Pryne & Co., Inc.

National Labor Relations Board - Board Decisions

Jun 9, 1953

105 N.L.R.B. 447 (N.L.R.B. 1953)

PRYNE & COMPANY, INC 447
employees Boettiger, Kendall, Crawford, Hutches, Martinez,
and Clark.
Nor do we find merit in the Employer's contention that one
employee, Kenneth Carter, who was permitted to vote an
unchallenged ballot, should have been excluded on the ground
that he also only occasionally works as a pressman. This is in
the nature of a post-election challenge and, therefore, will not
be considered by the Board. 4
Finally, we deny the Employer's request for reconsideration
of the unit finding. This request is not only untimely,' but also
presents no matters which warrant altering our prior deter-
mination herein.
As a majority of the eligible employees voting cast their
ballots for the Petitioner, we shall certify that labor organ-
ization as the exclusive bargaining representative of all the
employees in the appropriate unit.
[The Board certified Los Angeles Printing Pressmen &
Assistants' Union No. 78, International Printing Pressmen &
Assistants' Union of North America, AFL, as-the designated
collective-bargaining representative of all letterpressmen and
assistants at the Employer's Los Angeles, California, plant,
excluding all other employees, guards, and supervisors as
defined in the Act.]
Chairman Herzog and Member Murdock took no part in the
consideration of the above Supplemental Decision and Certi-
fication of Representatives.
4 Westinghouse Electric Corporation , 91 NLRB 955, 963; N .L. R. B. v A. J. Tower Company,
329 U S 324.
s William R Whittaker Co , Ltd, 94 NLRB 1151,1152.
PRYNE & COMPANY, INC. and UNITED ELECTRICAL, RADIO
& MACHINE WORKERS OF AMERICA, (UE) LOCAL 1421.
Case No. 21 -CA-1146. June 9, 1953
DECISION AND ORDER
On May 9, 1952, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding
that Respondent had engaged in certain unfair labor practices
and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, Respondent filed
exceptions and a supporting brief. No exceptions were filed by
the Intervenor Union' or by the General Counsel.
1 The International Brotherhood of Electrical Workers, Local 1710, AFL, intervened at the
hearing
105 NLRB No. 51
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board2 has reviewed the rulings made by the Trial
Examiner and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and entire
record in the case and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the following
additions and modifications:
1. Like the Trial Examiner, we find that the Respondent on
and after May 17, 1951, failed to bargain in good faith with the
charging Union, Local 1421 of the United Electrical, Radio &
Machine Workers of America (UE) 3 thereby violating Section
8 (a) (5) and (1) of the Act. In so finding, we rely solely on the
following considerations:
The Respondent, except for a brief period in 1950, had un-
broken contractual relations with the charging Union from 1940
to June 30, 1951. The last of these contracts ran from September
1, 1950, to June 30, 1951. There were no strikes or other work
stoppages during this period. Both before and during the course
of the 1951 contract negotiations, as found by the Trial Ex-
aminer, the Respondent by statements to employees made it
clear that it had determined (1) not to consummate any agree-
ment with the Local and (2) actively to assist IBEW 4 to dis-
place the Local as the representative of the employees.
During the Local's unsuccessful negotiations with the Re-
spondent in the first few months of 1951 for a wage increase
under the wage reopening clause of the September 1950 con-
tract between the parties, the Respondent's advertising and
sales promotion manager, Cabana, told an employee Royalty)
that the Respondent would be "very glad to give the em-
ployees] a raise of ten or fifteen cents an hour if the IBEW
was in. . . ."s At the time this statement was made, the Re-
spondent was firmly resisting the Local's demand for a 15-cent
an hour increase.
About the same time, Cabana told employee Freeman, as
found by the Trial Examiner, that the Respondent did not "want
the UE in here . . . they won't be in existence much longer."
On 6 or 8 other occasions Cabana told Freeman he belonged to
the wrong union. Thereafter, on March 21, 1951, the Respond-
ent, after flatly rejecting the Local's demand for a 15-cent
wage increase , announced to the Local and the employees that
2 Pursuant to the provisions of Section 3 (b) of the Act, as amended, the National Labor Re-
lations Board has delegated its powers in connection with this case to a three - member panel
[Members Murdock , Styles, and Peterson]
3 1'he Local is also referred to herein and in the Intermediate Report as "UE"
41BEW had since 1946 competed unsuccessfully with the Local for the right to represent
Respondent 's employees The Respondent 's president , Pryne, testified that he had told em-
ployees in December 1950 that' the Respondent unquestionably had "suffered a considerable
loss of business " because its products did not bear the AFL label . IBEW is affiliated with the
AFL.
5 The quotation is from Royalty's uncontradicted testimony which was credited by the Trial
Examiner.
PRYNE & COMPANY, INC. 449
it was instituting a 4-cent increase regardless of the Local's
wishes in the matter.
On the same day, Rea, a labor relations consultant employed
by the Respondent as found by the Trial Examiner, told Lambert,
a member of the Local's negotiating committee, "I don't think
we will have to worry much about the UE after this contract
[i.e., the September 1950 contract] expires." Five days before
the foregoing statement by Rea, he had written a letter to the
Local on behalf of the Respondent terminating the existing
contract, which was not to expire by its terms until the follow-
ing June 30. In this letter, Rea impugned the motives of the
Local's leaders and stated that the Respondent would not sign
any further contract with the Local unless it contained "ade-
quate safeguards" against interruptions of production.
In April 1951, about a month before commencing negotiations
for a new contract, employee Loghry was told by his foreman,
Miller, in the course of a discussion of the impending negotia-
tions, that he (Miller) did not think "there would be another con-
tract" with the Local. About the same time the Respondent's
vice president, Kelly,6 told an employee, Liscomb, as foundby
the Trial Examiner, that the Respondent's contract with the
Local would soon expire and he was "going to get rid of [the
local] by hook or crook," that IBEW was a good union, that he
"could get enough men in there so that when the election came
up . they would have enough men to" assure the selection of
IBEW, that he was going to "get" two of the "agitators in the
plant" and "they would not be around very long." On June 30,
after prolonged and fruitless negotiations between the Respond-
ent and the Local had culminated in a strike vote, Cabana, in
discussing the impending strike with employees Freeman and
Tabor, told them, as found by the Trial Examiner, that the
Local "was the only thing . . . standing in the way of an agree-
ment, and that the Respondent's president disliked the Local.
Cabana then suggested that the employees enter into an agree-
ment directly with the Respondent, without the aid of the Union.
The employees went on strike July 2, 1951. About 2 or 3
weeks later, when employee Royalty asked Vice-President
Kelly why Respondent would not sign a contract with the Local,
Kelly replied that he had had dealings with the UE in the East
and "they had nothing good for the Company."
It is clear from the foregoing, and we find, that when the
Respondent on May 10, 1951, entered into contract negotiations
with the Local, it did so with a determination not to reach any
agreement and to pave the way for displacement of the Local
by IBEW. The entire course of the Respondent 's negotiations
with the Local, and of Respondent's later dealings with IBEW,
lend further support to this conclusion.
The details of the bargaining conferences are set forth in
the Intermediate Report. They continued from May 10 to Octo-
6 Kelly had during the preceding 2-year period represented the Respondent in its labor re-
lations
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ber 24, 1951. All efforts by the Local to expedite the nego-
tiations were resisted by the Respondent. On July 18, the Re-
spondent interjected into the negotiations a demand that the
Local post a $50,000 performance bond to indemnify the
Respondent against any damages for breach of contract, if one
was executed. This demand was made despite the fact that
during the 11 years of its contractual relations with the Re-
spondent, the Local had not been required to post such a bond,
and despite the absence of any evidence that the Local had been
responsible for any breach of contract during that entire
period.? Other proposals made by the Respondent, which had
no counterpart in any of the parties' prior contracts, called
for assurances against defamation of the Respondent by the
Local, and for the execution of non-Communist affidavits by
its representatives, as more fully detailed in the Intermediate
Report.' None of these proposals was calculated to promote
harmonious relations at the bargaining table. Moreover, it
was the Respondent's insistence on the latter proposals,
among others, that prevented the parties from reaching
agreement on September 20. On that date the Local abandoned
all its major demands and proposed that the parties sign
the old contract plus changes already agreed upon, with
reinstatement of the strikers. The Respondent rejected this
offer.
There was one more bargaining conference, on October
24, which was unproductive. About a week later, IBEW
requested the Respondent to recognize it as the representative
of the majority of the employees. On December 5, 1951, the
Respondent agreed to submit to an arbitrator the question
whether IBEW represented a majority of the employees. After
the arbitrator upheld IBEW's claim, the Respondent on Feb-
ruary 6, 1952, agreed to bargain with IBEW and met with it
2 days later.
Thus the Respondent accomplished its two avowed objec-
tives--namely, to terminate its contractual relations with the
Local, and to have IBEW supplant the Local as the repre-
sentative of the employees. The Respondent having openly
announced this purpose to the employees, and having further
discredited and undermined the Local by engaging in bad
faith in prolonged and fruitless negotiations, any shift in the
allegiance of the employees from the Local to IBEW is at-
tributable to the Respondent's unlawful conduct, and may not
therefore justify the Respondent's recognition of IBEW.
7 While there was some suggestion in the record that the employees had engaged in a slow-
down during the negotiations which culminated in the wage increase of March 21, 1951, the
record does not establish when this slowdown occurred, if at all.
e These proposals were contained in the first draft submitted by the Respondent on May 15,
and it was not until the final bargaining conference on October 24 that the Respondent indicated
any disposition at all to withdraw them Moreover, the belated offer to withdraw the demand
for non-Communist affidavits was conditioned upon a determination that the clause was illegal
How or when such a determination was to be made is not indicated by the record
PRYNE & COMPANY , INC. 451
In view of the foregoing , and upon the entire record in this
case, we find , as did the Trial Examiner , that at all times on
and after May 17, 1951 , the Respondent refused to bargain in
good faith with the Local in violation of Section 8 (a) (5) and
(1) of the Act.9
2. We find, also , that the Respondent independently violated
Section 8 ( a) (5) and ( 1) of the Act by its insistence upon the
inclusion in the contract of a clause excusing the Respondent
from bargaining with any representative of the Local or its
International who declined to furnish an affidavit disavowing
membership in, or affiliation with, the Communist Party or
any similar organization . Insofar as it applied to representa-
tives who are not officers of the Local or International, this
requirement would exact non-Communist affidavits from per-
sons not required to furnish such affidavits by Section 9 (h)
of the Act . Insofar as it applied to such officers , they had
already filed such affidavits with the Board . In either case,
the Respondent was not entitled to insist upon such a clause.
