Pittsburgh Metallurgical Co., Inc.

National Labor Relations Board - Board Decisions

Feb 29, 1940

20 N.L.R.B. 1077 (N.L.R.B. 1940)

In the Matter of PITTSBURGH METALLURGICAL COMPANY, INC. and
LOCAL 12,077 GAS AND_BY-PRODUCTS COKE AND CHEMICAL WORKERS
UNION, DISTRICT 50, UNITED MINE WORKERS OF AMERICA
Case No. C-993.-Decided February 09, 1940
Metal Alloy Manufacturing Industry-Interference, Restraint, and Coercion-
Unit Appropriate for Collective Bargaining: employees in the production, shipping,
maintenance, and yard departments, exclusive of clerical workers, foremen,
supervisory employees, engineers, technical workers, and the janitress; no con-
troversy as to-Representatives: proof of choice : consent election,. oral and
.documentary proof of membership; no dispute as to-Collective Bargaining:
refusal to enter into any contract with Union irrespective of what terms might
be proposed by or understanding had with the Union held to constitute refusal
to bargain ; refusal to enter into contract not justified by uncertain or com-
petitive business conditions ; posting of signed statements of policy held to be
insufficient when Union requests contract ; ordered, to bargain and to embody
in written, signed contract any understanding reached.
Mr. Edward D. Flaherty, for the Board.
Dudley, Stowe and Sawyer, by Mr. Ansley W. Sawyer and Mr.
Mason 0. Damon, of Buffalo, N. Y., for the respondent.
Mr. Harold M. Weston, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon amended charges duly filed by Local 12077, Gas and By-Prod-
uct Coke and Chemical Workers Union, District 50, United Mine
Workers of America, herein called the Union,' the National Labor
Relations Board, herein called the Board, by the Regional Director
for the Third Region (Buffalo, New York), issued its complaint,
dated August 30, 1938, against Pittsburgh Metallurgical Company,
Inc., Niagara Falls, New York, herein called the respondent, alleging
that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section
8 (1) and (5) and Section 2 (6) and (7) of the National Labor
1 The parent organization is herein called District 50.
20 N. L. R. B., No. 103.
1077
283031-41-vol. 20-69
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Act, 49 Stat. 449, herein called the Act. Copies. of the
complaint, accompanied by a notice of hearing, were duly served
upon the respondent and the Union. Thereafter the Regional Direc-
tor duly issued and served a notice of postponement of the hearing.
With respect to the unfair labor practices, the complaint alleged,
in substance, that on or about April 6, 1938, and at all times there-
after, the respondent refused to bargain with the Union as the
exclusive representative of its employees in a unit appropriate for
the purpose of collective bargaining, although the Union had been
designated representative of a majority of such employees; and that
the respondent thereby interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
Thereafter the respondent filed its answer admitting certain allega-
tions of the complaint with respect to its business, and also. admitting
the appropriateness of the unit alleged in the 'complaint and the
designation of the Union as representative of the employees in such
unit, but denying that it had engaged in any unfair labor practices.
Pursuant to the notices of hearing and postponement, a hearing
was held at Buffalo, New York, on September 13, 1938, before Mapes
Davidson, the Trial Examiner duly designated by the Board. The
Board and the respondent were represented by counsel and partici-
pated in the hearing; the Union did not appear. Full opportunity
to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues was afforded all parties. At the
beginning of the hearing, counsel for the respondent moved to dis-
miss the allegations of the complaint that the respondent by refusing
to bargain with the Union had engaged in unfair labor practices
within the meaning of Section 8 (1) of the Act. The motion was
denied. At the close of the Board's case, the respondent moved to
dismiss the complaint on the ground that the evidence failed to sub-
stantiate the allegations of the complaint. This motion was also
denied. At the close of the hearing, the respondent renewed its
motion to dismiss the complaint. The Trial Examiner reserved
ruling upon this motion, but denied it in his Intermediate Report. At
the close of the hearing, counsel for the Board moved that the com-
plaint be amended to conform to the proof adduced at the hearing.
The motion was granted without objection. During the course of
the hearing, the Trial Examiner made several rulings on other motions
and on objections to the admission of evidence. We have reviewed
the rulings of the Trial Examiner and find that no prejudicial errors
were committed. The rulings are hereby affirmed.
Thereafter, the Trial Examiner filed his Intermediate Report,
dated October 20; 1938, copies of which were duly served upon the
PITTSBURGH METALLURGICAL COMPANY, INC. 1079
.respondent and the Union, in which he found that the respondent
had engaged in unfair labor practices within the meaning of Section
8 (1) and (5) and Section 2 (6) and (7) of the Act, and, accordingly,
recommended that the respondent cease and desist therefrom and that
it take certain affirmative action designed to effectuate the policies
of the Act.
On November 1, 1938, the respondent filed its exceptions to the
Intermediate Report, and requested oral argument and permission
to file a brief upon the issues in the proceedings. Pursuant to per-
mission by. the Board, the respondent filed two briefs, one on Novem-
ber 18, 1938, and another on September 18, 1939. Pursuant to notice,
a hearing was held before the Board on September 19, 1939, in Wash-
ington, D. C., for the purpose of oral argument. The respondent
was represented by counsel and participated in the argument. The
Union did not appear.
The Board has considered the exceptions to the Intermediate
Report and the briefs filed by the respondent. We find that the
exceptions are without merit in so far as they are inconsistent with
the findings, conclusions, and order set forth below.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, a Delaware corporation, is engaged in the manu-
facture of silico-manganese, ferro-chrome, and ferro-silicon, at its
plant at Niagara Falls, New York.
During the year ending August 1, 1938, raw materials valued at
approximately $540,000 were used at the respondent's plant. At
least 90 per cent of these raw materials, consisting of ore, scrap iron,
silica rock, and coke breeze, were shipped to the respondent's plant
from points outside the State of New York. During the same period,
the respondent shipped finished products amounting to approximately
$600,000, over 90 per cent of which were shipped from its plant to
customers located outside the State of New York.
The respondent advertises in magazines having a national circula-
tion, and most of its sales are made through the office of one of its,
officers in Pittsburgh, Pennsylvania.2
II. THE ORGANIZATION INVOLVED
Local 12077, Gas and By-Product Coke and Chemical Workers
Union, District 50, United Mine Workers of America, affiliated with
the Congress of Industrial Organizations, is a labor organization
2 Other sales are made through commission agents in Cleveland , Ohio, and New York
City.
1080 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
admitting to its membership employees in the respondent's produc-
tion, shipping, maintenance, and yard departments, exclusive of
clerical workers, supervisory employees, foremen, technical workers,
and engineers.
