the employer or an impartial arbitrator of the merits of
employee complaints , points persuasively to an ulterior motive. Merely because the
employer is legally free to use so devious and obscure a method for setting wage
rates, it does not follow that the fact of its extreme complexity is to be ignored as a
pertinent element in the employer -employee relationship , the precise area where the
collective -bargaining agent may properly function . This does not mean such an
employer is obligated to assist the Union in its greater than usual problems arising
from the nature of the wage system. It does mean that when that employer demands
and insists upon more and more inroads into the Union 's freedom of action in the
grievance process, when it withholds information without reasonable explanation
to justify the refusal , when it insists upon weighting the day-to-day collective-
bargaining process in its favor and to the Union 's prejudice , an intent to arrogate
exclusive , unilateral control over conditions of employment to itself, to the exclusion
of any representative voice by the Union, arises strongly by inference.
The Company's appreciation that the employees could not understand , much less
dispute the new MTM system when it went into effect during the 1959 contract is
shown by its agreement to recognize TSR men as union agents and even to teach them
the system. This is a local union, limited to the Respondent's employees and totaling
about 200 in membership, all relatively unskilled workmen. They chose Marci and
Viera, president and vice president , their principal spokesmen, to act as their TSR
men. Despite the many grievances filed, all they succeeded was in achieving final
resolution of only two, one in July and the other in September as the contract was
about to expire . With the entire wage incentive system to be revamped according
to the Company 's radical proposals , this meant that all the remaining grievances
became academic, with only the possibility of some backpay abiding their eventual
resolution-cold fare reheated. But the true purpose of a grievance procedure is
not to litigate stale claims long after the events ; rather it envisages quick resolution
of day-to-day problems and establishment of harmonious relations while the contract
is in effect and being administered as a living document.
Protesting he wished to expedite the grievance procedure , England insisted no
TSR man could thereafter function in any other capacity on behalf of the Union
in its relationship with the Company ; he also demanded the Union pay to teach
the MTM system to any other TSR men it might choose to use. The benefits to the
Company would be that Marci would absent himself less from his plater's work if
he did not continue to occupy a "dual role" as a union representative . To the Union,
however, it meant either removing Marci and Viera as TSR men, thereby losing
their acquired experience and knowledge in the complex system, incurring expense
to school new men, and again starting from scratch with inexperienced personnel
to push the complex grievances , or continuing Marci and Viera as the TSR men
and thereby losing the benefits of their proven skill and experience as the union
leaders and principal negotiators.
2. A second serious handicap placed upon the Union was England's insistence that
less time be devoted to investigating or processing grievances during working hours.
It must be remembered that virtually all grievances the parties were concerned with
arose from the production standards , and understanding of the problems required
study of the operations themselves , rather than argument over undisputed facts and
application of controversial contract language. England did not expressly propose
limiting the amount of time union representatives could devote to grievance pro-
ceedings , but he did demand so many restrictive phrases on this subject in the
complete revision of the contract that the net effect was to create danger at any
time to union representatives . Thus he wished to cut the paid time; his last offer
was about half the time that had been paid for before , and this included what time
was required for the TSR men to study the great volume of basic wage data sheets
which they could see in the office but not take home. Further, the committeemen
must check out of their departments , obtain the foreman 's permission , not leave
work at any single time for more than one grievance subject , report back personally
to the foreman on each occasion. And to emphasize the strictness of these new
rules, the contract was to read that anyone who failed in these details could be
discharged.
But even a demand that union representatives devote less of their working time
to union matters would not necessarily indicate union animus had the Company not
simultaneously made it practically impossible for them to look after their just in-
terests off the company premises or on their own time. Management likened Marci's
and Viera 's visits to the office to copy information from the basic wage data sheets
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the rush traffic at a railroad station. But they adamantly, to the bitter end,
refused the plea for copies to take home and analyze on their own time. This case
was not tried on any per se theory of illegality, and I make no finding that such
refusal in itself constituted an outright refusal to bargain. But, as the Board has
consistently ruled, by such a position alone vis-a-vis the union an employer reveals
his bad faith in collective bargaining .5 Here, coupled with mounting restrictions
upon the Union's freedom in the plant or office and contractual provisions endanger-
ing their jobs if the committeemen insisted upon a full privilege to investigate the
wage data adequately, the Respondent's adamant refusal of the data sheets, as a
minimum, becomes a most potent indication of pervasive bad faith.
