Moore Drop Forging Co.

National Labor Relations Board - Board Decisions

Aug 22, 1963

144 N.L.R.B. 165 (N.L.R.B. 1963)

MOORE DROP FORGING COMPANY 165
Reasonable steps shall be taken by the Respondent to insure that said notices are
not altered , defaced, or covered by any other material.
(d) Notify the Regional Director for the Twenty-seventh Region , in writing , within
20 days from the receipt by the Respondent of a copy of this Intermediate Report
and Recommended Order , what steps the Respondent has taken to comply therewith.15
It is further recommended that unless on or before 20 days from the date of its
receipt of this Intermediate Report and Recommended Order the Respondent notify
the Regional Director that he will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the Respondent to take the
action aforesaid.
15 In the event that this Recommended Order be adopted by the Board , paragraph 2(d)
thereof shall be modified to read: "Notify said Regional Director , in writing , within
10 days from the date of this Order , what steps the Respondent has taken to comply
therewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Relations
Act, as amended , we hereby notify our employees that:
WE WILL, upon request , bargain collectively with International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of America , Milk Drivers
and Dairy Employees , Local 537, as the exclusive representative of distribu-
tors and/or owner-operator drivers among others in the bargaining unit.
WE WILL NOT bargain individually with or unilaterally change the wages, hours,
or working conditions of our route drivers or any others in the bargaining unit.
WE WILL set aside all existing agreements with our distributors and/or
owner-operator drivers without prejudice to the seniority or other rights and
privileges of each , and we will make each whole for loss of pay, if any, he may
have suffered by reason of employment under the individual agreement.
WE WILL NOT, by refusing to bargain collectively or in any other like or related
manner, interfere with, restrain , or coerce employees in the exercise of their right
to self-organization , to form , join, or assist any labor organization , to bargain
collectively through representatives of their own choosing, to engage in con-
certed activities for the purpose of collective bargaining or other mutual aid or
protection , or to refrain from any or all such activities except to the extent that
such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Section 8(a)(3)
of the Act.
UNITED DAIRIES, INC.,
Employer.
Dated------------ ------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office , 609 Rail-
way Exchange Building , Denver , Colorado, Telephone No. Keystone 4-4151, Exten-
sion 513 , if they have any questions concerning this notice or compliance with its
provisions.
Moore Drop Forging Company and International Union , United
Automobile, Aerospace and Agricultural Implement Workers
of America, UAW-AFL-CIO, Local No. 192. Case No. 9-CA-
2743. August 9393,1963
DECISION AND ORDER
On May 17, 1963, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that
144 NLRB No. 23.
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. He further found that the Respondent had not en-
gaged in certain other unfair labor practices alleged in the complaint
and recommended that such allegations be dismissed. Thereafter, the
Respondent filed exceptions to the Intermediate Report and a sup-
porting brief. The General Counsel and the Charging Party filed no
exceptions.
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 Leedom, Fanning, and
Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in the case including the Intermediate Report, the exceptions,
and the brief, and hereby adopts the findings,' conclusions,' and recom-
mendations 3 of the Trial Examiner, with the modifications 4 indicated
herein.
With respect to the discharge of R. E. Puckett, Member Leedom
agrees that Respondent violated Section 8(a) (3) in procuring the
discharge through its general foreman. In so finding, however, Mem-
ber Leedom, unlike his colleagues, does not rely upon Northern Cali-
fornia Chapter, Associated General Contractors etc., 119 NLRB 1026,
cited by the Trial Examiner. See Hurd Corporation, 143 NLRB 306.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.
1 Daigneault did not admit, as found by the Trial Examiner, that his sole duty was to
negotiate a contract with the Union at Hillsboro. However, neither the Trial Examiner's
ultimate 8 ( a) (5) holding nor our concurrence therewith is affected by this corrected
finding of the Trial Examiner.
2 Relying upon Respondent 's entire course of conduct herein we conclude , as the Trial
Examiner did , that Respondent engaged in mere surface bargaining in defiance of the
Act's requirement that it bargain in good faith . In concluding that Respondent violated
Section 8 ( a) (5) of the Act, the Trial Examiner relies in part upon certain conduct by
Respondent, which he found constituted per se violations of the mandate of the Act to
bargain in good faith . In view of our finding based upon Respondent 's entire course of
conduct, we need not pass upon the Trial Examiner ' s findings of per se violations.
3 There being no exception taken to the Trial Examiner 's finding that the 8 ( a) (3) allega-
tion as to Greene be dismissed , we adopt that finding pro forma.