III. THE UNFAIR LABOR PRACTICES
A. The appropriate unit
On October 28, 1937, a consent election was held under the super-
vision of the Board among the respondent's employees, in which the
Union received 45 out of a total of 69 votes cast. Thereafter, fol-
lowing, conferences between the Union and the respondent on Novem-
ber 4, 23, and 26, 1937, the respondent on December 3, 1937, issued a
statement that it recognized the Union as the exclusive representative
of its employees in the production, shipping, maintenance, and yard
departments, exclusive of clerical workers, foremen, supervisory em-
ployees, engineers, technical workers, and the janitress, for the pur-
poses of collective bargaining.$ The complaint in the present pro-
ceedings alleges, and the respondent's answer admits, that these
employees constitute a unit appropriate for the purposes of collective
bargaining.4
We find that the employees of the respondent in the production,
shipping, maintenance, and yard departments, exclusive of clerical
workers, foremen, supervisory employees, engineers, technical work-
ers, and the janitress, constitute a unit appropriate for the purposes
of collective bargaining, and that said unit insures to employees of
the respondent the full benefit of their right to self-organization and
to collective bargaining and otherwise effectuates the policies of
the Act.
B. Representation by the Union of a m ajority in the appropriate unit.
As stated above, the Union received 45 out of a total of 69 votes
cast in the consent election held on October 28, 1937. At the hearing
46 membership cards in the Union were produced by Peter Vaccarella,
recording secretary of the Union, who testified that they were the
cards of persons then in the respondent's employ and in good standing
in the Union. After examining the cards and comparing the signatures
with its records, the respondent stipulated that the signatures on 40
s See footnote 4, infra.
4 At the oral orgument before the Board , counsel for the respondent again stated that
the unit was not in dispute. The statement of policy issued by the respondent on Decem-
ber 3, 1937 ( see infra ), states that the respondent recognizes the Union "as the sole col-
lective bargaining agent of its employees in. the production , shipping , maintenance, and
yard departments , exclusive of office workers , foremen, engineers , and technical workers."
It is apparent from the record that this is the same unit as that alleged in the complaint
to be, and in the answer admitted to be, an appropriate unit. - -
PITTSBURGH METALLURGICAL COMPANY, :INC. 1081
of the cards "appeared to be the signatures of the persons whose names
appeared thereon." Of the 40 cards,' 39 are signed by employees whose
names appeared upon a pay roll of the respondent for the week end-
ing April 5, 1938, which shows a total of 59 employees in the appro-
priate unit; and 38 are signed by employees whose names appear upon
a pay roll of the respondent for the week ending August 31,.1938,
which shows a total of 69 employees in the appropriate unit.
. The Trial Examiner found that the Union, on October 28, 1938,.
and at all times thereafter, was the representative for collective bar-
gaining designated by a majority of the respondent's employees in
the appropriate unit. In its exceptions to the Intermediate Report
the respondent did not question the correctness of this finding; and,
at the oral argument before the Board, the respondent stated that the
majority status of the Union was not in dispute.
We find that on October 28, 1937, and at all times thereafter, the
Union was the duly designated representative of a majority of the
employees in the appropriate unit, and that, pursuant to Section 9 (a)
of the Act, the Union was the exclusive representative of all the em-
ployees in such unit for the purposes of collective bargaining in respect
to rates of pay, wages, hours of employment, and other conditions of
employment.
C. The refusal to bargain collectively
On November 4, 1937, Ransford, field representative of District 50,
and the Union's shop committee met with the respondent 6 and re-
quested a statement of the latter's policy on health and sanitation,
seniority, rotation of work, and wages and hours. The respondent
stated its position on these matters, and, at the Union's request, an-
other meeting was held on November 23, 1937, at which the respondent
set forth its position more fully. Thereafter, the Union filed charges
that the respondent had refused to bargain collectively with the Union,
and a conference was arranged and held on December 3, 1937, at which
there were present the shop committee, Ransford, A. R. Brunker,
the respondent's president, attorneys for the respondent, the Regional
Director, and one of the Board's field examiners. At this conference
and at a continuation thereof held the same day at the 'offices of the
respondent's attorneys,' the Union and the respondent again discussed
matters as to which the Union wished a statement of policy. The con-
ferences resulted in a statement which the Union 'accepted and which,
at its request, was reduced to writing and signed by Brunker. The
statement headed
e
5 The cards are dated August , September, and October ,, 1937, and. January 1938.
$ The record does not disclose the names of the representatives of the respondent who
attended this meeting or the meeting of November 23, 1937, referred to below.
7 It does not appear that this further conference was attended by the Regional Director
or the field examiner.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
PITTSBURGH METALLURGICAL CO., INC.
Statement of policy covering relations of the company with its
employees.
was then posted on the-plant bulletin board. The statement declared
that the respondent recognized the Union as the sole collective bar-
gaining agent of employees in the unit which we have found appro-
priate; would meet with the shop committee when reasonably requested
to do so; would meet with any "aggrieved party," or any persons
selected by him as representative, concerning any dispute or grievance;
would permit the Union to post on the bulletin board notices approved
by the management and would not discriminate "because of Union
membership." Concerning wages, hours, and working conditions, the
statement announced :
The Company will continue to operate a normal schedule of
eight (8) hours per day and forty (40) hours per week, and will
continue so far as possible to pay the going rate in the Niagara
Falls District for labor of the same class under the same condi-
tions.
When necessary to reduce the working force because of lack
of work, the Company will lay off and rehire workers after con-
sideration of ability, seniority, and human relations, i. e., whether
or not he has dependents, etc. The Company retains the sole
authority to select employees, direct and adjust the working force,
remove employees for just and proper cause and to maintain
discipline.
In addition to the foregoing, the statement declared that :
The Company will not permit Union activities to be conducted
on Company time or Company property.8
In sum, the statement of policy, while stating that the Union was
recognized as exclusive representative of the respondent's employees
for the purposes of collective bargaining, purported only to declare
what the respondent proposed to do-with this exception, that it fur-
ther declared that the respondent "would not permit Union activities
to be conducted on Company time or Company property." While the
statement had been arrived at as the result of negotiations between
the Union and the respondent, and had been accepted by the Union
in satisfaction of the demands thus made by the Union, the document
was not by its terms a collective agreement (or a memorandum of
The statement also announced that "The Company will continue its policy of making
and keeping its plant in a healthy and sanitary condition to the best of its ability."
PITTSBURGH METALLURGICAL COMPANY, INC. 1083
such an agreement) between the respondent and the Union, and the
record shows that it was never so regarded by either of them.'
On April 4, 1938, Albert Pezzati, who had replaced Ransford as
field representative of District 50, wrote to the respondent, stating
that the Union "is not satisfied to continue indefinitely with the state-
ment of policy issued by the management," and requesting "that the
Company fulfill the obligation of the Act by entering into a true col-
lective bargaining agreement with the Union for the purpose of
reaching ,a, writtten and signed agreement." 10 Pezzati's letter asked
the respondent to'set a.-time of meeting "when the union may present
its demands in the form of a draft proposal." On April 13, 1938,
Pezzati and the shop committee met with, and presented a proposed
contract to Owens, the respondent's vice president, and Siegrist, super-
intendent of operations. Owens and Siegrist stated that they would
consider the proposal and would communicate with the Union.