3. Denial to the Union of full and free access to the wage data also sheds a
revealing light upon other changes England insisted upon making in the grievance
and arbitration procedure. The Union was to have only 5 days in which to appeal
from the foreman to step B of the grievance procedure and 15 days from the
industrial relations director to arbitration; complete foreclosure followed delay. The
factual ground for appealing to step B must be given to the Company in writing in
advance, and could not be expanded in conference later; as to arbitration, any data
the Union intended to present to the arbitrator must be placed in the Company's
hand in advance of the hearing. The Company, on the other hand, was not to be
foreclosed if it failed to respond to the grievances at any of its stages within the
agreed-upon time, and it was free to submit any data to the arbitrator, without ad-
vance copy to the Union, including the very wage data in dispute. If good faith
means honest and above-board dealings, these proposals, imposing at least a partial
shackle upon the union representatives, surely indicate the contrary.
4. Even more important, and apart from any element of unfairness between
negotiators sincerely seeking a workable plan for good-faith recognition of each
other's rights and responsibilities, are a number of other changes England sought
to make on the asserted ground of expediting things, but which necessarily would
have had the effect of delaying even more any real solution of future disagreements.
And here again it is important to bear in mind that almost all past grievances had
resulted from the MTM system, and that all parties well knew the future ones would
be in the same area and probably more in number with the planned expansion of
that system. The Company insisted that henceforth all grievances must be limited
to a single model, and were not to apply to groups of models, or types of operations;
the company representatives were to have 5 days, no longer only 1 or 2, to respond
to grievances; no grievance could be filed until the particular standard to be ques-
tioned had been in effect 120 hours; and both grievance and arbitration were to be
limited to "meaning and interpretation" of the contract language, but no longer to
its "application" by the Company. But these changes necessarily would serve to
multiply the number of grievances, delay their processing, and limit their usefulness
as real resolutions of the day-to-day disputes, arising from application of the contract
to the wage standards set.
More, in the arbitration provisions also England insisted upon changes which
virtually removed any prospect that the Union's grievances, right or wrong, would
lead to any answers during the life of the contract. Here too, multiplication of pro-
cedures was created; no arbitrator could hear more than one case at a time; no more
than one question would be put to an arbitrator at a time; if the question of ar-
bitrability were raised by either party, the arbitration proceeding was to be suspended
until the preliminary question was resolved through litigation in the State courts.
With experience showing how slow the process had already been and with England
insisting that a new contract be limited to 1 year, all the Union could look forward
to if it signed this contract was unending talk, argument, and litigation, with no issue
answered until the contract would no longer be in effect anyway.
All this while the Company was also demanding that most of this grievance time
be on the employees' own time, that the cost of arbitration fall entirely upon the
losing party (it had been shared before), and that the Union even pay for printing
the contracts that must be distributed among the employees. Having won, albeit
by a small margin, the only two arbitrations that were held under the MTM system
in its first year of existence, and faced with all these complicating and delaying in-
novations to be lived with later, it is not surprising that the Union demanded the
contract at least be free of any no-strike clause. But here too the Company was
adamant and never waivered from its insistent demand for a full no-strike provision.
5J I Case Company (Reel Island, I71nnois), 118 NLRB 520; F. TV, Woolworth Conr-
pany, 109 NLRB 196, enfd 352 U S 938, reversing 235 F 2d 319 (C.A '9) , V L,R R v
Otis Elevator Co. 208 F 2d 176 (C A 2).
JACOBS MANUFACTURING CO. 55,
5. Implicit in the General Counsel's allegations, but not quite as obscured in the
Union's brief, is the contention that the amount of additional work effort the Com-
pany was seeking to exact from its employees for what they were to be paid was so
"harsh and retrogressive" a demand as to reveal a union animus in the Respondent.
This argument presupposes that there is a line beyond which too great economic
demands by an employer transcend the border of legality under this statute. Where
such a line would be drawn, of course, defies objective criteria. And it may be that
under a different set of facts, or "total picture," such a principle may hold true. I
am aware that following the strike the new complement of employees continued at
work under the system as revised consistent with the Company's proposals rejected
by the Union. However, I do not reach that question here and I in no sense base
my conclusion of bad faith on the fact that the proposals eliminated certain softening
allowances in the production standards formula, reduced others, and made an un-
specified percentage of bonus earnings-or forced incentive-a minimum require-
ment for satisfactory performance at the risk of discharge.