4 The Appendix attached to the Intermediate Report is hereby modified by adding the
following immediately below the signature line at the bottom of the notice:
Nova -We will notify any of the above -mentioned employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended , after discharge from the Armed Forces.
MOORE DROP FORGING COMPANY 167
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed by the above-named labor organization on November 27,
1962, the General Counsel of the National Labor Relations Board on January 11,
1963, issued his complaint and notice of hearing thereon. On January 25, 1963,
the Respondent filed its answer. The complaint alleges and the answer denies that
the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1)
(3), and (5) of the National Labor Relations Act, as amended. Pursuant to notice,
a hearing was held in Hillsboro, Ohio, on March 26, 27, and 28, 1963, before Trial
Examiner C. W. Whittemore.
At the hearing all parties were represented by counsel, and were afforded full
opportunity to present evidence pertinent to issues, to argue orally, and to file briefs.
Briefs have been received from General Counsel and the Respondent.
Disposition of the Respondent 's motion to dismiss the complaint , upon which
ruling was reserved at the conclusion of the hearing, is made by the following find-
ings, conclusions , and recommendations.
Upon the record thus made, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Moore Drop Forging Company is a Massachusetts corporation having plants in
various parts of the United States. At its Hillsboro, Ohio, plant (with which this
proceeding is concerned ) it engages in the manufacture of automobile door hinges.
During the year preceding issuance of the complaint the Respondent had a direct
outflow of products in interstate commerce valued at more than $50,000. During
the same period it had a direct inflow of raw materials in interstate commerce valued
at more than $50,000.
The complaint alleges, the answer admits, and it is here found that the Respondent
is engaged in commerce within the meaning of the Act.
II. THE CHARGING UNION
International Union, United Automobile, Aerospace and Agricultural Implement
Workers of America, UAW-AFL-CIO, Local No. 192, is a labor organization ad-
mitting to membership employees of the Respondent at its Hillsboro, Ohio, plant.
III. THE UNFAIR LABOR PRACTICES
A. Setting and issues
All of the conduct and events claimed by General Counsel to have been violative
of the Act occurred following a Board conducted election among the Respondent's
Hillsboro employees in January 1962. The Charging Union was duly certified on
January 22, 1962. The parties are in no dispute as to the appropriate unit alleged
or as to the fact that the Charging Union has been since its Board certification and
now is the exclusive bargaining representative of all employees in that unit.
Between the date of the certification and November 26, 1962, when employees of
the plant went on strike, more than 20 negotiating meetings were held. No agree-
ment was reached by the date of the strike, and none has been reached since then,
although it appears that a number of meetings were held after the strike began.
General Counsel contends that the strike was caused and prolonged by the Re-
spondent's unfair labor practices.
The chief issue raised by the complaint is the claim that the Respondent has failed
and refused to bargain in good faith with the Union, in violation of Section 8(a) (5)
of the Act. Coexistent issues are the discharges of two employees, Puckett and
Greene, and various alleged acts of interference, restraint, and coercion.
B. Interference, restraint, and coercion
Findings as to the following incidents are based , in the main , upon the credible
testimony of the employees involved.
(1) On numerous occasions before the strike began on November 26, foremen
queried employees as to whether or not they were going on strike and declared
that management would not sign a contract with the Union. Instances are:
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a. Second-shift Foreman Leroy Clark told employees Marvin Gray and R. L.
Berry, some 3 weeks before the strike, that the Union would "never get in" and
that if the employees went on strike they would be fired within 3 days. Clark further
said that the Company would move before it would give the Union a contract. On
the Saturday preceding the strike Clark warned Gray to "be back here on Monday
morning or you will be fired in 3 days."
b. On several occasions the same foreman talked with employee J. E. Ferneau,
who was an employee member of the negotiating committee, about the progress of
such negotiations. He repeatedly told Ferneau that the Company would never enter
into a contract with the Union.'
c. Employee Robert Aber did not go out on strike with fellow workers the first
day. It is undisputed that Foreman Clark assigned him to a better-paying machine
than he had been operating and told him that "if the other fellows come back in
from on strike they would have to take the machines that was left."
d. In November, before the actual strike, General Foreman MacBrian remarked
to employee Wayne Gregory, "I thought you were going on strike." Gregory re-
plied that the Union had not authorized it. MacBrian then declared that he wished
they would hurry up and strike-he wanted a vacation himself. He then added that
the Union would not get a contract anyway. Just before the strike began MacBrian
again asked Gregory, in the presence of other employees, when they were going out.
After repeating his wish that they would "hurry up" he again declared that the
Union would get no contract and said that anyone who walked out would be fired.2
e. About 2 weeks before the strike Foreman W. E. Reno asked employee W. D.