In the case of Square D Company,i° the Board recently held
that that company violated Section 8 (a) (5) and ( 1) of the Act
by its insistence upon a contract clause similar to that
demanded by the instant Respondent.
The Respondent contends that its insistence upon the af-
fidavit clause was justified by the fact that the Local's
parent body , UE, was expelled from the CIO because of al-
leged Communist domination and that both UE and the Local
had failed to comply with the affidavit filing requirements
of Section 9 (h) of the Act until late in 1951 . However, as late
as September 1949, while both UE and the Local were still
out of compliance with Section 9 (h), the Respondent negotiated
and executed a contract with the Local . The fact that the
Respondent waited until after UE and its Local had complied
with Section 9 (h) before raising the issue of Communist
domination is persuasive that this issue was not raised in good
faith but merely as a mask for the true reason for the Re-
spondent ' s unwillingness to deal with UE--namely, its belief
that its economic interests would be better served by dealing
with IBEW.
3. We further find, as did the Trial Examiner, that the
Respondent illegally supported and assisted the IBEW in
violation of Section 8 (a) (2) and ( 1) of the Act, by refusing to
bargain in good faith with the Union, by entering into the
"Submission Agreement " with IBEW in December 1951, and by
later recognizing the IBEW as the exclusive bargaining
representative of its employees . " However , we do not adopt
9 In reaching this conclusion , we have not relied on the proposal reserving to Respondent
the right unilaterally to establish an incentive pay plan, or on footnote 50 of the intermediate
Report
10105 NLRB 253.
11 See Indianapolis Newspaper, Inc., 103 NLRB 1750
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Trial Examiner's other findings of violations of Section
8 (a) (2) of the Act by the Respondent. Such findings are based
either on events occurring more than 6 months before the
filing of the charge or upon testimony which the parties agreed
at the hearing should not be considered as a basis for finding
Section 8 (a) (2) violations.12
4. The Trial Examiner also found that the Respondent inde-
pendently violated Section 8 (a) (1) of the Act by various
remarks of management to the employees containing threats
of reprisal for union activity and offers of benefits for abandon-
ing the Local. We agree. However, we do not rely, as did the
Trial Examiner, upon Pryne's remarks to Treise in 1950
or upon Pryne's tacit approval of and aid in the solicitation
of membership withdrawals from the Local, as this conduct
in both cases occurred more than 6 months before the filing
of the charge herein.
5. We also agree with the Trial Examiner that the strike
of July 2, 1951, was an unfair labor practice strike, the main
cause of which was Respondent's unlawful refusal to bargain;
and that Respondent's refusal to reinstate the 12 strikers upon
their unconditioned request constituted discrimination in
violation of Section 8 (a) (3) and (1) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that Respondent,
Pryne & Company, Inc., Pomona, California, its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with United Electrical,
Radio & Machine Workers of America, (UE) Local 1421, as
the exclusive representative of the employees in the following
appropriate unit: All plant production and maintenance em -
ployees, including shipping and receiving employees, at the
Respondent's Pomona, California, plant, but excluding clerical
employees, workmen, guards, professional employees, and
supervisors as defined in the Act.
2. Take the following affirmative action, which the Board
finds will effectuate the policies of the Act:
(a) Upon request, bargain collectively with United Electrical,
Radio & Machine Workers of America, (UE) Local 1421, as
the exclusive representative of the employees in the above-
liOn March 3, 1952, during the course of the hearing herein, the General Counsel moved to
amend the complaint to include an allegation that the Respondent had unlawfully assisted IBEW,
in violation of Section 8 (a) (2) of the Act. All parties agreed to this amendment on condition
that none of the testimony already taken at the hearing be considered by the Board as a basis
for finding such a violation While this stipulation does not specifically preclude findings of
derivative violations of Section 8 (a) (1) of the Act based on such prior testimony, we presume
that it was the intent of the parties to bar, and we will not make, such findings
PRYNE & COMPANY, INC. 453
described appropriate unit, and embody in a signed agreement
any understanding reached.
(b) Offer to the persons whose names appear on Appendix
A attached to the Intermediate Report immediate and full
reinstatement to their former or substantially equivalent
positions , except those already so reinstated , and make them
whole for any loss of wages suffered as a result of the dis-
crimination against them in the manner set forthin the section
entitled "The Remedy" in the Intermediate Report.
(c) Withdraw from the "Submission Agreement" entered into
with IBEW on or about December 5, 1951, and from any and all
agreements of like nature, and withhold from IBEW any other
illegal assistance and support and recognition.
(d) Upon request, make available to the Board or its agents
for examination and copying all payroll records, social-security
records, timecards , personnel records and reports , and all
other records necessary to analyze the amounts of back pay
due the persons whose names appear on Appendix A attached
to the Intermediate Report and their rights of reinstatement.
(e) Post at its plant in Pomona, California, copies of the
notice attached to the Intermediate Report and marked "Ap-
pendix B." iS Copies of said notice, to be furnished by the
Regional Director for the Twenty-first Region (Los Angeles,
California), shall, after being duly signed by Respondent's
representative, be posted for sixty (60) consecutive days
thereafter in conspicuous places, including all places where
notices to employees customarily are posted. Reasonable steps
shall be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for the Twenty-first Region,
in writing, within ten (10) days from date of this Order what
steps the Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the allegations of the second
amended complaint that Respondent discriminated against
Henry C. Braden and that all other allegations of said com-
plaint relating to unfair labor practices not found in this
Decision and Order be dismissed.
Is This notice shall be amended by substituting for the words "The Recommendations of a
Trial Examiner" the words "A Decision and order." In the event that this Order is enforced
by a decree of a United States Court of Appeals, the notice shall be further amended by sub-
stituting for the words "Pursuant to a Decision and Order" the words "Pursuant to a
Decree of the United States Court of Appeals, Enforcing an Order "
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge and an amended charge duly filed by United Electrical, Radio & Machine
Workers of America, (UE) Local 1421, herein called UE, the General Counsel of National
Labor Relations Board, herein respectively called the General Counsel and the Board, by the
then Acting Regional Director for the Twenty-first Region (Los Angeles, California), issued
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his second amended complaint on January 30, 1952, alleging therein that Pryne & Company,
Inc , Pomona, California, had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the
National Labor Relations Act, as amended, 61 Stat 136, herein called the Act
Copies of the second amended complaint, the charge, and the amended charge, together with
notice of hearing thereon, were duly served upon Respondent and UE.
With respect to the unfair labor practices, the second amended complaint alleged in sub-
stance that Respondent (1) by means of certain stated acts and conduct interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of
the Act, (2) on January 3, 1951, and at all times thereafter, refused to bargain collectively
with UE as the exclusive representative of its employees in a certain appropriate unit,
although the majority of its employees in said unit had designated and selected UE as their
representative for such purpose; and (3) refused to reinstate 13 named employees to their
former positions at the termination of the strike at Respondent's plant, although the strike
was caused and prolonged by Respondent' s unfair labor practices and the said 13 employees had
unconditionally offered to abandon the strike and return to work
Respondent's answer denied the commission of the alleged unfair labor practices
Pursuant to notice, a hearing was held between February 11 and March 7, 1952, before the
undersigned, the duly designated Trial Examiner The General Counsel and Respondent were
represented by counsel, UE by officials thereof. Full opportunity was afforded all parties to
participate in the hearing, to examine and cross-examine witnesses, and to introduce evi-
dence pertinent to the issues. During the course of the hearing, the undersigned granted the
General Counsel's unopposed motion to amend the second amended complaint to allege that
Respondent violated Section 8 (a) (1), (2), and (5) of the Act by giving "illegal support, as-
sistance and recognition to the International Brotherhood of Electrical Workers, Local Union
No 1710," affiliated with the American Federation of Labor, herein called IBEW, "in con-
travention of the rights of [UE] as the exclusive certified bargaining representative of"
Respondent's employees.i At the conclusion of the taking of evidence, oral argument was had
in which counsel for Respondent, IBEW, and the General Counsel participated The parties
were then advised that they might file briefs with the undersigned on or before March 27,
1952 2 Briefs have been received from the General Counsel and Respondent which have
been carefully considered
Upon the entire record in the case and from his observation of the witnesses, the under-
signed makes the following-
FINDINGS OF FACT
I, THE BUSINESS OF THE RESPONDENT
Pryne & Company, Inc , a California corporation, has its principal place of business at
Pomona, California, where it is, and during all times material herein was, engaged in the
manufacture, sale, and distribution of electric ventilators and recessed lights. During 1949,
Respondent purchased raw materials and supplies valued in excess of $ 660,000, of which
more than 48 percent was shipped to its Pomona plant from points located outside the State
of California During the same year, Respondent's total sales aggregated in excess of
$1,550,000, of which more than 75 percent was shipped to points located outside the State
of California
iDue and timely service of a written notice was made upon Respondent and IBEW of the
General Counsel 's intention to amend the second amended complaint to allege the aforesaid
illegal support, assistance , and recognition to IBEW . The said notice further stated that the
General Counsel also intended to move to make IBEW a party-respondent herein . Upon the
granting of the aforementioned motion, counsel for IBEW moved for leave to intervene.