Faced with the accusation of excessive work demands, the Respondent introduced
much evidence intended to prove economic necessity, foreign competition, and un-
satisfactory employee production in the past as justification. As I now appraise the
case as a whole I pass over all this testimony and these exhibits; the Respondent was
not obligated to satisfy the Union, or me, that its economic demands were proper,
economically defensible, or business like.
Because the touchstone of the defense to the entire complaint is that the Union
struck only to resist the greater work performance which was demanded, the Re-
spondent also attempted to prove that in the spring of 1960, certain employees,
abetted by the Union, had engaged in a deliberate holdback or slowdown in their
work.
I find this broad assertion unsupported by the record as a whole. While arguing
with the Union in meetings both before and after the strike, the Company presented
charts prepared from company records intended to convince that some of the strikers
had deliberately held back on their work and that a comparison between the work
of some strikers and some later replacements warranted the same conclusion. The
use of the charts and the talk about them in the meetings served to prove that the
Company's demand for more work was a subject of serious dispute. As proof of what
the company records in fact would reveal, they are purely secondary evidence, con-
clusions drawn from original files not produced in court, and therefore of no
probative value.
The Company also placed into evidence detailed specific production timecards
of certain selected employees, reflecting their individual output before the strike, and
comparable records of individual strike replacements. From among the many
thousands of such detailed production cards in the Company's records this was a
highly selective choice and therefore of slight persuasion. Moreover, as a com-
parison between prestrike and poststrike employees, they also suffer from the fact
that the production standards were greatly changed after the strike, some machines
were altered mechanically, work performed by foremen in training strike replace-
ments is often reflected in those timecards, and many cards credit employees with
production which in fact was "scrap" and therefore went unpaid. Of equal signifi-,
cance is the fact that while particular timecards produced show in some instances
below-standard production, the pertinent departmental averages reveal above-
standard performance. The departmental makeout for incentive earnings declined
apace as the new MTM standards were established early in 1960, but this is in part
explained by the considerable increase-in some instances as much as 100 percent-
in the hourly piece production standard requirements of the new standards. And for
May, June, and July, 1960, even under the new standards, the departmental averages
ran about 115 percent to 119 percent incentive makeout. Indeed, on one occasion
after a number of standards had been in effect for some time, the Company in a
posted notice complimented the employees as a whole for their success in producing
under the new system.
And finally, on this assertion of deliberate slowdown by the employees, the 1959
contract expressly provided employees could be disciplined for misconduct or
deliberate refusal to work; it also provided for outright release of incompetents. The
Company never took any steps before the strike to dismiss or discipline any employee
for the alleged deliberate refusal to work. Dolaher, the industrial engineer, said he
one day clocked a man who produced 131 percent while being surveyed; Dolaher
said the man produced at a much lower rate both before and after that observation.
But Dolaher did nothing about it. In like fashion Zujko, the manufacturing super-
visor, testified that a man who usually earns only 107 percent achieved 139 percent
one day while the supervisor was watching him. Zujko said be called the man "a
first class goldbricker ," and let it go at that time . There is an established system
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of warning slips, first served on employees who deserve them and then placed in
their personnel file. The industrial relations director was asked if any employee
had been given warning slips for this type of misbehavior; his deliberate refusal to
reply convinces me no employee was ever given such warning.
6. An employer's right to specify in the contract its method for establishing wages,
however precise and exacting its system may be, I do not think can be questioned.
Where, however, the complex system, painstakingly detailed as to objective criteria in
extended contract sections and clauses, is simultaneously in other interspersed con-
tract provisions rendered so fluid and elusive as to preclude definitive argument based
on the contract later, the resultant total proposal suggests an intent to avoid altogether
any definitive argreement as to wages. Elsewhere in its proposals the Company
asked the Union to agree that "the Company has and retains the unquestioned right
to revise job evaluations both up and down at its discretion when changes in the
job content warrant changes in evaluation " Another express provision demanded
was that the Company should have "sole judgment" with respect to time evaluations.