Chaney if they were going to work the following Monday, and added that if they
went out they would "never get back in." 3
f. Two or three weeks before the strike Foreman Hughie Dyer queried Donald
Ballein and another employee as to whether or not they were going on strike. He
told them that they would not get a contract and would "probably" lose their jobs
if they went on strike.
g. In mid-July the same foreman told employee J. R. Hall, in discussion of the
40-hour week, that the Union had no contract then and was "not going to get one."
In mid-November, after asking this employee if he was coming in to work the follow-
ing Monday, Dyer warned him that anyone who did not "show up" for work would
lose his seniority rights and insurance benefits and would be replaced.
Conclusions
In addition to the credible testimony of the employees concerned, the admissions
of Plant Superintendent Reardon as a witness for the Respondent establish a substantial
basis for belief that the several foremen did not hesitate to tell employees under them
that management would not sign a contract. Reardon testified that such foremen
attended frequent meetings at which he, as a member of the Respondent's negotiating
team, kept them fully advised concerning negotiations. And, as found in a later
section , management made it amply clear to the union negotiating committee at many
meetings that it would sign no contract other than the one it initially proposed.
The Trial Examiner concludes and finds that the above-quoted remarks of the
several foremen concerning the futility of negotiations and the reprisals which would
be visited upon those who went on strike, all of which preceded the actual strike,
constituted interference, restraint, and coercion.
1 Clark admitted discussing negotiations with Ferneau and having asked Berry if he was
going on strike, but said that "not to my knowledge" had he made the above-quoted re-
marks attributed to him.
2 The record also contains the credible testimony of employee Marion Griffith, a member
of the negotiating committee, to the effect that when he complained to MaeBrian that
someone had smeared grease on the controls and engine of his forklift, MaeBrian had told
him that some of the "boys" had it in for him because of his union activity, and that on
one occasion, when a couple of them had wanted to "whip" Griffith, he had told them to
"go ahead" but wait until they got him "the hell off company property" The Trial
Examiner does not credit MacBrian's testimony in denial of the latter remark, but makes
no finding of an unfair labor practice because Griffith placed it as having occurred in the
latter part of May or June, a date which may or may not have been within the 6 months'
period, the charge having been filed on November 27. Nor does the Trial Examiner be-
lieve MacBrian's denial of the remarks attributed to him by Gregory, found above The
general foreman, as noted fully hereinafter, admitted that he brought about the termina-
tion of outside employment of employee Puckett.
8 Reno admitted having asked this employee and others if they were going on strike, but
denied the threat. His denial is not credited.
MOORE DROP FORGING COMPANY 169
Also violative of Section 8(a) (1) of the Act was the implied promise of benefits,
made by Foreman Clark to employee Aber , if he did not join his fellow workers on
strike.
C. The discharges of Puckett and Greene
Employee R. E. Puckett was an active union member , well known to be such by
management since he served as a member of the employees ' negotiating committee.
On or about November 1, 1962 , he was employed by Foreman James Willman to work
part time at the latter 's filling station . When hired for this part-time job, he was
told by Willman that he expected to have the station about 90 days, and that he could
expect to work for him as long as he had the station.
Puckett worked but the 1 day for Willman. The foreman called him into the office
and told him that he had to let him go because General Foreman MacBrian,
previously identified , had telephoned to him and made it clear that he either had to
let Puckett go or lose his own job . Willman further admitted that he was in a
"financial bind" at the time, that his wife was expecting a baby, and he could not
afford to lose his own job at the factory.
As a witness MacBrian admitted having called Willman and having asked him if
he "thought it looked good for a supervisor of Moore Drop Forging Company
employing a known union official ." According to Willman-who as a witness for
the Respondent displayed marked reluctance and hesitation-MacBrian told him
in the telephone conversation that "management and some employees thought it was
a bad thing to have a union man in there working for me when I was still a
supervisor."
Also in his confused and somewhat evasive testimony Willman attempted to make
it appear that he actually did not assure Puckett when hiring him of continued part-time
employment . It is clear from his own testimony , however, that the employee he
hired to replace Puckett was still working for, him at the time of the hearing. In
December 1962, Willman quit the Respondent 's employment and is now running his
filling station.
The Trial Examiner is convinced and finds that General Foreman MacBrian
caused Foreman Willman unlawfully to discharge Puckett, to discourage union
membership and activity ,4 and that thereby the Respondent violated Section 8(a) (1)
and (3) of the Act.