The motion was granted without objection . Counsel for IBEW then requested a continuance of
the hearing for the purpose of preparing his defense. The application was granted and the
requested time allowed Upon resumption of the hearing , counsel for IBEW wag given full
opportunity to participate in the hearing , to examine and cross - examine witnesses, and to
introduce evidence pertinent to the issues Respondent ' s answer to the second amended com-
plaint was deemed amended to deny it violated Section 8 ( a) (1), (2), and ( 5) of the Act with
respect to its relationship and dealings with IBEW
2 At Respondent ' s request the time was extended to April 9
PRYNE & COMPANY, INC 455
Respondent's 1951 purchases and sales were substantially equal to its 1949 purchases and
sales
Upon the above-undisputed facts, the undersigned finds that during all times material herein
Respondent was and still is engaged in commerce within the meaning of the Act.
IL THE ORGANIZATIONS INVOLVED
United Electrical, Radio & Machine Workers, (UE) Local 1421, unaffiliated, and Inter-
national Brotherhood of Electrical Workers, Local Union 1710, affiliated with American
Federation of Labor, are labor organizations admitting to membership employees of Re-
spondent
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion; refusal to bargain
collectively with UE
1 Background and sequence of pertinent events 3
Under date of August 1, 1940, UE and Respondent entered into a collective-bargaining con-
tract covering all the latter 's production and maintenance employees and those directly as-
sociated with production exclusive of salesmen, office employees, supervisors, foremen,
and watchmen. Thereafter and until June 30, 1951, except for a short period in 1950, when the
question of representation was before the Board for decision, Respondent and UE had had con-
tinuous contractual relations covering the persons employed in substantially the same category
mentioned in the 1940 contract 4
In 1946, Respondent, while a collective-bargaining agreement with UE was in existence,
moved its plant from Los Angeles to Pomona, California, which is located some 35 miles
from Los Angeles UE claimed the right to represent Respondent's employees at the new
Pomona plant Respondent disputed that contention. On July 2, 1946, IBEW6 served upon
Respondent a demand for recognition, claiming that it represented the majority of Respond-
ent's employees. A week later, July 9, UE filed with the Board a charge alleging that Re-
spondent committed certain unfair labor practices On July 15 IBEW filed with the Board a
representation petition, and on August 20 Respondent also filed a representation petition In
the interim between the filing of the IBEW's and Respondent's petitions, UE brought an action
in the appropriate State court of California against Respondent and obtained therein an order
temporarily restraining Respondent from refusing to recognize UE as the collective-bargain-
ing representative of the employees covered by the then existing contract and directing Re-
spondent to continue in effect the existing contract
UE's charge was subsequently withdrawn and an agreement was entered into by and between
Respondent, UE, and IBEW for a secret ballot election to be held under the auspices of the
Board At the election held on December 20, 1946, 48 votes were cast for UE and 14 for IBEW
Pursuant to the aforesaid consent-election agreement, the Regional Director for the Twenty-
first Region on January 3, 1947, certified UE as the collective-bargaining representative of
Respondent's employees in the agreed unit
9Some of the incidents described in this section antedated January 5, 1951, 6months prior
to the filing of the original charge herein, and hence no finding of unfair labor practices may
properly be made with respect to them. However, it was understood at the hearing herein that
evidence concerning matters antedating January 5, 1951, would be admitted only as showing
background circumstances relevant to the alleged unfair labor practices Accordingly, the
undersigned does not find that the incidents which occurred prior to January 5, 1951, were
unfair labor practices as such, but does find that they are indicative of Respondent's attitude
prior to, and cast light upon its motives in connection with, the activities alleged in the com-
plaint.
4The second amended complaint alleged, Respondent's answer admitted, and the undersigned
finds, that during all times material herein allRespondent's production and maintenance em-
ployees, including shipping and receiving employees, exclusive of clerical employees, watch-
men, guards, supervisors, and professional employees as defined by the Act, constituted, and
now constitute, a unit appropriate for the purposes of collective bargaining.
5 The IBEW local then involved was known as Lccal B-11.
39i555 0 - 54 - 30
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
No further dispute arose between Respondent and UE over the question of representation of
the former ' s employees in the appropriate unit until sometime in July 1950 , when Respondent
served notice upon UE of its election to terminate the then existing contract , after it had
engaged in 21 months of unsuccessful negotiations with UE and after receipt by Respondent of
a demand from IBEW to be recognized as the bargaining agent for Respondent ' s employees.
On July 21 , 1950, IBEW filed a representation petition with the Board alleging therein that
it represented the majority of the employees in the unit which the parties here involved agreed
in 1946 was appropriate.
A consent - election agreement was thereupon entered into by and between Respondent,
IBEW, and UE and a secret ballot election was conducted by the Board on August 8, 1950,
in which 78 votes were cast for UE, 28 for IBEW, and 1 for "neither union " On August 16,
1950, UE was certified as the statutory representative of the employees in the agreed-to
unit.6
On October 25, 1950 . a petition for a UA election was filed by UE and pursuant thereto the
aforesaid Regional Director conducted a secret ballot election on November 27, whereat of
the 124 eligible voters, 79 voted in favor of UE seeking a union-shop contract with Respond-
ent and 33 voted against it.
The last contract entered into by UE and Respondent, made effective as of September 1,
1950, provided that it was to remain in full force and effect until midnight of June 30, 1951,
unless either party gave notice of termination , modification , or revision 60 days prior to
June 30 If no notice was given the agreement was to be renewed from year to year The
agreement also provided that either party might request the contract be opened on wages
only, at any time during the term of the contract, upon 10 days' written notice The contract
contained a no-strike and a no-lockout provision which, however, would cease to bind the
parties if , the contract was properly reopened for wages , the parties were unable to reach
agreement thereon within 60 days . The contract further provided that negotiations on proposed
changes should not commence prior to 50 days before the expiration date and that the agree-
ment should remain in full force and effect during the ensuing negotiations but with the
understanding that on, or at any time after , the expiration date either party might terminate
by giving 10 days' written notice to the other party.
The contract also provided for a checkoff of dues of those employees voluntarily signing
and presenting to Respondent a written authorization to that effect and UE agreed to indemnify
Respondent against any lawsuits , demands, or claims arising out of Respondent 's compliance
with the agreement's checkoff provisions.
In December 1950, employees Tabor and Carters called at the home of the Respondent's
advertising and sales promotion manager, Charles Cabana , Jr.9 Regarding this incident,
Cabana testified that Tabor and Carter came to his home univited; that they told him a move-
ment had been started " in the shop amongst a number of employees to resign from the UE"
because they "were rather perturbed about" UE increasing the monthly dues9 and they inquired
whether he thought "they could possibly get into trouble if they circulated a petition in order
to get more people lined up to withdraw from the union", that after he told Carter and Tabor
that he was unable to advise them, they suggested that he telephone Pryne and ask Pryne to
come to his house; that he thereupon telephoned Pryne, told Pryne "there are two gentlemen
from the plant down here that apparently have something serious to ask you," and he then
asked Pryne if he was free to come to his house to talk to the two men, that Pryne, despite
the fact he was suffering from a cold and did not know the nature of the employees' visit,
6 According to the credible testimony offormer employeeEdward E. Loghry, Ralph R. Pryne,
Respondent's president, assembled the employees in the plant about a week or 10 days before
the aforementioned election and told them that Respondent's products were being boycotted by
IBEW, that Respondent needed IBEW labels on its products, and that he hoped the employees
would vote "correctly" in the forthcoming election.
7 Tabor was one of Respondent's truckdrivers and Carter worked in the assembly depart-
ment.
6Respondent does not dispute Cabana's supervisory status. It contended at the hearing and
in its brief, however, that Cabana's anti-UE statements and activities cannot properly be at-
tributed to it because Cabana "had neither supervision over employees in the bargaining unit
nor any vestige of authority in the field of employee or union relations." The undersigned finds
the contention to be without merit.
sunder date of November 21, 1950, UE wrote Respondent, who, in turn, posted the letter
on the plant's bulletin board, that commencing December 1 the regular monthly dues would be
increased from $2 to $3.
PRYNE & COMPANY, INC. 457
came to his house, that when Pryne arrived at his house, Tabor told Pryne, to quote Cabana,
"There were a number of people that were unsatisfied with the present set up and
[Tabor] wanted to know if he would get into any trouble[with management] if a movement
,[was] started to resign from the UE", that Pryne replied, according to Cabana's testimony,
"as far as he was concerned he didn't think they would get in any trouble at the plant, but
he iiougit they would be wasting their time", that Tabor then inquired about the "serious-
ness of the supposed boycott of our products due to the fact that they didn't have any AFL
label", and that Pryne stated, "there were a number of instances where our goods were
returned or they were not installed because they did not bear AFL labels" and that on many
occasions Respondent was forced to fill orders from its Newark, New Jersey, plant because
those goods bore AFL labels
Pryne testified that he told Tabor and Carter at the aforesaid meeting at Cabana's home
that "unquestionably we have suffered a considerable loss of business" due to the fact that
Respondent's products do not bear AFL labels, and that he also told them that as far as he
was concerned he could not advise them regarding the circulation of a withdrawal petition
because "a matter such as that was one in which I had no place, that all I could do was give
them the facts and that any action they took would have to be by them, with no advice or counsel
from the company "
Sometime in January or February 1951,10 Tabor gave former employee Edward E. Loghry
some slips reading as follows:
To: Pryne & Co , Inc.
I hereby advise you that I have resigned from Local 1421 U.E.RM.W.A., and that the
authorization for check-off of my dues previously furnished you is hereby revoked, ef-
fective as of this date
Tabor then asked Loghry to circulate the slips in the paint shop and have them signed by those
employed therein Before doing as requested, Loghrywentto his foreman, Morgan Miller, told
him about the slips and asked whether he would "get in trouble" with Morgan if he circulated
the slips in the plant Miller replied, according to Loghry's credible and undenied testimony,
"No, but you had better see Max Lafferty, the plant superintendent, before doing so " Loghry
further testified credibly and without contradiction that he then went to Lafferty, told Lafferty
of his conversation with Miller, and that Lafferty replied that he was not supposed to let him
circulate the slips but "what I can't see I can't very well stop " Loghry then returned to the
paint shop, circulated the slips among the employees during working hours, and obtained
signatures to about 20 slips.