Most significant, however, is section 12 of the proposed article XIII, the major section
dealing with the proposed revisions in the MTM standards. It reads as follows:
The Company agrees to recognize the principle of equal pay for the same
quality and quantity of work, regardless of sex, on the same operations where,
however, employees individually perform the job content in full including all
miscellaneous manual work; provided further nothing herein prevents discrimi-
nation between employees in pay because of material differences in ability,
versatility or record, nor will this paragraph prevent an employee who is tem-
porarily transferred to a job, or who is put on a job for physical reasons, being
paid a different amount than is earned usually on the job.
During the conferences the union representatives strongly objected to this para-
graph in particular , but the Company never abandoned its insistence that it remain.
The Union complained that this language made a mockery of the entire precisely
phrased wage incentive system, for, if agreed to, the Company would be free to
pay employees at will, indiscriminately, with only the ever controversial criteria of
"ability, versatility, or record" to be reckoned with. England's response was: "It
means what it says." And, I suppose, this proposal too in another context could be
a proper demand by an employer. But with this clause as a reserve position avail-
able to the Company in any wage rate dispute that might arise, the entire MTM
system became meaningless as a binding agreement between the parties. In turn,
the grievance and arbitration procedures were reduced to a series of empty gestures.
In sum, the Respondent was asking the Union to sign a contract which in reality
was not a contract; it engaged in lengthy discussions over the details and fairness
of the many precise numerical aspects of its proposed wage incentive system, and
argued without end about the new system's impact upon the revised grievance pro-
cedure, while at the same time insisting that all of this would not necessarily be
binding upon the Company at all. But if all this language was to have no binding
effect, if the Employer was to be free to "discriminate between employees," I fail
to see how the Respondent could be credited with any reasonable expectation that
the Union would agree with the total proposals. I can only view the inconsistent
and mutually exclusive proposals which England put together and always insisted
upon, as direct evidence he had no intention of reaching any agreement with the
Union at all. At the hearing England explained that he inserted this section 12
of article XIII "for bargaining purposes." The Union, of course, had no way of
knowing which proposals were seriously intended and which were presented for
strategic bartering only. The Company insisted upon them all, and the Union had
a right to, and could only view the total conduct of the Company as its affected
proper union representation of the employees.
7. Just as section 12 of the incentive wage article is cumulative indication of a
desire by England to remove the Union as an effective voice in negotiating wage
rates or in effectively representing the employees under contract provisions, another
article, first presented to the Union sometime after the initial proposals, points to
the same motivation. An oft repeated contention of the Company in explanation
of what it called productivity problems, was that too many of the employees were
physically unable to work adequately; it kept speaking of the problem of the
"handicapped " Long before contract negotiations started the union officers pro-
tested the Company was exaggerating this problem; they argued the existing con-
tract permitted the Company to downgrade incompetents or infirm employees, and
that its failure to take any such steps proved this was not a great issue. As early
as June 1960 England posted a notice in the plant purporting to detail the debilitating
infirmities of far more than a majority of the total complement of workers. As
the discussions proceeded, the Union suggested there be agreement on what few
JACOBS MANUFACTURING CO. 57
truly infirm persons there were, and that something be done to provide for them,
or to accommodate the just concern of the Company. To resolve this question
England presented the Union with its proposed article XXI-A on September 2, 1961.
Here he suggested contract language detailing a procedure under which the Com-
pany would attempt to relocate "handicapped" employees on less difficult jobs. The
procedure was to be outside the regular provisions of the contract; it called for
shifting of employees without prejudice to any of them; and ended with express
agreement that whatever the Company did pursuant to this article would not fall
within the scope of the grievance procedure. An express part of the article pro-
posed was that the Company would still retain within its discretion the privilege
of outright discharge for medically unsatisfactory employees and that it would be
obligated to apply the suggested replacement procedure only when "in the sole
opinion of the Company" such proceeding would not be impractical.
I cannot know whether the Respondent seriously expected the Union would agree
to this new article. In the framework of the Respondent's constant refrain that
virtually all the employees were seriously incapacitated by various handicaps , agree-
ment by the Union to this proposal would have removed virtually every employee
from protective recourse to the grievance procedure . Again I see in this proposal
another effort, whether seriously intended or not, to prevail upon the Union to
surrender virtually all hiring or discharge rights to the Company and to efface itself
as an effective representative of the employees as a whole.