The Trial Examiner does not believe that the evidence in the record will support a
similar finding as to Greene . In the first place the record fails to show that Greene
either was, or was believed by management to be, a union adherent on November 4,
1962. He did not go on strike until November 26.
It appears that he did work 1 day for Willman, after Puckett 's leaving-on
November 4. It was a Sunday. When he came in the following Sunday, Willman
simply told him that he did not need him any more . According to Greene's own
testimony Willman then or later told him that he would not treat him the way he had
had to treat Puckett.
Under these circumstances the Trial Examiner cannot find that the complaint as
to Greene is sustained by the preponderance of credible evidence.
D. The refusal to bargain
The complaint alleges that since late May or early June 1962, and continuing up
to the date of its issuance , the Respondent has refused to bargain in good faith
with the Union by engaging "in a course of conduct calculated to undermine the
Union 's status as bargaining agent ." It is claimed that such conduct included:
(a) Granting periodic unilateral wage increases without consulting with the
Union.
(b) Granting holiday pay on July 4, contrary to prior practice , without con-
sultation with the Union.
(c) Failing to vest in its chief negotiator , F. R. Daigneault , bargaining au-
thority to enter into a contract or approve changes in contract proposals.
In Northern California Chapter, Associated General Contractors , 119 NLRB 1026, at
1032, the Board stated: "It is sufficient for a finding of a violation of Section 8(a) (3)
and (1 ) that an employer , who meets the Act's definition of an employer, has accom-
plished an act while [which] results in a discrimination with respect to the `tenure of
employment' of employees who meet the Act's definition of employees It is the discrimina-
tion that encourages or discourages union membership that is of primary concern far
determining the issue and not the specific relationship between the discriminating 'em-
ployer' and the discriminated against 'employees.11
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Refusing to deviate from a fixed bargaining position.
(e) Adopting a fixed position regarding dates for negotiations without con-
sulting with the Union.
(f) Asserting the futility of negotiations unless the Union made radical changes
in its positions.
At the hearing General Counsel, without formally amending the complaint, took
the position that he rested his claim of refusal to bargain in good faith upon events
occurring before November 27, 1962, the date of the filing of the charge and the day
after the strike began.
In order to narrow the issues for consideration below, the Trial Examiner states here,
as he clearly implied at the hearing , that he does not consider that item ( f) above, even
if proven, either constitutes refusal to bargain, per se, or is a substantial factor in an
entire course of conduct.
As noted earlier in this report more than 20 negotiating meetings were held up
to the date of the strike. Since the Act requires, as a condition of good-faith bargain-
ing, that the parties "meet at reasonable times and confer in good faith ," the Trial
Examiner considers,that item (e) above should first be reviewed.
Item (e). The parties stipulated at the hearing that negotiating meetings were held,
before the strike, on February 20, March 6, March 20, April 3, 4, 17, and 18; May 1,
2, 16, and 17; June 6, 7, 19, and 20; July 17, 18, and 31; August 1, September 11,
October 3, and November 7 and 20.
At these negotiating sessions the Respondent's chief negotiator was Francis R.
Daigneault, assistant general manager for the Respondent's six plants, with his
home office in Springfield, Massachusetts. According to his own testimony his
"duties are strictly labor relations."
Undisputed testimony establishes that early in the negotiating sessions Daigneault
unilaterally decided upon, announced, and thereafter-with an occasional excep-
tion-maintained his own schedule of meetings despite the protest of union nego-
tiators. He informed the Union that he would negotiate only during the hours of
10 to 12 and from 2 to 5, 2 consecutive days every 2 weeks. When the union
representative in April or May vigorously protested against this limited but set
schedule, it is uncontradicted that Daigneault bluntly informed him that he "didn't
give a damn" if he liked it or not.
As a witness Daigneault explained that he did not want to prolong any meeting
beyond 5 p.m. by stating that "I happen to be an individual who retires rather early,
at 9.30 or so in the evening I consider is time to retire." He gave no explanation
for imposing the limitation of meeting for 2 consecutive days every 2 weeks. Had
he been involved as a production manager or sales manager or in some other branch
of the business, an inference might be warranted without other evidence that other
demands upon his time prevented more frequent or more extended meetings. Since
he admits that his sole duties , explicitly assigned to him by his board of directors,
was to negotiate a contract with the Union at Hillsboro, the Trial Examiner is
convinced and finds that in this respect he failed to comply with the language and
intent of Section 8(d) of the Act.
Instead of good-faith bargaining, in the opinion of the Trial Examiner, Daigneault's
insistence upon his announced schedule was effective notice to the employee's bar-
gaining representative that his will was to prevail, whatever the Union desired. It is
inconceivable to the Trial Examiner, who is not without some past experience in
that field, that a businessman sincerely desirous of reaching contractual agreement
with an equal would establish in advance a fixed schedule of meetings. In any
event, by stating that he did not "give a damn" whether the Union liked the schedule
or not, he effectively declined to negotiate on the bargaining issue of reasonable meet-
ing dates.