On April 27, 1938, Pezzati and the shop committee again met with
Owens and Siegrist. The evidence is conflicting as to whether all of
the clauses of the proposed contract were discussed, and as to the
reasons advanced by Owens and Siegrist for rejecting those which
were considered at this meeting.
Y As will appear below, the respondent in June 1938 made clear beyond any doubt that
it did not regard the statement as creating any binding obligation. Indeed, the point
would hardly require comment except for the contention made by the respondent that the
Board is limited to consideration of a stipulation entered into at the beginning of the
hearing by the Board and the respondent in order to shorten the record as to events prior
to December 23, 1937. The stipulation, as proposed, stated that after the consent elec-
tion "conferences were held resulting in the arrival of an agreement which was evidenced
by a statement in writing signed by * * * Brunker." Counsel for the Board then
stated that he agreed that this was "a correct statement of the facts" and that he would
stipulate that it was "substantially the history leading up to" the arrival of Albert Pezzati
who replaced Ransford as field representative of District 50. The record clearly shows
that the stipulation. was not intended to foreclose the introduction or consideration of
other evidence; and, indeed, the respondent itself subsequently introduced a memorandum
as to what had transpired at the conferences prior to December 23, 1937. Moreover, it is
apparent, and we find, that as used in. the stipulation, the word "agreement" was under-
stood to refer to-nothing more than the fact that the Union accepted the statement of
policy as an answer to the demands then made by it. This is not to say that the respond-
ent engaged in any unfair labor practice in issuing the statement of policy rather than
entering into a collective agreement. For manifestly there is no duty to enter into a con-
tract where none is sought. The Union requested and obtained a statement of policy and
no claim is made that at this time the respondent had refused to bargain collectively.
10 This was not the first request made by the Union for "a written and signed agree-
ment." A proposed agreement had been submitted to the respondent on September 11,
1937, and was the subject of conferences between the Union and the respondent on Sep-
tember 18 and October 2, 1937. However, there is no showing that at this time the Union
had been designated as representative for collective bargaining, and we are unable to con-
,elude from the record whether during the conferences after the consent election on October
28, 1937, culminating in the issuance of the statement of policy, the Union sought a con-
tract. At meetings with the respondent on January 20 and February 5, 1938, the Union-
requested that seniority be the sole factor in lay-offs. On March 1, 1938, according to the
respondent, a meeting was held with the shop committee, lasting 2% hours, at which
"Mr. Brunker went over the statement of December 3, 1937, in detail with the men and
explained to them the reasons for the Company's position on all questions brought up."
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Siegrist and Owens testified that the proposed agreement was dis-
cussed point by point. Siegrist further testified that "we . . . told.
them the reason why we could not come to any agreement regarding
that contract," but did not specify what reason or reasons were ad-
vanced." Owens, on the other hand, limited himself to the statement.
that "we could not agree on several points," and was specific in his:
testimony as to points of disagreement.
According to Owens, it was pointed out to the Union that the pro-
vision in the proposed contract for payment at the rate of time and
a half for overtime was not satisfactory since it was occasionally nec-
essary to call the yard crew to work on Saturday so as to make ship-
ments of orders received late on Friday,12 and that "in general due
to business conditions we could not agree to pay time and a half all
the way through." Owens also testified that attention was called to
the ambiguity of the provision for double time for "work performed".
on Saturdays and certain holidays, inasmuch as the respondent's
operations were necessarily continuous and that the Union was, there-
fore, asked whether this provision was intended to cover "regular
shift workers." 13
. The contract proposed that seniority alone should govern in lay-
off and rehiring, and Owens testified that this was explained to the
Union to be unacceptable to the respondent, which believed that other
factors, such as ability and the "responsibilities of the individual"
should also be considered.
As we have noted above, the respondent's statement of policy had
declared that it would "continue so far as possible to pay the going
rate in the Niagara Falls district for labor of the same class under
the same conditions." The Union, according to Owens, was never-
theless "afraid of a pay cut" and "wanted to know" whether one was
contemplated. The proposed contract provided with respect to' this
matter that "The present rates of pay shall not be reduced during
the duration of this agreement," which was to be in effect "from year
to year unless terminated" by either party "giving thirty (30) days
notice of its desire," such termination, however, not to occur before
a date to be fixed in the contract by mutual agreement. Owens testi-
fied that "we discussed that [the reduction of wages] thoroughly, and
we referred to our statement of policy which said there would be no
reduction as long as it was possible to maintain wages and conditions
warranted maintaining of wages."
n Siegrist did answer affirmatively to a leading question of the respondent ' s counsel as
to whether he at this time raised "many of " the objections made by Brunker at a subse-
quent meeting ; on June 23, 1938.
12 The contract would have provided that "The normal work day shall consist of eight,
(8) hours and the normal work week shall consist of five ( 5) days."
1s See footnote 22, infra. I
PITTSBURGH METALLURGICAL COMPANY, INC . 1085
Pezzati testified that some of the provisions of the contract were
rejected simply on the ground that they were "not the company
policy." Neither Siegrist nor Owens denied that this was the reason
advanced for rejecting some of the provisions of the proposed agree-
ment, which, in addition to the clauses referred to above, provided for
spreading of work, payment of employees who were required to report
for work but given no work, a new grievance procedure," vacations,
disability compensation, and leaves of absence to employees to transact
union business. Furthermore, although the respondent contends that
Owens was fully authorized to enter into any agreement, no counter-
proposal was made to the Union at the meeting, and it ended with
the statement by Owens and Siegrist that the matter would be
referred to Brunker, who was in Chicago, "for final opinion."
On June 1, 1938, Brunker wrote Siegrist a letter "finally rejecting
the proposed contract." 15 Siegrist, who received the letter on June 3,
at once wrote to Vaccarella, recording secretary of the Union, stating
that he would meet with the committee on June 6. The meeting was
held, and Siegrist read Brunker's letter to the committee." In this
letter Brunker wrote that following his talk with Siegrist on the
,preceding Friday 17 he had "again gone over a number of times the
situation of the men in the shop, and have studied over the statement
of policy and the suggested form of agreement." Brunker then went
on to say :
As you know these are terrible times, and this present depres-
sion has become as bad or worse than the one of several years ago.
Anyone responsible for a business these days does not know how
to make plans as far ahead as the next day, as conditions are
changing every minute of the time.