Under date of January 31, Respondent wrote UE that it had impounded the dues of certain
named employees who had notified it to cease deducting their dues On February 16, Respond-
ent informed UE that it would cease checking off the dues of employees who submitted written
instructions not to make such deductions UE, by letter dated February 26, protested this con-
duct, stating that it was a violation of the contract for Respondent to refuse to deduct the dues
of those employees who had previously signed dues-deduction authorizations.
Respondent's reply of March 30 did not contradict the assertions of UE's letter regarding
Respondent's violation of the contract, but stated that Respondent intended to continue honoring
withdrawals of checkoff authorizations Respondent, in the correspondence referred to, cited
section 300 of the California State Labor Code it as authority for its position in refusing to
make dues deductions However, Respondent only ceased deducting the dues of those employees
who had notified Respondent of their desire to revoke the checkoff authorizations It did not
refuse to check off the dues and, in fact, continued to check off dues of all other employees
By letter dated January 3, UE advised Respondent that, pursuant to article XXVII, it was
reopening the contract on wages only and requested a negotiation meeting The first meeting
was held on January 11 UE requested a general wage increase of 15 cents an hour and Re-
spondent stated that it would study the matter and try to give its decision within approximately
a week.
The second meeting was held January 13 Thereat, Carl Brant, UE's business agent, pointed
out that a raise freeze was expected Henry Boynton, one of Respondent's labor relations
consultants, stated that Respondent had weighed the problem from the viewpoint of the cost
of living and had considered its present wage rates and was of the opinion that no increase
10 Unless otherwise noted, all dates hereafter mentioned herein relate to 1951.
U This section, in effect, forbids the assignment of wages of a married person without the
written approval of the spouse.
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
should be granted at that time Btynton further stated that Respondent would broaden its in-
vestigation of area rates of comparable shops and would meet again with UE. Brant stated
that if an increase was granted it should be retroactive to January 11
The third meeting was held January 23 Edward F. Kelly, Respondent ' s vice president in
charge of labor relations , stated that Respondent ' s wage rates were in line with or better
than wage rates paid by comparable companies in the Poniona area Brant replied that Re-
spondent must be prepared to make a proposal regarding an increase Kelly refused to make
a proposal and stated if it was ascertained that Respondent ' s rates were out of line they would
then make a proposal Brant replied that the employees felt they had to have an increase and
were at a loss to understand why there was no proposal from Respondent
A fourth meeting was held on February 15 Federal Conciliator Goodwin was present at
this meeting at the request of UE. At Goodwin ' s request Brant detailed what had occurred at
the three prior meetings Respondent ' s representative again stated that Respondent refused
to grant any wage increase and that it certainly would not grant any retroactive pay even if
an increase was granted
Under date of March 16, Respondent wrote UE terminating the then existing contract.
The fifth and final wage reopening meeting occurred on March 21 The Union requested that
a 15-cent per hour increase , retroactive to January 11, be presented to the Wage Stabiliza-
tion Board by joint petition of Respondent and UE. Respondent ' s representatives replied that
it was putting into effect a general 4-cent per hour general wage increase effective March 22,
whether UE agreed to it or not UE then requested that the Respondent make the increase
retroactive to January 11, which request was refused
Immediately following the conclusion of the aforesaid meeting, a bulletin was posted on the
plant ' s bulletin board informing the employees that Respondent had told UE, during the nego-
tiating meeting held that day, that it was putting into effect a 4-cent an hour across - the-board
increase effective March 22, whether the Union accepted it or not
While discussions were being had with UE regarding its demands for a wage increase, Re-
spondent's managerial staff was attempting to undermine UE in the eyes of the employees
Thus, according to the credible and undenied testimony of former employee Richard R
Royalty, Cabana told him, sometime during January or February 1951, during a conversation
in Cabana ' s office, "the company would be very glad to give [the employees] a raise of ten
or fifteen cents an hour if the IBEW was in
George E. Freeman , who is still in Respondent ' s employ, credibly and without contradiction
testified that during February he complained to Cabana about Respondent sending to outside
sources display work which he and other employees formerly did , that Cabana replied, to
quote Freeman, "if I belonged to the right union things would be different", that he then stated,
"I didn ' t understand that because I thought your free choice is what you should have and that
we had made our choice by voting " to which Cabana responded , " Well, you know the old man
doesn ' t want the UE in here He doesn ' t like them and they won ' t be in existence much longer,
anyway They are not financially stable" , and that on 6 or 8 other occasions Cabana told him
he belonged to the wrong union
Loghry testified credibly and without contradiction that sometime in January, February,
or possibly in May , he asked Foreman Miller why Respondent did not bargain in good faith
with UE because it seemed to him "every time something comes up to discuss we don't hit
it off [ therefore] we will have to take care of some of those things in the next contract"
and that Miller replied, "I don ' t think there will be another contract with UE "
Former employee Fred Treise testified that he did odd jobs at Pryne's home in addition to
his work in the plant , that occasionally he drove to and from the plant to Pryne's home with
Pryne, that commencing sometime in 1950 he had conversations with Pryne regarding UE
and IBEW , that some of the conversations took place while lie and Pryne were en route to or
from the latter ' s home and others took place in Pryne ' s private office at the plant, that on one
occasion, when he was called into Pryne's office to repair an electric light, Pryne said to
him
Sit down a minute I would like to talk to you This is just off the record between you
and me You know that this thing of the UE is getting mighty , mighty serious and frankly,
they are not stable and sooner or later they are going to be washed up
You know , as well as I do, that if you went out here and talked to the boys you could
swing the boys to the IBEW, and you yourself would be earning $ 1 95 or $ 2 00 I don't
know what the scale is in your field, but, sooner or later the UE is going to be washed up
PRYNE & COMPANY, INC. 459
because they are financially not stable I don't have to tell you that they are Communist-
infested Well, you can see the point Get into the IBEW and make your job pay a lot more
money 12
Pryne denied making the statements attributed to him by Treise, adding, "I was very care-
ful what I said to Mr Treise, because I was reasonably sure that anything I said to him would
go immediately to the union business agent." Pryne further testified that on one occasion
Treise came to his office and remarked that if the boys "swung over" to the IBEW Treise
would receive about 25 or 40 cents more per hour because IBEW ' s wage scale was higher than
the UE's and that he replied, "Fred, I have no idea what the IBEW wage scales are and I have
no knowledge as to whether you would or would not be making more " Treise favorably im-
pressed the undersigned with the straightforward, sincere, and honest manner with which he
testified On the other hand, Pryne's demeanor while on the witness stand clearly indicated
to the undersigned that Pryne was withholding the true facts. Under the circumstances, the
undersigned finds that Pryne made the statements attributed to him by Treise
After the March 21 meeting, at which the4-cent per hour increase was announced, H. DeVoe
Rea (head of the Biddle Trade Bureau , a labor relations consultant concern employed by Re-
spondent), who attended the meeting , asked James W. Lambert (a former employee of Re-
spondent), who had attended the meeting as a member of the UE negotiating committee,
during a conversation which Rea initiated , whether Lambert was "a churchgoing man" and
after Lambert had replied that he was a Catholic, Rea advised Lambert to consult his priest
for Rea felt sure that if Lambert did so, Lambert "wouldn't be such a firm believer in the
UE." Rea then remarked, to quote Lambert's credited testimony, "I don't think we will have
to worry much about the UE after this contract expires anyway " When Lambert asked Rea
what he meant by his last remark, Rea did not reply but merely walked away. i3
In his letter of March 16, terminating the then existing agreement, which only had been
executed the previous October and still had about 3Z months more to run, Rea stated, in part:
Pryne & Co for a considerable period of time has truly and honestly questioned motives
and desires on the part of the professional leadership of the U. E. Serious doubt has been
raised in the minds of the owners of Pryne & Co as to whether the leadership of the U. E.
is genuinely interested in the welfare of its Union members, the Company, the community
and the country as a whole
Pryne & Co. fully realizes its obligation to bargain collectively with the legally chosen
collective bargaining agency pursuant to provisions of the Labor Management Relations
Act of 1947, and further gives assurances to you that it will comply fully with all provi-
sions of governing law
However, because there is serious doubt in the minds of owners of Pryne & Co as to
the motives and objectives on the part of the leadership of the U. E. as afore indicated,
and because of various occurrences , incidents , work stoppages, etc , having taken place
under the leadership of the U. E., the Company believes that it is wise and in fact proper
to terminate said existing collective bargaining agreement It is deemed necessary by
Pryne & Co that before any further collective bargaining agreement is executed such
collective bargaining agreement must necessarily provide adequate safeguards to the
Company that uninterrupted production can prevail and that the U. E. will in no way attempt
to interfere with, limit or otherwise obstruct production or interfere with harmonious
relationship by and between the Company and its employees
A copy of this letter is being made available to all the employees of Pryne & Co Inc >a
12 At that time Treise was receiving about $1 64 per hour.
i3Rea did not testify Kelly testified that he heard Rea ask Lambert whether Lambert was
a churchgoing man and Rea's suggestion that Lambert discuss UE with his priest, but denied
that Rea stated to Lambert, "I don't think we will have to worry about the UE after this con-
tract expires anyway" or any similar statement. Upon the entire record in this case the under-
signed rejects Kelly's denials and finds that Rea made the statements attributed to him by
Lambert.
i4 Within a few days of the mailing of this letter, Pryne assembled the employees in the plant,
read a copy thereof to them, and then said, "I read it, it is in black and white, and it means
exactly what it says." In the past, as Pryne testified . Respondent ' s termination letters
"merely" stated "in plain English that the contract would be considered terminated by us at
a certain date " Furthermore, the, employees were not assembled and the letters read to them
but, as Pryne admitted , copies thereof were merely posted on the plant bulletin board and the
shop committee informed of "what we were going to do and why."