Item (c). This item relates to Daigneault's authority as bargaining representative
for the employer. As noted above, the complaint alleges that the Respondent
"fail [ed] to vest" in Daigneault, its chief negotiator, appropriate bargaining authority,
and thereby failed to bargain in good faith. The plain import of this allegation is
to contend that Daigneault did not, as a fact, possess bargaining authority to the
point of execution of a collective-bargaining contract or to approve changes in
contract proposals.
General Counsel adduced no direct evidence to support the precise allegation. He
did, however, bring forward credible and uncontradicted testimony to the effect that
Daigneault made statements at the bargaining table which plainly implied that he
possessed only limited authority.
Although as a witness Daigneault stated flatly that he possessed "unlimited" ne-
gotiating authority, he did not dispute Union Representative Haake's testimony
that at a meeting early in June he had said that it would be "most difficult for him
MOORE DROP FORGING COMPANY 171
to give us an answer to make concessions on there, because it would take approval
by the board of directors." Nor is it contradicted that upon this claim of lack of
authority the union representative protested, raising a question as to the futility of
negotiating if Daigneault did not have the authority to come to agreement "at that
table." Daigneault's only response, so far as the record shows, was to contend that
Haake himself "had a boss" he would "have to get an answer from." Haake assured
him that he "had full authority to sit there and sign any agreement that we reached
at that table."
It is also undisputed that when Daigneault submitted the Company's proposal of
a contract early in negotiations he stated that its provisions had been approved by
the board of directors and that it was, in effect, being submitted on an "accept or
decline" basis.
And the following colloquy is quoted from Daigneault's own testimony on cross-
examination:
Q. Now, you stated that you have on many occasions offered to enter into a
contract with the union. Did you ever have such a contract prepared prior to
the time of the strike, that you were ready to submit to the union?
A. Our original one, as you know, was April 3.
Q. Yes, sir, that is correct. Are you referring to that one now, that you
were ready to sign?
A. Certainly.
Q. You were ready to sign that one at any time?
A. Sure, if they would take it.
Accepting Daigneault's testimony that he actually had full authority to negotiate
a contract, then good-faith bargaining principles plainly dictated that he should
have made that fact clear to the union representatives. Producing deception at the
bargaining table seldom leads to an amicable solution to negotiating problems.
In short, the Trial Examiner concludes and finds that the misleading of union
representatives as to Daigneault's actual authority constituted, per se, failure to
bargain in good faith.
Items (a), (b), and (d). In view of the Board's decision in National School Slate
Company, 137 NLRB 925, these three items will be jointly considered.
In preliminary summary, the evidence warrants the conclusion that while refusing
to offer or agree to any wage increase, during the course of negotiations and before
the strike the Respondent unilaterally granted certain increases as well as holiday
pay for July 4 to employees in layoff status.
There is no dispute as to the fact that at a July meeting Daigneault stated flatly
that the Respondent would not give "one red cent" as a raise or to increase the cost
of operation. He did not recede from that position up to the date of the strike.
His own testimony supports the conclusion:
On the proposal of the economics we took rather a firm position there, for
economic reasons. We know of the cost of running this plant, and we know
the hinge business , being in it for many years. So our position was firm on
economics for an increase.
Of marked significance to the question of "good faith bargaining ," in the opinion of
the Trial Examiner, was the exchange between counsel which followed Daigneault's
above-quoted statement of position , which was in reply to a question from his own
counsel , Atwood, who had participated in the negotiations . Attorney Goerlich broke
in:
I would like to pose an objection. It seems to me that what the company is
trying to do now is justify its reason for not making a wage increase based upon
its inability to operate at a profit. If that is true, we want to look at their books
and records right now.
Counsel Atwood then hastily repudiated his own witness' testimony, by declaring:
We said during the bargaining that this was a "won't do" position.
Mr. GOERLICH: Is it your defense in this case that you are not economically
able to give these individuals raises?
Mr. ATwooD: No.
Whether as a fact Daigneault at the bargaining table was somewhat less than
candid, as he had been in the matter of his negotiating authority, and his real reason
for refusing to grant any increase was "economic" as he stated on the witness stand,
testimony of union witnesses supports Atwood's assertion that at the bargaining table
the Respondent simply said that its refusal was based upon "won't do" rather than
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"can't do ." Taking this position , of course , under court decisions relieved the Re-
spondent of possible embarrassment had it been required to permit examination of
its records to support a claim of financial inability to grant raises.