I do not believe that the men themselves, or Mrs. Pizzatti
[sic], have much of any understanding as to the peculiar nature
of this business. The proposed written agreement might be all
right for a machine shop, or any other ordinary manufacturing
plant, but it cannot apply to a business such as ours, where we are
compelled to take and pay for a certain amount of electric current
is The contract provided that "in the event of any disagreement or grievance " the re-
spondent 's representatives would meet with the shop committee in order to reach a satis-
factory settlement . The contract further provided that a claim of unjust discharge shall
constitute a grievance ; that such cases should be disposed of within 5 days unless the
parties were unable to reach an agreement , in which event the matter was to be submitted
to arbitration ; and that, if the employee was reinstated , he should receive full pay for the
time lost by him.
is The quoted words are from the memorandum prepared and submitted by the respond-
ent to the Regional Director on June 23 , 1938. See footnote 18, infra.
16 Pezzati was not present.
17 May 27.
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
every month, whether we use it or not, and where we have to run
twenty-four hours a day, every day in the year * * * we are
continuing to run, and to use up rapidly the money, that we have
with which to do business, changing our supply of ore, scrap and
other things, to alloys, and piling them up, as long as we. can
find space to put them, and as long as our money holds out.
Meanwhile, business conditions continue to get worse and worse,
week by week, and there is really no hope of any change for the
better for at least the remainder of this year. The time may
easily come, in another month or so, when we will have to shut
down and wait until that improvement does take place * * *:
You know perfectly well that we cannot make contracts on ore,
scrap or anything else, as we cannot see the future even a few
hours ahead. It seems to me that the men in our plant should
thank God that we have been able so far to keep running, and
give them the employment they have had, without even a reduc-
tion in wages, for all of these months.
Please make clear to them that we are the smallest company
in this business, and that we manufacture and sell about one and
a half per cent of the alloys in this country. We find it very
hard to get business against the competition of our big. com-
petitors, who buy many millions of dollars every year of other
things from the people to whom they sell alloys, and are able in
that way to demand alloy business in return, which we cannot get.
It is also a fact that we cannot pay any higher wages than they
pay, and we are doing very well to pay the same wages for the
same conditions of work that the other companies pay * * *.
I know you will agree with me that we have every desire to be
fair, helpful and generous to the men working for us. We are
ready at all times to discuss and bargain with them, to see what
can be worked out.
I do not feel that it has been possible to agree on any matters
beyond'the statement of policy that would make a basis for a
signed agreement, and in view of all the terrible uncertainties
facing us, the best we can do is to continue to work with them
as we have, until the situation either changes for the better or
gets worse, or continues along for sufficient time as bad as it is
today, to make it necessary for us to consider either a shutdown
or ask the men to help us by accepting a reduction in scale.
I still do not know of any laws or rulings by any Board that
compel me to agree to things that I do not honestly feel are for
the best interest of everybody concerned in this business, both the
men working for us and the large group of comparatively poor
people who now own it, as stockholders.
PITTSBURGH METALLURGICAL COMPANY, INC. 1087
I also, do- not know of 'any laws that require any man to con-
tinue to work for us, if he is unhappy, or feels that he can better
himself by working somewhere else.
On June 22 the Union telephoned for another conference "for a
further discussion of the contract," and an appointment was made
for the next day.18 The meeting on June 23 was attended by Brunker
and Siegrist, Pezzati, and the shop committee. During the con-
ference, Brunker reiterated the position that he had set forth in hill
letter of June 1. He stated that the respondent's competitive posi-
tion and financial'condition, and the general business situation, made
it impossible to agree to maintain wages for any fixed period, and
declared that, for the same reasons, the respondent could not accept
the proposals as to vacations, disability, compensation, and overtime
since they would increase operating expenses. His fundamental rea-
son, however, for regarding the Union's proposals as "not possible"
appears in the following testimony elicited on cross-examination :
Q. "In the event the available work is insufficient to give all
employees a full week's work, the company agrees to spread the
work so far as possible and practical, and the rates applicable
to such work shall prevail." What was your idea on that?
A. The universal attitude of decent employers to keep as many
men working in getting some income in depression periods as
against firing them cold and letting them go on relief.
Q. That paragraph you could go for?
A. We have already done it in a number of cases when asked
to do it 19
Q. Were you willing at the time when you were discussing this
proposed agreed [sic] to incorporated [sic] this paragraph in
the agreement? It is quoted from Board's Exhibit 7 [the pro-
posed contract] in evidence.
A. Let me see our statement of policy, please, will you? The
best of my opinion now is that we felt that under present condi-
tions we would do the best that we could, but we didn't feel, that
with uncertain conditions as they are, that we could bind our-
selves for any period of time on that policy.
18 The Union had filed a charge with the Regional Director on June 13, 1937, alleging
that the respondent had refused to bargain , and on June 22, the respondent conferred with
the Regional Director , to whom it submitted a memorandum setting forth its position with
respect to the negotiations up to and including June 6. The charge filed on June 13 also
alleged that the respondent had engaged in unfair labor practices within the meaning of
Section 8 ( 3) of the Act , and the respondent 's memorandum also set forth its position
with respect to those allegations .,. The amended charge filed by;the , Union * on July 26,
1938, was limited to the allegations relating to refusals to bargain.
19 Since December 3 the respondent had met with the Union on a number of occasions to
consider these. and other grievances.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor was this the only respect in which Brunker said, "We didn't
feel * * * we could bind ourselves for any period of time," even
though the provisions of the proposed -contract accorded with the
respondent's practice. Brunker admitted that such was the case with
respect to the clause in the contract providing for a minimum of 2
hours' pay for employees required to report for work. Brunker also
stated, on cross-examination, that he had said that he could not enter
into an agreement "for any period of time" even as to the 40-hour
week and 8-hour day provision, although, it will be noted, it was
identical with a clause of the respondent's statement of policy.20
While Brunker stated at the meeting that in his opinion the Union
and the respondent had not agreed on enough matters to warrant the
drawing up of a contract, he admitted on cross-examination, that that
had not been his sole reason for not wanting to enter into a signed
contract. His reasons, he testified, were "that and the fact that con-
ditions were so uncertain and changing every minute of the day and
night so that you could not make an agreement on anything for any
period of time." Brunker's position at the conference is even more
completely revealed by his admission "that the general business situa-
tion was so chaotic that we could not make contracts on purchases or
anything else, and we were utterly unable for the same reason. to see
our way ahead far enough even for 24 hours sometimes to make any
binding agreements on anything."
Entirely consistent with Brunker's attitude, as expressed by him at
the hearing, is Pezzati's testimony that at the June 23 conference
Brunker declared "that the statement of policy was still satisfactory
to the company and that he saw no reason why it should not be satis-
factory also to the union * * * .[and] further that if there were
certain changes which the union would like to have the company
would be willing to consider certain changes to the so-called state-
ment of policy." Neither Brunker nor Siegrist denied that the for-
mer had made these statements, and, in view of Brunker's testimony
and his letter of June 1, we are satisfied and find that he made the
statements. The same considerations lead us to accept- as substan-
tially correct Pezzati's further testimony that Brunker also stated
that he would agree "to put an expiration date on the statement of
policy, and also entertain for consideration whatever proposals the
union might have to make." While the evidence is conflicting as to
who proposed that an expiration date be added to the statement of
policy, it is clear from the foregoing that the position expressed by
the respondent on June 23 was that any changes to be made in its
relation with the Union would have to bi^, set forth in an amended
m With respect to the Union 's proposals for strict seniority , Brunker raised the objec.
tions which Owens and Siegrist had expressed in the meeting on April 27.