8. It is not my intention , and I do not deem it necessary , to detail in this report
every detail of the Company 's almost countless proposed innovations placing in-
creased work burdens upon the employees, variously curtailing their previously
enjoyed seniority or other tenure rights, and in many other small but irritating ways
imposing more and more limitations upon the freedom of union representatives to
act in their designated capacities . The General Counsel painstakingly argues pre-
cisely with respect to a great many of these details ; some of them indicate an undue
harsh and belittling attitude toward the Union ; others do not. My conclusion with
respect to the Respondent 's fundamental attitude is a broad one and rests on all
of the record . At the first poststrike conference , however, the Company made certain
changes in its demands , and added others, all of which merit special attention
because they effectively reflect its underlying attitude towards the Union.
On November 9, 1960, the Company demanded that the Union agree in writing
that all strike replacements be deemed permanent employees taking the place of
economic strikers , and that all strike replacements must enjoy superseniority vis-a-vis
any strikers who might ever return. As the General Counsel correctly states in
his brief , from that point on the Company was jousting with the Union toward
achievement of a "phantom contract." Indeed , these demands , on which the
Respondent never really yielded, made theatrical puppets of all the actors in the
subsequent meetings-the company representatives reading their script to work-
men who could be of no concern to the Union and the Union's spokesman disclaim-
ing on behalf of members who had been branded strangers by the Respondent.
The charge of unlawful refusal to bargain was filed on December 5, 1960, and
throughout the many meetings held the following 3 months the Company held firm
to both of these demands. Unquestionably the fundamental purpose was that the
Union thereby indirectly withdraw its charge of illegal conduct against the Re-
spondent and surrender any statutory right the strikers might have to return to
their employment within the law. Had the Union agreed to the first of these two
clauses , any attempt to enforce it against returning strikers in the event the pending
charges prevailed , would have been of no avail .6 And, although it may well be that
mere insistence to impasse upon a clause of this type is an unfair labor practice in
itself, I make no such finding in this case . I do believe , however, that an employer
sincerely endeavoring to reach agreement with the bargaining representative of
its employees , albeit in the course of a strike, will not inject so totally disruptive an
adamant demand . With the spectre of a contractual blackout of the Union standing
between the parties, it would exceed the reaches of fantasy to hold that at any of
the many meetings held after November 9 the Company was extending to this
Union its statutory right as representative of the "employees."
9. And finally, I deem of particular significance the Respondent 's insistence upon
the superseniority clause for the strike replacements on and after November 9.
The Company's industrial relations director, England, admitted at the hearing that
there had been no mention of superseniority for the strike replacements when they
were hired, and that the entire idea was first voiced to them on the very day when
England asked the Union to concede such prerogatives to them. It was long ago
Wooster Davision of Borg-Warner Corporation , 121 NLRB 1492
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
held that an employer who has no need to entice strike replacements with super-
seniority promises violates the statute of insisting upon conferring the superprivilege
upon them later.? And it is now definitely established that in any circumstance-
regardless of a showing of need-an employer may not lawfully confer upon strike
replacements such superseniority or insist upon it in contract negotiations to the point
of impasse.8
The Respondent's initial proposal in the summer of 1960 was for a 1-year contract.
Early in 1961 it changed position and said it would only agree to be bound by
contract until September 15 of that year. On April 7, 1961, after insisting upon the
superseniority clause for 5 months, and at a time when its offer was only for a 5-
month contract, it proposed substituting a recall list for former employees who would
abandon the strike, in place of the superseniority clause. By this time, however, it
had hired over 150 new employees whom it still insisted must be "permanent re-
placements for economic strikers" by agreement. But the changed circumstances,
plus the brief life any recall rights would have had, in effect made the literal with-
drawal of the superseniority clause a meaningless gesture.