At the same time , that the Respondent stood firmly on its admitted "won't do"
platform, it actually granted increases and holiday pay without consulting with the
Union.
The Respondent maintains that it was privileged to give these increases and the
holiday pay because they were in conformance with a practice set up before the
election and certification of the Union.
In his able brief, Attorney Mittendorf attacks the validity of the "practice" claim.
He apparently has carefully analyzed certain documents in evidence and points out
that company records of the actual increases fail by a large degree to support the
claim that they were granted in accordance with the purported formula or policy.
The Trial Examiner has spot-checked these documents, and agrees with General
Counsel 's appraisal of them.
However, in view of the above-noted Board decision, the Trial Examiner con-
siders it unnecessary to rely upon such appraisal of the records . In the National
School Slate case it appears that certain raises were according to "custom." Yet
the Board concluded:
. without discussing the particular wage increase involved with the Union-
and at the same time it refused to offer any wage increase to the Union-the
Respondent independently put its own unilaterally determined merit increases
into effect . Such conduct is clearly in derogation of the Respondent 's obligation
under the Act to bargain with the certified representative of its employees regard-
ing any matter affecting wage rates.
By taking unilateral action , the Respondent narrowed and impaired the
employees ' opportunity to share in the determination of the terms and conditions
of their employment, thereby interfering with their right to bargain collectively
under the Act. Accordingly , we find that the Respondent 's action in granting
unilateral merit increases during negotiations was in violation of Section 8 (a) (1)
and (5) of the Act.
The Trial Examiner concludes and finds that the granting of the holiday pay to
laid-off employees without consulting with the Union falls within the same category
as wage increases.
In short, the Trial Examiner concludes and finds that the preponderance of
credible evidence sustains that allegations of the complaint on these matters, and
that by unilaterally granting increases and holiday pay while at the same time refusing
to deviate from its fixed position not to offer any wage increases in its negotiations
with the Union the Respondent has refused to bargain in good faith.
Conclusions in General as to Refusal To Bargain
It has been found above that certain actions of the Respondent during the course
of negotiations constituted, per se, violations of the mandate of the Act as to the
conduct of bargaining in good faith.
The complaint also alleges that the course of conduct from early June up to the
time of the strike was for the "purpose of undermining the Union." The allegation
includes the acts of unlawful discrimination as well as those of interference, restraint,
and coercion.
The Trial Examiner finds merit in this contention . The collective-bargaining
negotiations took place in a context of unfair labor practices and cannot reasonably
be dissociated. The foremen, admittedly informed of the progress of negotiations,
repeatedly told employees , in effect , that the Company would never sign a contract
with their representative. Events proved the accuracy of their statements. The record
fully establishes the fact that, except for minor deviations from its original proposal,
which was barren of economic benefits, the Respondent up to the time of the strike
would sign no other contract than that which it had itself submitted, on an "accept
or reject" basis . MacBrian's admitted pressure upon Willman to dispense with
Puckett's services when not at the factory had , according to his own testimony, as its
motive "management 's" disapproval of the employee serving on the negotiating
committee.
Daigneault's own conduct , as chief negotiator, was demonstrative of the Respond-
ent's intent not to reach an agreement which the Union , as the representative of the
employees, could reasonably accept. He misled its negotiators as to his own authority.
And by arbitrarily setting up a precise schedule of days and times he would agree to
come to Hillsboro for negotiations he not only served notice that his was to be the
MOORE DROP FORGING COMPANY 173
judgment as to "reasonable times" for meeting but also made it plain to the Union
that surface bargaining of an indefinite period and not a mutually agreed-upon con-
tract was the end he sought.
All such conduct, in the opinion of the Trial Examiner , was for the unlawful
purpose of undermining the Union as the authorized bargaining representative of the
Respondent's employees and, in addition to the per se conclusions reached above,
constituted refusal to bargain in violation of Section 8(a)(1) and (5) of the Act.5
Finally, the Trial Examiner concludes and finds that by its unlawful conduct, found
above, the Respondent caused the strike beginning on November 26, 1962, and by
its failure to remedy such unfair labor practices it has prolonged said strike.
N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Certain of the activities of the Respondent, set forth in section III, above, occurring
in connection with the operations of the Respondent described in section I, above,
have a close , intimate , and substantial relation to trade , traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices in viola-
tion of the Act, the Trial Examiner will recommend that it cease and desist there-
from and take certain affirmative action to effectuate the policies of the Act.