PIT'TSBURGH METALLURGICAL COMPANY, INC. 1089
statement of policy.. Indeed, neither Brunker nor Siegrist testified
that the respondent indicated any willingness whatsoever at this
meeting to enter into any contract with the Union.21 On the other
hand, it appears from Pezzati's uncontradicted testimony that when
Brunker "proposed that the union send in any possible additions to
statement of policy," Pezzati declared that the Union
had already made its possible additions, and that they were made
in the form of a written agreement, and that the union desired no
more of the statement of policy, but wanted a written and signed
agreement, signed-by both parties.
As we have stated above, there is a dispute as to which of the parties
proposed the addition of a termination date to the statement of policy.
Brunker, who testified that Pezzati had requested this supplement to
the statement of policy, claimed that the meeting "ended up with an
agreement that a new proposal would be submitted to us [by the
Union] the next day modelled along the line of the statement of
policy." According to Pezzati, he had declined to advance any further
proposals on the ground that "the proposed agreement was already
reduced to a bare minimum in its demands." He testified further
that he insisted that the respondent should reconsider the proposed
contract and present the Union with either a counterproposal or a
final answer as to which of the proposed clauses were acceptable; that
Brunker had agreed to do this and had asked him to send in a new
copy of the contract; and that he had promptly mailed it to Brunker.22
Under date of June 23, Pezzati wrote Brunker stating that he en-
closed the agreement "in accordance with our understanding this after-
noon" and expressing the "hope [that] we may have your answer and
further discussions within a reasonably short length of time." Pez-
zati's letter was not received by the respondent until June 25. Mean-
while, on June 24, Brunker wrote a, letter to Vaccarella, recording sec-
retary of the Union, reading as follows :
In line with our discussion today and Mr. Pezzatti's request
for a counterproposal, enclosed please find a further provision
relating to the statement of December 3, 1937. It will be satis-
factory to us to have this posted on the bulletin board.
21 On cross-examination , Brunker testified :
We said that any time he [Pezzati ] felt there should be additions or changes,
that it was possible for us to agree on in connection with that statement of policy,
one of which being the duration feature of it, we told him we would try to work with
him along those lines to the best of our ability.
22 The new copy contained one modification . The Union had explained in the confer-
ences that the provision for payment on the basis of double time for work performed on
Sunday and holidays was not intended to apply to employees whose regular shifts fell on
those days. The new copy of the contract was revised so as to make this clear.
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The enclosure read :
The Company will continue to observe all of the provisions con-
tained in the statement of December 3, 1937 until December 31,
1938 unless in the opinion of the Company a shut-down or reduc-
tion in wages becomes necessary prior to that date. In that event
a modification of some of those provisions will be made.23.
At the time that Pezzati's letter of June 23 enclosing the contract
was received by the respondent, Brunker had returned to Chicago, but
before leaving Niagara Falls, he had conferred with Siegrist and they
had reached the conclusion that the letter of June 24, proposing a
duration clause to the statement of policy,-"was as far as. we felt con-
ditions could permit us to go at that time."
On June 30 Vacarrella wrote to Brunker inquiring whether the
letter of June 24 "represents your final answer to the Union's pro-
posals." Vacarrella went on to state that "the Union has been under
the impression that the company would make counterproposals with
a view towards reaching a sufficient basis for a written agreement."
The letter concluded with a request for "clarification of this point."
On the following day Siegrist called Vacarrella into the office. Vacar-
rella testified that he asked Siegrist whether the letter of June 24 "was
a conclusive report from Mr. Brunker on the proposed agreement,"
and that Siegrist had answered "Yes." Siegrist, who had not con-
sulted with Brunker concerning either Pezzati's letter of June 23,
forwarding the contract, or Vacarrella's letter of June 30, at first
testified that he told Vacarrella that the letter of June 24 "was all that
the company had to offer at that time." Later he testified that he had
stated that it "was our answer to that meeting [of June 23]." Siegrist-
further testified that it was his "understanding [as to the upshot of
the June 23 meeting] that they were to submit a new contract or agree-
ment built around our statement of policy." However, he admitted
that he had felt that the statement of policy was "as far as the company
could go," and he did not testify that he made any statement to Vacar-
rella concerning his "understanding."
When Siegrist stated the respondent's position to Vacarrella on
July 1, the latter said that he would take the matter up with the Union
and that "he had nothing more to say."
We are unable to credit the testimony of Brunker and Siegrist that
at the conclusion of the meeting on June 23, Pezzati agreed to submit
to the respondent an agreement "modelled along the line of the state-
21 It will be observed that the amendment , as in the case of the original statement of
policy, merely states what the respondent proposes to do. The absence of even a provision
that notice of intention to effect ,a change in working conditions shall be communicated to
the Union , as well as the letter and testimony of Brunker, clearly shows that thereby the
respondent did not intend to enter into any contractual relationship with the Union.
PITTSB'URG'H METAL'LURGTCAL 'COMPANY, INC. 1091
ment.of policy." We are unable to reconcile Brunker's testimony that
Pezzati promised to submit such a proposal "the next day," with
Brunker's dispatch of the letter of June 24, and his conclusion, reached
even before hearing from Pezzati, that the addition of the termination
clause to the statement of policy forwarded by the letter of June 24,
"was as far as we felt conditions would permit us to go at that time."
On the other hand Pezzati's account of the basis upon which the meet-
ing concluded, is more plausible and is consonant with all that had
preceded the conference, and what followed' it. We conclude that, as
stated by Pezzati, the Union at the close of the conference adhered to
its position that it demanded a contract and rejected as unsatisfactory
a statement of policy. Moreover, even if Brunker -and Siegrist had, at
the close of. meeting on June 23, 'in some manner been under the im-
pression that the Union had yielded to the respondent's adamant
refusal to consider anything other than a revised statement of policy,
Pezzati's letter of June 23 and Vacarrella's letter of June 30, certainly
were sufficient to dispel any such notion. By both letters the respond-
ent was unequivocally advised that the Union insisted upon the making
of a contract and that it expected to negotiate to the end that a contract
should be agreed upon. Siegrist's reply to Vacarrella on July 1 was
an unmistakable declaration that the respondent persisted in its refusal
to consider such a proposal.
In its brief the respondent makes.the contention that the negotiations
with the Union came to an impasse because Pezzati was unwilling to
yield upon any of the substantive provisions of the proposed contract.