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under date of April 6, UE wrote Respondent of its desire to modify the agreement and
requested a meeting for the purpose of negotiations Under date of April 30, UE wrote Re-
spondent stating that no reply had been received to its request of April 6 and again requested
Respondent set a time for a meeting for the purpose of contract negotiations, adding that it
was available for that purpose on May 3, 7, 8 , and 10 Respondent replied on May 2, agreeing
to a meeting to be held May 10 at 3 p in
At about the time of the above exchange of correspondence, or shortly before, Loghry had a
discussion with his foreman, Miller, relative to contract negotiations between UE and Respond-
ent During this discussion Miller said toLoghry, "I don't think there will be another contract
with UE "
Also, about this time, Vice-President Kelly and employee Kenneth Liscomb, who at the time
of the hearing had been in Respondent's employ for approximately 51 years, had a conversa-
tion, which Kelly initiated, wherein the relative advantages and disadvantages of membership
in the said unions were discussed
Liscomb credibly testified 15 that during the aforesaid conversation Kelly stated that "they
didn't want the UE no more," that it was a well-known fact that "they didn't want the UE in
there anyway that Ted Breashears and Arnold Swift were among the agitators in the plant,
that Breashears and Swift had better watch their step" because he was going "to get them"
and they "won't be around very long," that "You know it isn't too long before the contract ex-
pires and I am going to get rid of that union ... by hook or crook," 16 that IBEW was a good
American organization whereas UE was communistic and un-American, especially the latter's
"top brass," that "You don't have the right union in there--the IBEW is a good American
union," and that he "could get enough men in there so that when the election came up ...
they would have enough men to more or less swing it to make sure it swung over to the IBEW."
The first contract negotiation meeting, as differentiated from the previous wage negotiations,
was held at 3 p in on May 10. It lasted approximately one-half hour. UE presented certain
proposed changes in the agreement. Respondent accepted the list of proposals, stating that it
wanted time to study them. Respondent did not submit any proposals Respondent agreed, how-
ever, to submit its proposals prior to or at the next meeting which was scheduled for May 17
UE agreed to submit whatever additional proposals it might have by May 15 UE then requested
Respondent to discuss the proposals which it had submitted but Respondent declined to do so,
stating that it was not prepared to discuss them.
On May 15, UE furnished Respondent with its additional contract proposals Respondent
furnished UE with a list of its proposals No discussion was had, however, with respect to
them.
The next meeting occurred on May 17 and lasted from 3 to 5 p m The parties agreed to
start by discussing both UE's and Respondent's proposals regarding the suggested changes in
the existing contract It was also agreed to pass over for the time being any new proposals
upon which the parties could not quickly reach an agreement for they felt that by so doing they
could quickly arrive at the important points in issue in a discussion regarding the clause
labeled "Agreement," providing for the continuation of the contract in the event of change of
ownership of Respondent, UE stated the clause was not of the utmost importance and, therefore,
no agreement being reached regarding this clause, further discussion thereof was postponed
In the discussion of article I, entitled "Scope," UE stated that it was agreeable to the exclu-
sion of office clericals, but that the factory clericals and watchmen who had been classified
as watchmen-janitors in the existing agreement should be continued in the unit UE agreed that
guards should be excluded With regard to article II, entitled "Recognition," UE stated that
since the employees had voted at a secret election and had expressed their preference for a
union shop, Respondent should agree to include in the contract such a clause 17 Respondent
did not agree and further discussion with respect thereto was postponed
is Kelly placed this conversation as having taken place prior to March 21 He denied making
most of the statements attributed to him by Lrscomb. The latter was a credible witness and
therefore the undersigned finds that Liscomb's version of what was said by him and Kelly to
be substantially in accord with the facts The undersigned further finds that it took place as
testified to by Liscomb; that is, during the latter part of April
16 For the past 2 years all authority to deal with labor organizations representing Respond-
ent's employees was vested in Kelly.
17 The UA election was held on November 27, 1950, at which 79 of the 124 eligible voters
cast secret ballots in favor of a union-security clause contract Respondent proposed that a
clause be inserted under article II reading, "Union membership shall not be required of any
employee as a condition of employment."
PRYNE & COMPANY, INC. 461
With regard to article III, entitled "Discrimination," UE pointed out that, except for Re-
spondent ' s proposal on section 4 of said article, Respondent ' s suggestion was covered in
another clause of the contract Respondent then withdrew its proposal . With regard to the
Respondent's proposal of section 4 of said article, 13 UE stated that that clause was not sub-
mitted in good faith since UE represented the employees and it was not the Respondent's
business to inquire into the Union ' s method of representation of the employees UE urged
further that Respondent might use the clause to pry into UE's internal affairs With regard
to article IV, entitled "Checkoff," UE pointed out that regular union dues had been checked off
pursuant to contract provisions for many years and requested that the checkoff provision be
retained Respondent proposed that no checkoff provision be in the new agreement Respond-
ent's proposal was passed over until a later date The meeting concluded after it had been
agreed that Brant would call Rea to arrange a date for the next meeting
During the month of May, there was an exchange of correspondence between UE and Biddle
Trade Bureau relative to arranging negotiating meetings By letter dated May 21, UE agreed
to meet with Respondent on May 24, the date proposed by Biddle Trade Bureau UE, however,
requested that future bargaining meetings be held more frequently and for longer periods
Biddle Trade Bureau replied on May 22, stating that it felt that more frequent and longer
meetings were impractical and proposed meeting in Pomona at 3 p m once a week to negotiate
for a reaonable length of time and agreed to meet with UE on Thursday, May 31, at 3 p m By
letter, dated May 25, the Union replied to Biddle Trade Bureau's letter of May 22, agreeing
therein to meet with Respondent on May 31 at 3 p m UE stated in its letter that it was agree-
able to meet at night and on Saturdays and Sundays if necessary, and specifically proposed
that at the May 31 meeting the parties recess for dinner and resume negotiations after dinner
On May 24, the parties conferred from 3 to 5 p m UE's proposal regarding section 2 of
article V19 of the existing contract was discussed but no agreement was reached and further
discussion thereon was postponed Respondent then proposed eliminating section 6, article
V. 20 No agreement was reached Respondent, however, agreed to check the possibility of
rewording this section and agreed to discuss it further at a later date Respondent then
proposed that section 7, article V be eliminated 21 No agreement was reached on the proposal
but Respondent agreed to consider rewording this section and further agreed to discuss it at
a later date Regarding section 8 of article V, there was no discussion due to the fact that
Respondent had not submitted a rewording of the section for purposes of clarification. 22 The
parties then discussed article IX, entitled "Ifolidays " Respondent proposed certain changes
in section 3 of said article and UE proposed that the entire article be rewritten Pursuant to
the suggestion of UE, Respondent agreed to rewrite the article and discussion thereof was
postponed until a later date The parties then discussed article X, entitled "Illness " With
reference to section 1 of said article, UE proposed to eliminate the time limit required for
an employee to notify Respondent in case of illness and to substitute therefor "Notify the
Company as soon as practical " 29 No agreement was reached on this proposal and further
discussion was postponed
The parties met again on May 31, and the meeting lasted from 3 to about 6:30 p m Respond-
ent's representatives , despite the fact that Kelly had attended practically all previous meet-
ings, 24 insisted that a complete review of the contract clauses and the various proposals made
by the parties be had , allegedly for the purpose of ascertaining which proposal had been agreed
18 This proposal reads as follows: "The Union agrees to represent fairly, accurately and
impartially all the employees within the bargaining unit, and to abide by the wishes of the
majority. "
i9Regarding payment of double time for work inexcess of 2 hours overtime during a regular
workday.
20 This section dealt with the equal distribution of overtime work among the qualified em-
ployees in the department.
21 This section read: "Any change in the scheduled work day shall be subject to collective
bargaining."
22Respondent proposed that this section be eliminated "subject to clarification
23 The contract then in existence required an employee absent due to illness to notify Re-
spondent of such illness not later than the end of his regular scheduled shift unless unable
to do so for a verified reason.
24Sherman, associate of Biddle Trade Bureau, was the other Respondent representative
present at this meeting . The record indicates that a review of the past negotiations was solely
for Sherman' s benefit.
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon UE's representatives acquiesced in this procedure , after protesting that it was an utter
waste of time to make the review . The parties, upon the completion of the review , agreed that
articles VI, VII, and VIII had received complete accord 25 Although discussion was had with
respect to articles V, XI, XIII, XIV, andXV of the existing contract , no agreement was reached
with respect thereto except that the parties agreed to retain section 3 of article XIV of the
existing contract entitled " Seniority
The next meeting took place on June 7 The parties proceeded to discuss article XVI, en-
titled " Discharges ." Respondent proposed that sections2and3 thereof be completely revised
After a brief discussion of Respondent ' s proposals , UE counterproposed that section 1 remain
as in the contract with the addition of the word " discipline", that sections 2 and 326 remain
as they were, but Respondent ' s proposal on section 3 be added as a new section 5 , and that
section 4 remain as it was in the contract 27
Following UE's counterproposal , there was considerable discussion regarding Respondent's
proposal on section 2 dealing with "Advocacy of the overthrow of the United States Govern-
ment by force or violence " as a cause for discharge The parties discussed this section at
some length There being no agreement , the entire article was postponed for future discussion.
The parties then discussed article XVII , entitled "Wages ," and in the discussion that followed
UE stated it thought a wage increase of 32 cents was justified At Respondent ' s suggestion,
this article was passed over to be taken up again when all cost items were under discussion
After some discussion of article XVIII, entitled "Job Classifications ," the parties agreed
to discuss this article at the next meeting
25 These articles appeared in the then existing contract and neither party had proposed any
changes with respect to them
26 Respondent proposed to change article XVI to read as follows:
Sec. 1 The company shall have the right to discharge or discipline any employee for
just cause.
Sec 2. Just cause for discharge or discipline shall include, but not be limited to in-
competency , inefficiency , dishonesty, advocacy of overthrow of the United States Gov-
ernment by force or violence , refusal to fulfill in a cooperative manner reasonable
instructions of a superior , any wilful or gross negligence , habitual negligence, failure
to comply with established shop rules and any act or actions that seriously interfere with
regular routine of production and operation of the plant
Sec. 3 In the event an employee shallbedischargedor laid off for disciplinary reasons
and he believes he has been unjustly dealt with, his complaint shall be adjusted pursuant to
the method herein provided for the adjustment of grievances . He shall have the right to
present his grievance to the steward before leaving the plant . His complaint must be taken
up with a representative of the Company within two (2 ) working days of such discharge or
lay-off.