This case was not tried on the theory that any particular act or demand of the
Respondent in itself constituted an unfair labor practice, and I therefore view the
Company's unyielding insistence that the Union agree to superseniority for strikers
only as part and parcel of its overall attitude toward the Union. It was accompanied
on November 9 in the first instance by further withdrawal of representation con-
veniences previously enjoyed by the Union. What had been a "union shop" under
the prior contract now was to become a "maintenance of membership" provision;
superseniority for union officers was no longer to be extended. Viewed in the
unfolding pattern of the Respondent's general treatment of the Union throughout the
1960 "negotiations," the superseniority demand makes pertinent the Board's holding
in the Mathieson Chemical case:
. in the circumstances of this case, the Respondent's insistence upon its
seniority clause demand satisfies us that throughout the bargaining period in-
volved, its conduct towards the Unions was colored by a bad-faith resolve
never to come to terms on a written agreement .9
There are other details of evidence throughout this long record supporting the
overall inference which I draw that the Respondent did not bargain with the Union
in good faith as the statute requires. There are other facts, also extensively litigated
at the hearing, which in my opinion do not serve to support the inference. Among
these is an intitial proposal that "setup" men be excluded from the bargaining unit;
as a category such employees had long been represented by the Union. As the
early meetings progressed, however, it developed that the basic disagreement on
this point involved certain employees in a gray area between straight production
employees and persons exercising at least some supervisory authority. With time
the Company offered to compromise this issue and to exclude only what it called
"working foremen." Before the 1959 contract was concluded, and over a year
before the 1960 negotiations here examined were started, the Company decided to
remove some of the Hartford production operations to Clemson, South Carolina,
but withheld announcing its decision until November 1959, after the contract was
signed. At the first meeting in 1960 the Respondent proposed using a tape recorder
to memorialize every word spoken. For one reason or another I deem these facts
of no significant relevance to the main issue raised by the complaint.
Shortly after the strike commenced, company representatives several times stepped
out in front of the entrance to the plant and photographed the picketing that was
going on; they also set up a microphone on the sidewalk to record what the pickets
might be saying. The Company also established an additional guard in front of
the plant at a new roadway that was constructed, and built a guardhouse for him
where he patrolled. The charge filed in this case alleged that these various acts con-
stituted illegal restraint and coercion of the employees and therefore were unfair
labor practices in violation of Section 8(a) (1) of the Act. The General Counsel,
however, expressly refused to make such allegations in the complaint and so advised
the Respondent in writing. At the hearing the Respondent explained these matters
on the asserted ground that there was bad name-calling by the pickets and improper
blockine of access into the plant. As to the new guard it simply said the addition
had nothine to do with the strike. As these matters have no direct relationship to
California Date Growers Association 118 NLRB 246
8 Erie Resistor Corporation , 132 NLRB 621
8 Mathieson Chemical Corporation and/or Olin Mathieson Chemical Corporation, 114
NLRB 486.
JACOBS MANUFACTURING CO. 59
the negotiations which preceded and later followed the events, as the connection
between any possible coercion of employees here and the Respondent's motive
toward the Union is at best remote and tenuous, and as the General Counsel expressly
assured the Respondent it would not be called to account for the actions in question,
I deem it pointless to lengthen this report with the details and have excluded them
entirely from my consideration of the case.
In conclusion, I find that the record in its entirety fully supports the complaint
allegation that on July 11, 1960, and thereafter the Respondent failed to bargain
in good faith with the Union and thereby refused to bargain in violation of
Section 8(a) (5) and (1) of the Act.10 I also find, as further alleged in the complaint,
that when the employees went on strike on September 16, 1960, they did so to protest
the Respondent's illegal refusal to bargain prior thereto, and therefore became from
that day forward unfair labor practice strikers.
Termination of the Strike, Unconditional Offer To Return to Work, and Refusal
To Reinstate the Strikers
When the Union abandoned the strike, on June 18, 1961, all of the approximately
211 employees who had struck made unconditional offer to return to work. There
were at that time approximately 155 employees in the plant who had been hired
as replacements. The Union called upon the Respondent to release the employees
who had been taken on after the strike and to restore the returning strikers to work.
The Respondent refused this request, retained the replacement, and refused to rein-
state all but about 10 of the strikers. These it assigned to available work which
the replacements could not do.
Because they were unfair labor practice strikers, the returning strikers were en-
titled to return to their work and to perform whatever work duties were available
in the plant at that time, and the Respondent was obligated to release each one of
the employees it had hired after the strike to replace them." I find that by its
refusal to reinstate the returning strikers on June 18, 1961, the Respondent violated
Section 8 (a) (3) and (1) of the statute.