It points to his testimony that :
When Mr. Brunker agreed to put an expiration date on the
statement of policy, and also entertain for consideration whatever
proposals the union might have to make I stated that the union
had already made its proposals; that they should have been-under
consideration for the period of two months and more, and that
therefore, I,did see that anything was to be gained by submit-
ting additional proposals. I pointed out that the proposed
agreement was already reduced to a bare minimum in its de-
mands * * *
A different picture emerges, however, when it is observed that Pezzati
continued,
and I went over the proposed agreement and the statement of
policy to point out that the differences actually were very small,
and therefore,. I proposed that once more the company take the
proposed agreenielit, study it again, and either present us with a
counter-proposal or let us know, finally and definitely just what
clauses they would- accept and what they would like to discuss for
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amendment or substitution. This proposal of mine, was agreed
to, and it was directly after the conclusion of the conference that
I wrote the letter which is Exhibit 7, to Mr. Brunker.
The respondent also points to the following question and answer dur-
ing the cross-examination of Pezzati,
Q. (By Mr. SAWYER.) There were many clauses at least which
the union did not yield on, were there not?
A. There were because there were no counter proposals or sub-
stitutions which could have been made for those clauses.
That Pezzati was not by this answer purporting to declare that the
Union would have insisted upon some of the clauses of the proposed
contract is clear in view of the question and answer which imme-
diately preceded. We quote:
Q. Isn't it the fact that when you eliminated from this proposed
agreement the clauses for which neither the company nor the union
would yield of that the remaining items were all covered by the
agreement called the statement of policy with the single excep-
tion of the duration clause?
A. I cannot answer that question yes or no because there, was
no single clause which the union refused 'to yield on.
Moreover, neither Brunker nor Siegrist made any claim that Pezzati,
or any other representative of the Union, at any conference indicated
that the clauses of the proposed contract were not subject to modifi-
cation upon negotiation.
The contention that the negotiations ended because of an impasse
over substantive provisions of the contract is not supported by the
record. Indeed, the respondent refused- even to consider making a
contract with respect to those of the union's proposals which ac-
corded with the respondent's practice. The record clearly shows
that the negotiations ended because of the respondent's utter un-
willingness to enter into any contract with the Union. Whether or
not, apart from the respondent's fixed decision to agree to nothing
besides a statement of policy, the parties would have been able to
reach a mutually satisfactory basis for and would have entered into
a contract cannot, of course, be determined; it was never attempted,
because of the respondent's conception of the extent of its legal
duty under the Act and its determination to go no further than it
regarded itself as legally obligated. In substance, the respondent's
position, upon which the negotiations foundered, was that under the
Act there was no duty to embody in mutually binding agreement
with the Union any accord reached concerning hours and condi-
tions of employment. The embodiment in such a mutually binding
agreement of the accord reached was, according to the respondent's
PITTSBURGH 'METALLURGICAL COMPANY, INC. 1093
conception.of the Act, .not- a matter of statutory duty but a subject
for bargaining no different from the negotiation of a mutually satis-
factory understanding as to wages, hours, grievance procedure, and
the like. Consequently, the respondent concluded, the duty to bar-
gain collectively- was. fully observed when for reasons of business
judgment it concluded that the execution of "any binding agree-
ment" was imprudent, and offered instead to amend its statement
of policy.
The respondent's contentions rest upon a misconception of the
duty to bargain with ..the representatives of its employees. Col
lective bargaining, as contemplated by the Act, is a procedure
looking toward the making of a collective agreement by the em-
ployer with the accredited representatives of its employees con-
cerning wages, hours, and other conditions of employment. The
duty to bargain collectively, which the Act imposes upon employers,
has as its objective the establishment of such a contractual relation-
ship to the end that employment relations may be stabilized and
obstruction to the free flow of commerce thus prevented 24 The
duty is not limited. to the recognition of the employees' representa-
tives qua representatives, or to a meeting and discussion of terms
with them. The duty encompasses an obligation to enter into dis-
cussion and negotiation with an open and fair mind and with a sin-
cere purpose to find a basis of agreement concerning the issues pre-
sented, and to make contractually binding the understanding upon
the terms that are reached.25 Business exigencies may render diffi-
24 Section 1 of the Act . See House Report of Committee on Labor; 74th Cong., 1st Sess.,.
Rep. No. 1147 , at p. 20; Senate Report of Committee on Education and Labor , 74th Cong.,
1st Sess., Rep . No. 573, pp. 12, 13.
25 Matter of St. Joseph Stockyards Company and Amalgamated Meat Cutters and Butcher'
Workmen of North America, Local Union No. 159, 2 N. L. R. B. 39. We have reaffirmed!
this interpretation of the Act in all subsequent cases involving this question . The review-,
lug courts have indicated their accord.
In Consolidated Edison Co . v. N. L. R. B., 305 U. S. 197, 236, the United States Supreme,
Court said :
The Act contemplates the making of contracts with labor organizations . That Is,
the manifest objective in providing for collective bargaining.
And Mr. Justice Reed, concurring in part and dissenting in part, said at page 245:
It is agreed that the "fundamental purpose of the Act is to protect interstate and
foreign commerce from interruptions and obstructions caused by industrial strife."
This is to be accomplished by contracts with labor organizations , reached through,
collective bargaining.
Similarly, in N. L . R. B. v. The Sands Manufacturing Co., 306 U. S. 332 , 342, the United
States Supreme Court observed that:
The legislative history of the Act goes far to indicate that the purpose of the stat-
ute was to compel employers to bargain collectively with their employees to the end
that employment contracts binding on both parties should be made.
In Globe Cotton Mills v. N. L. it. B., 103 F. ( 2d) 91, 94 ( C. C. A. 5, 1939 ) the Court
stated :
* • • there is a duty on both sides • • • to enter into discussion with an
open and fair mind, and a sincere purpose to find a basis of agreement touching wages
and hours and conditions of labor, and if found to embody it in a contract as specific
283031-41-vol. 20-70
1094 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD
cult the process- of arriving at an. understanding satisfactory to the
employer and the representatives of its employees, and may, if the
representatives of its employees are unyielding in their demands,
account for the inability of the parties, though acting in entire good
faith, to reach any accord, either as to certain terms and conditions
,of employment or as to the duration of such terms and conditions.
On the other hand, as we have held, changing and uncertain busi-
ness conditions'26 or the competitive nature of an employer's busi-
ness,27 do not afford any justification for failure to seek to- arrive at
an understanding, or to embody such an understanding, if reached,
in a contract binding upon both the employer and the representa-
tives of its employees.28
Manifestly, the respondent by offering to amend its statement of
policy did not fulfill the duty to bargain collectively invoked by the
Union. Collective bargaining does not connote merely discussions
designed to clarify employer policy. As we have stated above the
as possible , which shall stand out as a mutual guarantee of conduct , and as a guide
for the adjustment of grievances.