It will be recommended that the Respondent, upon request, bargain collectively
in good faith with the Union concerning rates of pay, wages, hours , and other terms
and conditions of employment and, if an understanding is reached , embody such
understanding in a signed agreement.
It has been found that the Respondent, by its unlawful conduct prior to that date,
caused the strike which began on November 26, 1962, and which at the time of the
hearing was still in effect. It will therefore be recommended that upon an uncon-
ditional application, the Respondent offer immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their seniority and
other rights and privileges, to all those employees who participated in the strike, dis-
missing, if necessary, persons hired by the Respondent on and after November 26,
1962. (Almeida Bus Lines, Inc., 142 NLRB 445.)
It will also be recommended that the Respondent make whole the foregoing em-
ployees for any loss of pay suffered, or which they may suffer, by reason of the Re-
spondent's refusal , if any, to reinstate them in the above-described manner, by pay-
ment to each of them of a sum of money equal to that which each normally would
have earned as wages during the period from 5 days after the date on which the
employee unconditionally has applied for reinstatement to the date of the Re-
spondent 's offer of reinstatement, less his net earnings , if any, during said period,
with backpay to be computed on a quarterly basis in the manner prescribed by the
Board in F. W. Woolworth Co., 90 NLRB 289. Interest at the rate of 6 percent per
annum shall be added to the backpay to be computed in the manner set forth in
Isis Plumbing & Heating Co., 138 NLRB 716.
It will also be recommended that the Respondent make whole, in the above-
described manner, employee Puckett for any loss of pay he may have suffered, by rea-
son of the discrimination against him, by payment to him of a sum of money equal
to the amount of part-time wages he would have earned but for his exclusion from
employment by Foreman Willman, as found above, during the period from Novem-
ber 1, 1962, to the date when such part-time employment would normally have
ceased , the latter date to be determined at the compliance stage of these proceedings.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Union, United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW-AFL-CIO, Local No . 192, is a labor organization
within the meaning of Section 2(5) of the Act.
5In substantial respect and degree, the facts of this case are similar to those found by
the same Trial Examiner in Reed & Prince Manufacturing Company, 205 F. 2d 131, 134
(CA. 1), cert. denied 346 U.S. 887.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. All production and maintenance employees of the Respondent at its Hillsboro,
Ohio, plant, including plant clerical employees, but excluding office clerical em-
ployees and professional employees, guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
3. By virtue of Section 9(a) of the Act the said labor organization has been since
January 22, 1962, and now is, the exclusive representative of all employees in the
said appropriate unit for the purpose of collective bargaining with respect to rates
of pay, wages, hours of employment, and other terms and conditions of employment.
4. By refusing, since on or about June 6, 1962, to bargain collectively in good
faith with the said labor organization as the exclusive representative of all employees
in the said appropriate unit, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (5) of the Act.
5. By discriminating as to his tenure of employment against employee Puckett,
thereby discouraging membership in and activity on behalf of the above-named
labor organization, 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 interfering with, restraining, and coercing employees in the exercise of rights
guaranteed by Section 7 of the Act, the Respondent has engaged in and is engaging
in unfair labor practices in violation of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
8. The Respondent has not engaged in unfair labor practices with respect to em-
ployee Greene.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, the Trial Examiner recommends that Moore Drop
Forging Company , its officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with International Union , United
Automobile , Aerospace and Agricultural Implement Workers of America, UAW-
AFL-CIO, Local No. 192 , as the exclusive representative of its employees in the
appropriate unit described below-
All production and maintenance employees of the Respondent at its Hillsboro,
Ohio , plant, including plant clerical employees, but excluding office clerical em-
ployees , and professional employees, guards, and supervisors as defined in the Act.
(b) Discouraging membership in and activity on behalf of the above -named or
any other labor organization by discharging or causing to be discharged any of its
employees because of their union membership or activities , or in any other manner
discriminating in regard to hire or tenure of employment , or any term or condition
of employment.
(c) Threatening employees with discharge because they engage in protected
concerted activities , and informing employees that the Respondent will not sign
a contract with the above -named Union.
(d) In any other manner interfering with, restraining , or coercing employees
in the exercise of the right to self-organization , to form labor organizations , to join
or assist the above-named or any other labor organization, to bargain collectively
through representatives of their own choosing , and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities , except to the extent that such right
may be affected by an agreement requiring membership in a labor organization as
a condition of employment , as authorized in Section (a) (3) of the Act . as amended.
2. Take the following affirmative action, to effectuate the policies of the Act:
(a) Upon request , bargain collectively with International Union , United Auto-
mobile , Aerospace and Agricultural Implement Workers of America , UAW-AFL-
CIO, Local No. 192, as the exclusive bargaining representative of the employees in
the above -described appropriate unit, and embody any understanding reached in a
signed contract.