The complaint, as amended, sets out the names of 209 employees representing the
strikers who offered to return to work. The record does not indicate which 10 or
so of these were restored to work at that time. At the hearing the Respondent con-
tended that even had it discharged all the strike replacements, the volume of work
available at that time would have been less than enough to employ all of the return-
ing strikers. There thus remains to be determined how many positions were in fact
occupied by strike replacements at that time, how many of the returning strikers
the Respondent could have restored to work in the light of what work was available,
and, in the normal application of the Respondent' s past practices-perhaps consistent
with the expired 1959-60 contract-which of the total employees named in the
amended complaint would have started work that day. Because the July amendment
to the complaint came 21/2 months after the start of the trial of this case, which is
essentially a refusal-to-bargain issue, and because the detailed litigation of these
last questions is contingent upon final resolution of the basic 8(a) (5) issue, I viewed
them as essentially matters more appropriately to be resolved as aspects of the com-
pliance stage of this proceeding. How many returning strikers would in fact have
been restored to work in July, and which among them would normally have been
entitled to work, absent the unlawful discrimination against them, need not be
resolved now. My finding of illegal discrimination against employees therefore
runs to the entire group of returning strikers.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations set forth in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor pracices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
10 Compare the following Board decisions , although no two cases , In this area , are factu-
a11y parallel : "M" System, Inc , Mobile Home Division Mid-States Corporation, 129 NLRB
52T; Fetzer Television , Inc., 131 NLRB 821 ; California Girl, Inc., 129 NLRB 209.
21 Norrish Plastics Corp ., 127 NLRB 150.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has been found that on July 11, 1960, and at all times thereafter the Union was
the authorized and exclusive representative of the Respondent 's employees in an
appropriate unit for the purposes of collective bargaining , and that on and after
that date the Respondent refused to bargain with said representatives in violation
of the Act . Accordingly , I shall recommend that the Respondent be ordered, upon
request, to bargain with the Union as the authorized and exclusive representative of
its employees in the appropriate unit.
It has been found that the Respondent unlawfully discriminated against a large
number of its employees with the respect to their hire and tenure of employment.
I shall recommend that the Respondent take appropriate action to undo the effects
of these unfair labor practices by reinstating to their former employment all of
those employees who, upon compliance investigation , will appear to have been
entitled to such reinstatement on June 18 , 1961. I shall also recommend that the
Respondent be ordered to make all such employees whole for any loss of pay he or
she may have suffered as a result of the discrimination , by payment to him or her
of a sum of money equal to that which he or she normally would have earned from
the date of the discrimination to the date of a proper offer of reinstatement , less his
or her net earnings during said period, the payment to be computed upon a quarterly
basis in the manner established in N.L.R .B. v. Seven-Up Bottling Company of
Miami, Inc., 344 U.S . 344. I shall recommend also that the Respondent preserve
and, upon request , make available to the Board or its agents, for examination and
copying, all payroll records, social security payment records , timecards, personnel
records and reports, and all other records necessary to analyze the amounts of
backpay due and the rights to reinstatement under the terms of this Recommended
Order.
In order to make effective the interdependent guarantees of Section 7 of the Act,
I shall recommend further that the Respondent cease and desist from infringing
in any manner upon the rights guaranteed in such Section.
Upon the basis of the above findings of fact , and upon the entire record in this
case , I make the following:
CONCLUSIONS OF LAW
1. Jacobs Manufacturing Co., is an employer within the meaning of Section 2(2)
of the Act.
2. International Union , United Automobile, Aircraft and Agricultural Implement
Workers of America, UAW, AFL-CIO, and its Local 379, are labor organizations
within the meaning of Section 2(5) of the Act.
3. All hourly rated production and maintenance employees at the Respondent's
West Hartford, Connecticut, plant, but excluding executives , general foremen, fore-
men, assistant foremen , watchmen and guards , office employees , count station
clerks, timekeepers , cafeteria employees , medical employees , and temporary employ-
ees and employees with authority to hire, promote, discharge , or discipline , consti-
tute a unit appropriae for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
4. International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, UAW, AFL-CIO, and its Local 379, were on July 11, 1960,
and at all times since have been , the exclusive bargaining representative of all the
employees in the aforesaid appropriate unit for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act.
5. By refusing to reinstate or otherwise discriminating against its employees, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (3) of the Act.
6. By refusing to bargain collectively with the Union, as the exclusive representa-
tive of the employees in the aforesaid appropriate unit , as found above , the Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8(a)i(5) of the Act.
7. By the foregoing conduct the Respondent has interfered with , restrained, and
coerced employees in the rights guaranteed in Section 7 of the Act, and thereby
has engaged in and is engaging in unfair labor practices within the meaning of Section
8(a).(I) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]