If it is decided under the provisions of this agreement that an injustice has been dealt
the employee with regard to his discharge or lay off without any fault on the part of the
employee , then the Company shall reinstate the employee and pay him full compensa-
tion
If it is decided that an injustice has been dealt the employee but that the employee was
not without fault, the Company may be required to reinstate the discharged or laid off
employee with such compensation , if any, as may be agreed upon by the parties settling
such difference.
27 Article XVI of the contract then in force read:
Sec 1. Employees shall be discharged only for just cause
Sec. 2 The Union shall have the right to challenge the sufficiency of cause for dis-
charge of any employee and in such an event, the matter shall be handled in accordance
with the grievance and arbitration procedure established herein
Sec 3. No employee shall be discharged for incompetency or inefficiency without at
least one warning in writing ( with a copy to the Chief Steward) Such warning shall not
be followed by discharge within less than three ( 3) working days Warning notices shall
be considered ineffective after ninety ( 90) days.
Sec. 4 This article shall not be applicable to probationary employees . . The Company
shall have the right to discharge probationary employees for any cause
PRYNE & COMPANY, INC. 463
Toward the close of the meeting , UE again expressed its concern that the parties were only
meeting once a week and suggested that meetings be held at more frequent intervals or for
longer periods so that negotiations could be completed before the termination of the then
existing contract Respondent countered with the statement that the preceding year the parties
had operated for a period of 2 months without a contract while negotiations were in progress
without any change in the friendly relations between management and employees Brant pointed
out that no worker in his right mind wanted to work without a contract He then stated that he
knew of no talkofastrikeuntilhe had read about such a possibility in one of Pryne ' s numerous
letters to the employees Brant further stated that UE intended to make preparations for such
a possibility in the event there was no contract by June 30 The parties then recessed on the
motion of Respondent at 5:30 p in and agreed to meet on June 14 at 3 p m 28
On June 14 the parties again met This meeting lasted from about 3 until about 6.30 p m
Article XIX, concerning which neither partyhadsuggesteda change, was read and agreed upon
by the parties Change of section 6 of article XX, entitled " Leave of Absence ," as proposed
by UE was then discussed Respondent indicated that it would agree in principle with the
proposal but suggested that it be permitted to rewrite the provision All of article XXI, except
section 4 which dealt with the matter of a union bulletin board , was agreed upon Discussion
of section 4 was postponed for a future discussion Article XXII relating to military service
was discussed . The parties agreed in principle and Respondent proposed that it rewrite the
clause to conform to the practice then in effect in the plant Article XXIII, entitled " Grievance
Procedure ," and article XXIV, entitled " Rights of Management ," were discussed but no agree-
ment was reached and discussions thereon were postponed for future meetings Articles XXV
and XXVI, concerning which neither of the parties had made any proposals for change, were
agreed upon. Article XXVII, entitled "General Conditions ," as proposed by Respondent was
then discussed but no agreement was reached At the conclusion of the meeting , UE again
expressed concern over the fact that Respondent had not manifested sufficient seriousness
about negotiating a new contract and suggested that Respondent consider the contract its most
pressing business between that date and June 30, the date of expiration of the contract UE
again asked for more frequent and lengthier meetings The parties agreed to meet on June 19
at 1p.in
On June 19, the parties met from 1 to 5p m At the opening of the meeting , Brant pointed
out that the parties had been over the proposals point by point on a number of occasions, that
a period of a month and a half had gone by since the start of negotiations , and that it was
absolutely necessary to consummate a new contract before the old one expired on June 30
Brant further pointed out that reasonable bargaining called for Respondent to make a proposal
which would permit the consummation of an agreement rather than a discussion of clauses
point by point , as Respondent has been continuously doing In an attempt to achieve an early
contract , LIE made a "package" proposal . Respondent stated that the "package deal" repre-
sented only a slight change in the position of the UE and that, therefore , it could not accept
the proposal Respondent recommended that negotiations continue and that the contract should
be discussed item by item in an effort to arrive at a contract that would be satisfactory to both
parties Brant protested , stating that Respondent ' s attitude did not indicate a desire on its part
to reach an agreement and that some of Respondent ' s proposals bordered on unfair labor
practices Brant then stated that he would contact the Federal Mediation and Conciliation
Service and enlist its aid The parties scheduled the next meeting for June 27 at 1 p. m
The parties met from 1 to 5 p in on June 27. Again Respondent proposed reviewing the
contract from the beginning , clause by clause Brant pointed out that this would be repetitious
and if such method was followed the parties could not possibly complete a contract by June
30. Brant then requested that Respondent make a proposal which would permit the consumma-
tion of an agreement rather than a discussion of clauses point by point . However , Respondent
insisted on going over the contract , clause by clause , which was done The parties then
proceeded with article I of the contract and reviewed the prior negotiations Article I was
discussed and no agreement was reached The parties then discussed the checkoff provision
of article IV. LIE stated that Respondent ' s position regarding this checkoff provision was
unreasonable and that its adamant position with respect to it constituted a major point of
difference in reaching an agreement Respondent responded that under conditions where a
checkoff is the only point at issue it is not considered a bargainable item by the Board and,
further , that from management ' s viewpoint , checking off dues was an expense which Respond-
ent desired to eliminate With regard to theunion- security provision of this article, UE stated
28 All negotiation meetings recessed at Respondent ' s request.
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that its position would be influenced by Respondent's position concerning the balance of the
contract
The parties then proceeded to discuss article V. Respondent withdrew its proposals relating
to sections 6 and 7 of said article. Article IX was passed over at the request of Respondent
A brief discussion ensued regarding article X, entitled"Injuries," but no decision was reached
There was some discussion regarding UE's proposal relative to vacations as expressed in
section 5 of article XIIL Respondent agreed to submit for consideration at a later date a
counterproposal that would prorate vacations in relation to the number of years of service
Some discussion then took place relative to article XIV, at which time UE requested a 5-minute
recess After the recess, Brant proposed that the provision regarding seniority of article
XIV of the existing contract be continued, that the Respondent and UE drop all proposals
except the UE's proposal for 1 additional paid holiday and a 9-cent general wage increase
Respondent then requested a recess for the purpose of discussing the proposal After the
recess, Respondent stated it would not accept the Union's proposal, pointing out that it had
canceled the contract because it felt there was need for changes in some of the items that had
caused friction in the past, that other items needed clarification and, in view of world condi-
tions, changes were necessary in the present contract The next meeting was scheduled for
June 29 at 1 p. m.
On June 29, the parties met from about 1 to 4:30 p. m. The parties proceeded to discuss
articles XIV through XVII, inclusive UE requested that meetings be held that night, the fol-
lowing day, and Sunday, but Respondent refused UE then requested Respondent to extend the
agreement then in effect pending negotiation of a new agreement Respondent refused Brant
then said he desired to continue negotiations, but if no new agreement was reached or the old
UE contract continued UE would call a strike at midnight, July 1
During the recess at the meeting on June 29, a notice was posted by Respondent on the plant
bulletin board informing the employees that Respondent would operate the plant during the
strike
During the week commencing June 25, UE held several meetings of its membership whereat
discussions were had relative to the advisability of strike action On or about June 29, the
membership voted to strike The strike commenced on July 2
Cabana testified that twice during the day of Friday, June 29, Freeman told him about being
concerned regarding the impending strike and inquired whether he had any suggestions about
preventing it, that on each occasion he told Freeman that although he, too, was greatly con-
cerned about the announced strike, he did not know of any feasible solution for preventing it
because the men had voted to strike and hence "it was cut and dried" and "the die was cast",
and that he promised Freeman to contact him in case he thought of any "ideas" or "loop-
hole" to prevent the strike Cabana further testified that that evening the idea came to him
that the strike could be prevented "if the men would come back to work on Monday they could
continue to work during negotiations"; that he was unsuccessful in reaching Freeman on the
telephone that evening in order to convey his thoughts to Freeman because Freeman had no
home telephone, that he telephoned Tabor, Y9 whom he knew lived near Freeman, and asked
Tabor to inform Freeman that he would like to see Freeman because he had "an idea" how
to prevent the strike; that Tabor stated that "a great many of the people didn't want to strike",
that he remarked "that was pretty difficult to believe, in view of the strike vote that had been
taken," and the majority had voted to strike; that Tabor "pointed out the fact that there were
about 30 percent" of the employees who did not care to strike, and that he remained home all
evening waiting for Freeman and Tabor but neither one appeared.
The next morning, June 30, Tabor went to Freeman's home and informed Freeman that
Cabana would like to see him En routeto Cabana's home, Tabor and Freeman noticed Cabana
entering a drugstore located about 2 blocks from the plant and they followed Cabana into the
store
Regarding the conversation which ensued in the drugstore between Freeman, Tabor, and
Cabana, Freeman testified that he asked Cabana, "Do you want to see me? ", that Cabana
replied in the affirmative and then said that everyone would be "better off" if the strike did
not occur, adding, "you know that the UE is the only thing that is standing in the way", that
Cabana then stated he could probably get an agreement between the Company and the men,
without the aid of the UE, and that he replied that he "couldn't see that way" because the
29 As found above, Tabor and Carter came to Cabana's home in December to discuss the
withdrawal from UE.
PRYNE & COMPANY, INC. 465
employees "had made [ their] choice and that is theway we thought we would continue " Free-
man further testified that during the said conversation Cabana also remarked, "Mr Pryne
didn't have anyting against the men in the shop, it was the union he disliked", that Cabana
suggested that the employees enter into an agreement with the Company without UE being a
party thereto, that when he reminded Cabana that Biddle Trade Bureau represented Respond-
ent and , absent the aid of UE, the employees would have no one to represent them, Cabana
replied Respondent would dispense with Biddle Trade Bureau's services if the employees
forsook UE.