In N..L. R. B. v. Griswold Mfg. Co., 106 F. (2d) 713, 722 (C. C. A. 3, 1939) the Court
said :
It is obvious that an employer who enters into negotiations with a labor union
representing his employees , with his mind hermetically sealed against even the thought
of entering into an agreement with the Union, is guilty of refusing to bargain collec-
tively with the representatives of his employees in good faith, as required by the Act,
and is therefore guilty of an unfair labor practice.
20 Matter of Holston Mfg . Co. and American Federation of Hosiery Workers, 13 N. L.
R. B. 783, 791.
27Matter of George P. Pilling & Son Co. and Dental, Surgical and Allied Workers Local
Industrial Union No. 119, 16 N. L. R. B. 650; Matter of American Range Lines , Inc. and
Marine Engineers' Beneficial Assn., 13 N. L. R. B. 139, 146-147 ; Matter of Harry Schwartz
Yarn Co., Inc. and T. 1V. 0. C., 12 N. L. R. B. 1139, 1158; Matter of Harbor Boat Building
Company and Ship Carpenters Local Union No. 1335, 1 N. L. R. B. 349, 355.
28 Cf. Matter of Phelps Dodge Corporation and International Association of Machinists,
Local 223, 15 N. L. R. B. 732 , in which the employer, seeking to justify its refusal to
bargain, contended that because various crafts had been held , in a prior representation
proceeding , to constitute appropriate units for the purposes of collective bargaining, super-
visory employees might be compelled to spend a great deal of their time in bargaining
conferences rather than in the performance of their business duties: We said at page 7:
"* * * assuming for the purposes of argument the validity of the respondent' s appre-
hensions , it is manifest that the requirements of an employer 's business must yield to the
paramount requirements of a national law such as the Act. We would not be justified in
depriving employees of their rights , as guaranteed, in the Act, merely on the ground that .
the exercise of such rights might become onerous ,to the.. employer .". See also the follow-
ing cases in which the employer sought to excuse disregard of other sections of, the Act
on the ground that observance of the rights of employees would have resulted in action
by third persons which would have caused serious economic injury to the employer :
Matter of Star Publishing Company and Seattle Newspaper Guild, Local No. 82, 4 N. L.
R. B. 498, 505; order enforced N. L. R. B. v. Star Publishing Co., 97 F. (2d) 465 (C. C.
A. 9) ; Matter of Simmons Co. and Steel Workers Organizing Committee , 6 N. L. R. B. 208,
211-212; Arcade-Sunshine Company, Inc. and Laundry Workers, Cleaners and Dyers
Union, 12 N. L. R. B. 259, 264-265; Matter of Trawler Marls Stella, Inc. and American
Communications Association (C. 1. 0.), 12 N. L. R. B. 415, 422-423; Matter of Electric
Vacuum Cleaner Company, Inc . and United Electrical & Radio Workers of America, Local
720, 18 N. L. R. B. 591 ; Matter of West Oregon. Lumber Company and Lumber and Sawmill
Workers Local Union No. 3, International Woodworkers of America, 20.N. L. R. B. 1.
PITTSBU'RGH METALLURGICAL COMPANY, INC. 1095
objective of the duty to bargain collectively is the establishment of a
contractual relationship resting upon collective agreements. The
statement of policy proffered in place and stead of a proposed collec-
tive agreement was the antithesis of such an agreement. It was merely
an announcement by the respondent to its employees of wages, hours,
.working conditions, and grievance procedure which would prevail
until the respondent chose to change them at its pleasure.29 Moreover,
such a unilateral declaration plainly failed to subserve the function
of a collective agreement.30 The Union sought but was denied the
status of a contracting party accepting responsibility for and seeking
to secure peaceful adjustment of disputes which might arise as to the
understanding between the parties or changes desired in such under-
standing'.31 The' statement of policy, announcing terms and conditions
of employment and procedure for disposition of grievances, termi-
nable at the will of the respondent without notice to or negotiations
with the representatives of its employees, was in no wise calculated to
achieve the stability of relations between employer and employee
2° In so far as such an announcement partakes of the character of an agreement, such
agreement is vis-a-vis the individual employees . Thus viewed the respondent ' s position is
analogous to that of employers who pursued the policy of dealing with a committee of the
union representing the employees but of refusing to embody understandings arrived at in
.a collective agreement with the union, seeking instead to embody the terms and conditions
of employment in contracts between himself and the individual employees. We found
that the employer ' s willingness to enter into such contracts failed to satisfy his obligation
under the Act to bargain collectively . Matter of The Louisville Refining Co. and Int.
Ass'n . Oil Field, Gas Well and Refinery Workers of Amer., 4 N. L. R . B. 844, enf'd as modi-
fied as to other issues, N. L . if. B. v. The Louisville Relining Co ., 102 F . ( 2d) 678 (C. C. A.
=6th, 1939 ) ; Matter of Hopwood Retinning Co., Inc. and Metal Polishers, Buffers, Platers
-and Helpers Int. Union Local No. 8, 4 N. L. R. B. 922 , enf'd as modified as to other issues,
N. L. R. B. v. Hopwood Retinning Co., Inc ., 98 F. (2d ) 97 (C. C . A. 2d, 1938 ) ; Matter of
American Manufacturing Co. and Textile Workers Organ. Comm ., 5 N. L. R . B. 443, enf'd
.as modified as to other issues, N. L. R. B. v. American Manufacturing Co., 102 F . ( 2d) 61
(C. C. A. 2d, 1939 ) ; Matter of National Licorice Co. and Bakery and Confectionery Work-
ers Int. Union of Amer., Local Union 405 , 7 N. L. R. B. 537 , enf'd as modified as to other
issues, N. L. if. B . V. National Licorice Co., 104 F. ( 2d) 655 ( C. C. A. 2d, 1939 ) ; Matter
-of American Numbering Machine Co . and Int. Ass 'n of Machinists , District #15, 10 N. L.
R. B. -536; Matter of Independent Pneumatic Tool Co . and Steel Workers Organ, Comm.,
15 N. L . It. B. 106 . In the Hopwood case , supra, the court stated at page 100, that
the contract which the employer sought to substitute for that Intended by the Act was.
mot "a collective agreement with representatives^of the employees ; as provided by the Act."
[ Italics- supplied.]
30 Cf. Matter of United States Stamping Co. and Enamel Workers Union No. 18630, 5 N. L.
.R. B. 172; Matter of H. J . Heinz Co. and Canning and Pickle Workers, Local Union No.
.325, 10 N. L. R. B. 963; Matter of Fort , Wayne Corrugated Paper Co. and Local No. 182,
Int. Brotherhood of Pulp, 6ulphite , and Paper Mill Workers , 14 N. L . R. B. 1,; Mat-
ter of Dallas Cartage Co . and Intl Brotherhood of Teamsters, Chauffeurs , Stablemen &
Helpers of Amer. , Local 745, 14 N . L. It. B. 411.