(b) Upon application , offer immediate and full reinstatement to their former or
substantially equivalent positions , without prejudice to their seniority and other
rights and privileges, to all those employees who participated in the strike beginning
on November 26, 1962, and have not already been reinstated , dismissing, if neces-
sary , persons hired by the Respondent on or after November 26, 1962.
(c) Make whole , in the manner set forth in the section above entitled "The
Remedy," the employees specified in the preceding paragraph for any loss of pay
suffered or which they may suffer by reason of the Respondent ' s refusal , if any,
MOORE DROP FORGING COMPANY 175
to reinstate them in the manner provided, and also make whole employee Puckett,
in the manner described in said section entitled "The Remedy."
(d) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all records necessary to analyze and compute the amount
of backpay, if any, which may be due under the section entitled "The Remedy."
(e) Post at its Hillsboro, Ohio, plant copies of the attached notice marked
"Appendix." 6 Copies of said notice, to be furnished by the Regional Director for
the Ninth Region, shall, after being duly signed by a representative of the Respond-
ent, be posted by it 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 to insure that such notices are not altered, defaced, or covered by any other
material.
(f) Notify said Regional Director, in writing, within 20 days from the date of
the receipt of this Intermediate Report and Recommended Order, what steps the
Respondent has taken to comply herewith.?
It is further recommended that the allegations as to the discharge of employee
Greene be dismissed.
6 If this Recommended Order is adapted by the Board, the words "A Decision and Order"
shall be substituted for the words "The Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by a decree of a United
States Court of Appeals, the wards "A Decree of the United States Court of Appeals,
Enforcing an Order" shall be substituted for the words "A Decision and Order."
I In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our employees that:
WE WILL bargain collectively, upon request, in good faith with International
Union , United Automobile , Aerospace and Agricultural Implement Workers of
America, UAW-AFL-CIO, Local No. 192, as the exclusive representative of all
the employees in the bargaining unit described below, with respect to rates of
pay, wages , hours of employment, or other conditions of employment and, if
an understanding is reached , embody such understanding in a signed contract.
The unit is:
All production and maintenance employees at our Hillsboro , Ohio, plant,
including plant clerical employees , but excluding office clerical employees,
and professional employees , guards, and supervisors as defined in the Act.
WE WILL, upon application , offer immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to their seniority
or other rights and privileges , to all our employees who participated in the strike
which began November 26, 1962, and who have not already been reinstated, dis-
missing, if necessary , all persons hired on or after November 26, 1962.
WE WILL make each such employee whole for any loss of pay suffered by him
as a result of our failure, if any, to reinstate him within 5 days after such un-
conditional application . We will make whole employee Puckett for any loss
of pay he would have earned as part -time employment by Foreman Willman
absent our discrimination against him.
WE WILL NOT threaten employees with discharge because they engage in
protected concerted activities , and we will not inform employees that we will
not sign a contract with the above -named labor organization.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist the above-named or any other labor organization, to
bargain collectively through representatives of their own choosing , and to en-
gage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection , or to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement requiring
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership in a labor organization as a condition of employment, as au-
thorized in Section 8(a) (3) of the Act, as amended.
MOORS DROP FORGING COMPANY,
Employer.
Dated------------------ By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Transit
Building, Fourth and Vine Streets , Cincinnati , Ohio, Telephone No. Dunbar 1-1420,
if they have any questions concerning this notice or compliance with its provisons.
Tidelands Marine Services , Inc. and Inland Boatmen 's Union of
the Seafarers International Union of North America , Atlantic,
Gulf, Lakes and Inland Waters District , AFL-CIO. Case No.
23-CA-1501. August 03, 1963
DECISION AND ORDER
On March 19, 1963, Trial Examiner Thomas A. Ricci issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Intermediate Report. The
Trial Examiner also found that Respondent had not engaged in cer-
tain other unfair labor practices and recommended that the complaint
be dismissed with respect to such allegations. Thereafter, Respondent
and General Counsel filed exceptions to the Intermediate Report, and
the latter also filed a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report, the exceptions,
and brief, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the modifications stated below.
The Trial Examiner found that the Respondent did not discrim-
inate against employees Roy Lee Klaus and Theodore Elkins in viola-
tion of Section 8 (a).(3) of the Act when it selected them from u num-
ber of union adherents for discharge on September 10, 1962. The
General Counsel contends that these two employees along with em-
ployee Jim McLain were the ringleaders of the Union and were for
that reason discharged as part of the Respondent's concerted and un-
144 NLRB No. 1.