Regarding the above-mentioned talk with Freeman and Tabor, Cabana testified that he had
stated that the men should not strike but continue working and allow negotiations for a new
contract to continue, that he also stated that if Pryne did not live up to the statements con-
tained in the letters he previously sent to the employees, then, in that event, he was sure the
employees would unanimously vote to strike, including him and others not in the bargaining
unit, and that Freeman replied that his suggestion was "worth considering" and would inform
his fellow workers about it at the meeting which had been called for that morning
On cross-examination Cabana further testified that during the aforesaid conversation he
"may have" suggested that Freeman see Pryne, that he did not "think" he stated that Pryne
"doesn't have a thing against the men in the shop, that they are good men" but that Pryne
"wouldn't have a thing to do with the union", that he did not "recall" Freeman "exactly"
saying to him, "You want us to give up the union, which protects us, and the Company will
still have the Biddle Trade Bureautell them how to chisel us out of our rights", 30 and that in
response to Freeman's remark, "What you are asking us to do is sell out the Union They
have called for a strike," he replied , "You are putting words in my mouth You can interpret
[ my remarks] any way you want to, but you are working with Mr Pryne If you can live without
wages for the next few weeks, or as long as[ the strike lasts] , that is your business. Me, I
can't. Maybe you are better off than I am."
Upon the entire record in the case, the undersigned is convinced, and finds, Freeman's
version of what transpired during his conversation with Cabana on June 30 to be substantially
in accord with the facts The undersigned further finds that Cabana made the statements which
Freeman attributed to him.
Royalty, testified credibly and without contradiction that about an hour before the employees
were to take the strike vote he was in Cabana's office; that during the conversation that en-
sued therein between him and Cabana, the latter said, "I hope you want your job If you don't
vote 'no', you most likely won't have a job", and that when he replied, "I will do what the
majority of the people want," Cabana retorted, "You are levelheaded and you will vote the
way you should."
On July 1, UE sent Respondent a telegram requesting a meeting on July 2 The telegram
charged Respondent with refusing to bargain in good faith and concluded with the statement
that if Respondent refused to meet and negotiate on July 2, UE would file an unfair labor
practice charge with the Board alleging "refusal to bargain in good faith and other illegal
acts." By letter dated July 2, Rea replied denying the allegations of not bargaining in good
faith and other "illegal acts" but did not set a date fora negotiating meeting By telegram of
July 2, addressed to Respondent, Brant requested a meeting on July 3 On July 3, Pryne in-
formed UE by telegram that all communications for negotiations had to be directed to Rea On
July 4 Brant telegraphed Rea requesting a meeting on July 5, 6, 7, or 8 Not having received a
reply to this telegram , Brant telegraphed Rea on July 5 requesting a meeting on July 6, 7, or
8 On July 5, Respondent sent to each of its employees who had not reported to work since the
commencement of the strike a letter requesting said employees to report to work on July 9,
pointing out that if they did not so report, they might be replaced.
Biddle Trade Bureau, by letter dated July 5, suggested a meeting be held July 11 at the
offices of the Federal Conciliation Service in Los Angeles On July 6, UE telegraphed Rea
acknowledging receipt of his letter of July 5, agreed to the July 11 date suggested by Rea, and
requested a meeting at an earlier date Later that day, July 9, UE telegraphed Rea that it
would meet with him at the conciliator's office on July 11
On July 11 the parties met at the offices of the Federal conciliator from 3.15 to 5 10 p m 31
Respondent had a court reporter present UE objected on the ground that the
30Cabana admitted , however , that Freeman mentioned "The Union represents us, lust as
Biddle Trade Bureau represents Pryne & Company."
31 All subsequent meetings were held at the Los Angeles offices of the Federal Mediation
and Conciliation Service.
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
presence of the reporter was not indicative of good-faith bargaining Respondent insisted that
the reporter remain Ile did so and made a verbatim report of what transpired Hubbard, an
associate of Biddle Trade Bureau representing Respondent together with Rea and Kelly,
opened the meeting by giving a resumeofthe bargaining history up to that point 32 Respondent
then submitted two additional proposals, one waiving the right of either party to demand bar-
gaining during the life of the contract on any point whether raised in the contract or not, and
the other providing that in the event of a violation of the contract by UE, that organization
shall be liable for all monetary damages suffered by Respondent, including loss of profits
Rea, for Respondent, then asked if UE would renew the contract without any wage or vacation
change . UE inquired if that constituted a firm offer When Respondent did not reply, the matter
was dropped
UE then proposed the old contract plus a 9-cent an hour general wage increase, subject to
Wage Stabilization approval, without any additional paid holidays Respondent rejected the
proposal UE then inquired if Respondent had any suggestions and Respondent replied, "We
believe the proposals that we have made are fair and just and that we should settle this thing
on the basis of the agreements already reached plus the Company proposals that have been
made " UE did not accept Respondent's proposal and proposed the old agreement, plus all
changes already agreed on, plus a 9-cent an hour increase subject to Wage Stabilization Board
approval Respondent rejected the proposal and raised the question concerning the wage re-
opening clause of the 1950 contract UE offered to waive the wage reopening clause Respond-
ent proposed the old contract , plus all modifications already agreed on , plus all other changes
which had been proposed by Respondent , and with no reopening clause for 1 year UE rejected
this proposal Rea, after some further discussion , requested that the meeting conclude, adding
that there was no "rush " in connection with the setting of the next negotiating meeting He
also announced that before meeting again he desired to obtain the typewritten minutes of the
meeting
The next meeting took place on July 18 At the opening thereof UE pointed out that Respond-
ent had stated that it wanted to study the transcript of the previous meeting in order to be able
to determine what its officials ' attitude would be toward UE' s proposals and then inquired if
Respondent had any proposal to settle the strike Respondent at that time stated, among other
things , that it was particularly interested in theUE's responsibility for damages due to viola-
tion of a contract , if one was entered into After some discussion of the matter Respondent
proposed that UE post a $50,000 performance bond Respondent also stated that it did not have
a "package" proposal to make but desired to negotiate on the contract point by point Respond-
ent then enumerated various points upon which the parties had not reached agreement After
discussing the points still not in agreement , UE urged that the parties continue the meeting
that evening Respondent refused UE then stated that it desired to meet more often than once
a week Hubbard pointed out that while Respondent' s negotiators had authority within limits to
bargain and could make most of the decisions "at the same time it is well to check with your
principals as you people do " Hubbard further stated that "as soon as we have a chance to
look over the transcript then we will set a date for next week " The meeting concluded with
the understanding that Respondent would notify the conciliator within a few days so he could
arrange a meeting for the following week
On July 25 the parties met from about 3 40 to 5:45p in Respondent opened the meeting by
stating that it did not have a court reporter present because of UE's objection Respondent
then proposed starting at the beginning of the contract to discuss the contract point by point or
to discuss the points of difference point by point UE objected and suggested a caucus with the
conciliator for the purpose of explaining the situation to him After the UE caucus with the
conciliator, the conciliator caucused with the Respondent After the recess, in response to a
question by UE for a proposal from Respondent to settle the dispute, Respondent replied, "Tile
Company proposes that there be no wage increases, that there be no wage reopening, that
there be no checkoff, and that the Union should offer counterproposals to the Company's
proposals " Respondent then repeated that it had made no "package" proposal and desired
to negotiate on a contract, clause by clause
The next meeting occurred on August 6 and lasted from about 4 to 4 50 p m The meeting
had been set for 3 p in but representatives of Respondent did not appear until about 4 p in
Respondent offered 14 proposals UE stated that it agreed to accept Respondent's proposals
Nos 1, 3, 7, and 11, but it could not agree to Respondent's proposals 2, 4, 5, 6, 10, 12, and
2 This resume was made over UE's strenuous objection
PRYNE & COMPANY, INC. 467
13, 33 that with regard to Respondent's proposals Nos 12 and 13 it had counterproposals which
it submitted at the time, that with regard to Respondent's proposals 8, 9, and 14, it was in
general agreement subject to further discussion. UE then requested that its counterproposals
be discussed Rea, for the Respondent, stated that he was not going to discuss them that day
He said, "We are leaving right now " UE again asked Respondent to stay and discuss its
counterproposals, but Respondent's representatives walked out of the meeting at approximately
4.50 p m , without discussing the proposals which had been submitted by UE
On July 23, Respondent instituted an action in the Superior Court of the State of California
for the purpose of enjoining the commission by UE adherents of acts of violence and mass
picketing On that date the court issued an order to show cause why the relief should not be
granted and restraining all persons from engaging in any unlawful picketing. On the return
date, August 1, the court continued in effect the restraining order and adjourned the hearing
on the petition until August 7, with instructions that UE and Respondent meet and negotiate
for the purpose of settling their difficulties. On August 7, the court again continued the hear-
ing on the petition for injunction until August 13, and again instructed the parties to continue
negotiations
About 2 or 3 weeks after the commencement of the strike, Royalty met Kelly He inquired
of Kelly about "the chances" of going back to work, Kelly replied that if Royalty inquired at
the plant's employment office for work and if there was a vacancy Royalty would be given
work, Royalty then asked Kelly why Respondent would not sign a contract with UE, to which
inquiry Kelly replied, to quote Royalty's credited testimony, "he had dealings before with the
UE on the East Coast and they had nothing good for the Company "
On August 8, the parties met from about 9 25 a m until noon They discussed the proposals
and counterproposals made by both Respondent and UE at the preceding meeting without any
agreement being reached UE stated that it was willing to continue meeting that afternoon or
that night or the following day Respondent refused to do so. It agreed, however, to meet on
August 10 UE then asked Respondent to commit itself for a definite length of time for that
meeting, but the Respondent refused to do so
33 Proposal # 1. All agreed to proposals shall be incorporated in the new agreement.
# 2 No wage increases.
# 3. Respondent agrees to plant clericals being included in bargaining unit.
# 4 Open shop- -no checkoff
#5 All employees hired after commencement of strike shall have full seniority and em-
ployment rights. All individuals who did not work regularly between commencement of
strike and the signing of the agreement, if Respondent decided that those individuals had
been replaced, then they have no seniority rights
#6. Neither UE nor its members shall harass, intimidate, or coerce any employees by
means of name-calling, boycott, silent treatment, etc. If, in Respondent's opinion, any
member of UE engages in such conduct, that individual may be discharged forthwith. If
any representative, agent, or any individual acting on behalf of UE engaged in such con-
duct, Respondent may then rescind the entire agreement.