81 In N. L. It. B. v. Sands Manufacturing Company, 306 U. S. 332, 342 , the Supreme
-Court said :
The legislative history of th@ Act goes far to indicate that the purpose of the stat-
ute was to compel employers to bargain collectively with their employees to the end
that employment contracts binding on both parties - should be made * * * we
assume that the Act impases upon the employer the further obligation to meet and
bargain with his employees ' representatives respecting proposed changes of an existing
contract and also to discuss with them its true interpretation, if there - is any doubt
as to its meaning.
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sought to be furthered by the Act.32 On the contrary it continued in
existence the very situation which Congress, upon the basis of the his-
tory of labor relations, regarded as undesirable because it tended to
induce employees to resort to strikes and other methods of industrial
warfare rather than to turn to the procedure of collective bargaining 33.
We find that the respondent. by refusing to enter into any binding
agreement with the Union, irrespective of what terms might be pro-
posed by or understanding had with the Union, did, on June 3, 1938,
and at all times thereafter refuse to;bargain collectively with the Union
as the exclusive representative of its employees in the appropriate
unit in respect to rates of pay, wages, hours of employment, and other
conditions of employment. We also find that by such refusal, the
respondent interfered with, restrained, and coerced its employees in
the exercise of their rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respond-
ent described in Section I above, have a close, intimate, and substan-
tial 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
It is essential in order to effectuate the purposes and policies of the
Act that the respondent be ordered to cease and desist from certain
activities and practices in which we have found it to have engaged,
and in aid of such order and as a means of removing and avoiding the
consequences of such activities and practices, that the respondent be
directed to take certain affirmative action, more particularly described
below.
32 We have repeatedly held it a refusal to bargain where, at a time when the employees'
designated representatives are attempting to bargain collectively, an employer unilaterally
acts with respect to matters which normally are the subject matters of collective bargain-
ing. See Matter of Wilson & Company and United Packinghouse Workers L. I. Union
No. 51, 19 N. L. R. B. 990, and cases cited in footnote 11 therein ; Matter of John J..Oughton,
et al., individuals and co-partners trading as The Windsor Mfg. Co. and Textile Workers
Organizing Committee ( C. 1. 0.), 20 N . L. R. B. 801 . Insistence by the respondent upon
the statement of policy , rather than a binding agreement , differs only in the immaterial
circumstances that by taking such a position the respondent , in effect , threatened uni-
lateral action in the future. The threat, however, was immediately and at once created
a situation antithetical to the stable relationship envisioned by the Act.
33 In Matter of Harnischfeger Corp . and Amal. Assn of Iron, Steel & Tin Workers of
N. Amer., Lodge 1114, 9 N. L. R. B. 676 , 084, we said : "An essential purpose of collective
bargaining is to stabilize labor relations , so that workers may deal as business equals with
their employers as to their terms and conditions of employment . If the employer is at all
times to be free to change such terms and conditions unilaterally , collective bargaining
will have failed to achieve one of its fundamental aims."
PITTSBURGH METALLURGICAL COMPANY, INC. 1097
We have found that on June 3, 1938, and at all times thereafter,
the respondent refused to fulfill its obligations under the Act to bar-
gain collectively with the Union by refusing to enter into any binding
agreement with the Union, irrespective of terms proposed or under-
standings reached. Accordingly, we shall direct the respondent to cease
and desist from this unfair labor practice, and, upon request, to bar-
gain collectively with the Union as the exclusive representative of the
employees in the unit which we have found to be appropriate, with
respect to wages and other working conditions, and if an understanding
is reached on any of such matters, to enter into a binding agreement
with the Union as to such understandings.
The respondent has not contended that any agreement reached with
the Union should not be reduced to writing. In view of its readiness
to post signed statements of its labor policy on the bulletin boards of
its plant, a refusal to embody any understanding reached with the
Union in a signed agreement would manifest a determination to dis-
credit the Union and refuse to grant it the prestige of a contracting
party. We shall therefore also direct the respondent to reduce any
such binding agreement with the Union to a written signed contract.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUsIONs OF LAW
1. Local 12077, Gas and By-Product Coke and Chemical Workers
Union, District 50, United Mine Workers of America, is a labor organi-
zation within the meaning of Section 2 (5) of the Act.
2. All of the employees in the production, shipping, maintenance,
and yard departments of the respondent's plant, exclusive of clerical
workers, foremen, supervisory employees, engineers, technical workers,
and the janitress, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
3. Local 12077, Gas and By-Product Coke and Chemical Workers
Union, District 50, United Mine Workers of America, was on October
28,.1937,,a
'
nd at all times thereafter has been the exclusive representa-.
tive of all the employees in such unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
4. The respondent, by refusing to bargain collectively with Local
12077, Gas and By-Product Coke and Chemical Workers Union, Dis-
trict 50, United Mine Workers of America, as the exclusive repre-
sentative of all its employees in such unit, has engaged in and is
engaging in unfair labor. practices within the meaning of Section
8 (5) of the Act.
5. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7 of
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act -has engaged in and is engaging ' in unfair- labor practices
within the meaning of Section 8 (1).. of.the Act.
6. The aforesaid unfair labor' practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act,' the National Labor Relations Board hereby orders
that the respondent, Pittsburgh Metallurgical Company, Inc., and its
officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Local 12077, Gas and
By-Product Coke and Chemical Workers Union,; District 50, United
Mine Workers of America, as the exclusive representative of the
employees in the production, shipping, maintenance, and yard depart-
ments of the respondent's plant, exclusive of clerical workers, fore-
men, supervisory employees, engineers, technical workers, and the
janitress ;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing, and. to engage in concerted
activities for the purposes of collective bargaining or other mutual
aid or protection as guaranteed by Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Notify Local 12077, Gas and By-Product Coke and Chemical
Workers Union, District 50, United Mine Workers of America, in
writing, that it is prepared to renew negotiations looking toward a
collective bargaining agreement and to embody the terms of such
agreement as may be finally arrived at in a written signed contract;
(b) Upon request bargain collectively with Local 12077, Gas and
By-Product Coke and Chemical Workers Union, District 50, United
Mine Workers of America, as the exclusive representative of the em-,
ployees in the production, shipping, maintenance, and yard depart-
ments of the respondent's plant, exclusive of clerical workers, fore-
men, supervisory employees, engineers, technical workers, and the
janitress, in respect to rates of pay, wages, hours of employment, and
other conditions of employment, and if an understanding is reached
on such matters embody said understanding in a written, signed
contract;
(c) Post immediately, and keep posted for a period of at least, sixty
(60) consecutive days from the date of posting, notices to its em-
PITTSBURGH METALLURGICAL COMPANY, INC. 1099
ployees in conspicuous places throughout its plant, stating that the
respondent will cease and desist in the manner set forth in 1 (a) and
(b) and that ,it will take the: affirmative -action set forth in 2 (a)
and (b) of this Order;
(d) Notify the Regional Director for the Third Region, in writing,
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
J