# 7. Respondent withdraws its proposal regarding steward's seniority status
#8. Holiday clause of the old contract to be retained.
# 9. Seniority clause of old contract to be retained
# 10. Respondent reserves to itself the sole right to decide if an employee is incompe-
tent to perform his assigned tasks. Respondent may also discharge or otherwise discipline
an employee who advocates the overthrow of the United States Government by force or
violence.
#11. Bulletin board clause of old contract to be retained.
#12. Contract to provide for ano-strike clause. If the provision previously proposed is
not acceptable to UE then UE is to submit a clause spelling out what recourse Respondent
has against UE "in event of a wildcat or other type of coercive interference with the
business of the Company in violation of the terms of the agreement "
f13. Withdrawal for the posting by UE of a performance bond. In place of its previous
proposal, Respondent proposed that the agreement's "no-strike clause be so worded as
to spell out the Company's rights in the event of a violation of the agreement" plus the
remaining portions of Respondent's former proposed conditions clause including "the
waiver clause."
# 14 Contract to run for one year without a reopening clause.
468 DECISIONS OF NATIONAL LABOR RELATIONS HOARD
The August 10 meeting lasted from about 9 a m until noon. The parties discussed and
reached agreement on the no-strike clause and some sections of the discharge clause UE
accepted Respondent's proposals of August 6, relative to holidays and seniority. UE then made
a proposal to end the strike on the basis that all strikers return to their jobs with full senior-
ity; that the old contract be reinstated plus modifications already agreed upon , and that the
remaining issues, including wages, be submitted to arbitration. Respondent rejected this
proposal. Shortly before noon, Respondent requested the adjournment of the meeting The
Union requested that the meeting reconvene that afternoon Both Hubbard and Kelly, repre-
senting Respondent, stated that they had appointments that afternoon and could not meet with
UE. UE then suggested a meeting for that night or for the following day (Saturday) or Sunday
or Monday Respondent's representatives replied that they could not meet before the following
Tuesday. The parties set the meeting for August 14 at 9 a m
On August 13, the continued date of the hearing on the petition for injunction, Judge Gates
stated that he was not satisfied with the frequency of the negotiations or the progress made,
and at his direction a stipulation was entered into by the parties continuing in effect the
temporary restraining order, until August 29 The stipulation stated that the parties would
continue negotiations and meet not less than 3 days a week for at least 5 hours each day until
such time as an agreement was reached or until the Federal conciliator should advise the
parties that further meetings would be fruitless
The August 14 meeting lasted from about 9 a in. until noon The parties discussed Respond-
ent's proposals of August 6, concerning Respondent's right to discharge and management pre-
rogative to set job standards as well as several other points No agreement was reached
on any point, although to severalUE proposals Respondent's representatives replied, "We will
consider it and let you know," adding that they could not give an answer to any proposal until
they checked with officials of Respondent Respondent refused to meet with UE that afternoon
or evening, although requested The parties agreed to meet on August 16 at 1 p in and on
August 17 at 9 a in
The next meeting occurred on August 16 and lasted from about 1 to 6 p in Kelly was
not present at this meeting due to the fact that he had taken a business trip However, Eckhardt,
Respondent's personnel director, was present in his place and stead. The principal matters
discussed were the proposal of Respondent to include as a cause for discharge "the advocacy
clause" and the proposal, giving Respondent the unilateral right to put in effect an incentive
plan In the discussion which ensued regarding the incentive plan, Respondent maintained that
it had the authority to install the incentive plan without the right of negotiation or UE's right
to question the plan UE requested Respondent to withdraw its proposal because it was not a
collective-bargaining arrangement since it provided for a unilateral determination for the
establishment of an incentive plan without negotiation Respondent replied that it would not
withdraw the proposal UE then stated that the Respondent had been "hanging on to this posi-
tion since May 15th " Hubbard, for the Respondent, replied, "We might hang on io this posi-
tion for ten years and give it up That would not be insisting on it " The parties then dis-
cussed the Respondent's proposal that it have the unilateral right to establish work standards
There was no agreement relative to this proposal and the meeting concluded
The next meeting took place on August 17 and lasted from about 9 a m. until 3 p m After a
lengthy caucus at the inception of the meeting, Respondent asked for UE's position on its
sick-leave and job-classification proposals UE replied that it was prepared to withdraw those
proposals if agreements were reached on other points, but that as long as Respondent insisted
on certain other proposals it wanted to retain these points as bargaining proposals Wage rates
were then discussed and Respondent insisted that it could not offer any wage increase
Although Hubbard had announced at the previous meeting that he had authority to alter Re-
spondent's position, at this meeting he stated that he had no such authority and, therefore, no
definite answer to UE's counterproposal on the question of discriminatory treatment of em-
ployees could be given UE then proposed a "pledge of harmonious relations" clause Hubbard
replied that such a clause might cover the matter but made no definite commitment UE then
made a counterproposal regarding the grievance procedure After a lengthy caucus, Respond-
ent replied that the proposal was logical and that Respondent would give its answer with respect
to it at the next meeting UE pressed for an immediate answer and suggested that Hubbard
telephone Respondent's officials in an effort to settle the matter Hubbard refused Hubbard
then stated that he did not have any other proposals to make at that time but would be prepared
to make some proposals at the next meeting
On August 21 the parties met from about 9:35 a m until 3 30 p in Although the meeting was
scheduled to start at 9 a in , the parties did not get started until 9:35 due to Hubbard's late
arrival at that time. Eckhardt did not appear until 9:50 a in. When Eckhardt appeared he and
PRYNE & COMPANY, INC 469
Hubbard caucused from about 9 50 until about 10:25 a, m. The conciliator had to leave at 11 30
a m , at which time UE proposed that Respondent and it remain in session and attempt to make
some progress towards settling the dispute Hubbard replied that he was leaving and left at
11.35 a. in There was relatively little discussion at this meeting The parties reconvened at
1 45 p m There was some discussion of proposal No 6 of the Respondent's proposals of
August 6 31 UE proposed a stipulation to the effect that there would be no discrimination
against any returning striking employee Hubbard stated that none of the employees had been
notified that they had been terminated; that he did not know Respondent's position with regard
to reinstating employees who went on strike; that he did not know if anyone would be considered
replaced, and that Respondent would determine its position at the end of the strike Hubbard
was then asked if he had any proposals to make and he replied in the negative The meeting
then concluded
The next meeting took place on August 23 and lasted from about 1 45 to 5.55 p m At the
previous meeting there had been a discussion relative to the checkoff and Hubbard had said
that he would obtain information on the cost of the checkoff The conciliator stated to Hubbard,
"You were going to check on the Company's position " Hubbard caucused with Eckhardt Upon
returning Hubbard stated that he had been using the time to check with Respondent as to its
position Hubbard specified six steps which were necessitated by the checking off of dues. He
stated that he did not know the cost involved The parties then discussed the "advocacy"
clause and "incompetency" clause of the discharge article, without any change in position
Employees Freeman and Swift of UE's negotiating committee asked why only half of the vaca-
tion payments had been paid the strikers by Respondent Hubbard replied that he did not know
but that he would advise them the following day Respondent's representatives caucused at
4-30 p. m and returned to the meeting at 5.30 p m , stating that they had no further proposals
to make
On August 24 the parties conferred from about 1:25 to 5:40 p m Respondent was represented
at this meeting by Sherman and Stout, associated with Biddle Trade Bureau, and Eckhardt,
none of whom was completely familiar with the state of negotiations up to that time Sherman
had not been at any conference negotiation for the preceding 3 months Stout had been at only
1 previous meeting and Eckhardt had been at only 2 previous meetings UE asked if Respond-
ent had any proposals to make for settling the strike other than those which had previously
been "made. Sherman replied, "Suppose we answer that after we recapitulate the points agreed
to " Brant pointed out that the parties had gone over those many, many times Sherman stated
that Respondent's representatives were not familiar with the status of the negotiations The
parties then proceded to recapitulate the points in disagreement to reply to UE's question
asked at the beginning of the meeting about settling the strike, Sherman stated that Respondent
had no other proposal to make except to reiterate and discuss the parties' previous positions
At the request of Respondent, the parties recessed from 3 to 3:50 p in Upon reconvening, UE
asked if Respondent would agree to a modified or progressive union-shop clause, to which
Sherman replied, "We will consider " UE then asked if Respondent would agree to a checkoff
if UE dropped its union-shop proposal, to which Sherman replied, "We will consider." Re-
spondent was then asked if it would agree to a modified union shop if UE dropped its demand
for a checkoff, to which Sherman replied that Respondent would consider, adding that he was
not prepared to state Respondent's position. Freeman, a member of the negotiating committee,
then asked why Respondent had only paid the strikers half of the vacation pay due them.
Sherman replied that Respondent did not know whowas coming back to work and, besides, Re-
spondent only paid for vacations onthebasis of 6 months' service UE then pointed out that full
payment was due to all people who had completed 1 year of service Sherman asked for UE's
position on the waiver and termination clauses UE replied that it could not agree to these
clauses until they knew what was going to be in the contract, that if the contract terms were
satisfactory UE might agree to those proposals. Respondent recessed from 4:38 until 5 p in.
Upon resuming negotiations, UE proposed that all provisions theretofore agreed upon be
placed in effect; that the provisions of the 1950 agreement, except as modified, be placed
in effect, that all strikers be reinstated with full seniority rights, that the parties submit to
arbitration all issues remaining in dispute Sherman replied that he could not give an answer
without study and without consultation with his principals When UE proposed relinquishing its
proposal for a union shop if Respondent agreed to UE's for a checkoff, Sherman took the posi-
tion that he would study the bargaining values involved, adding that until that was determined
no decision would be made
S4Regardmg harassment, intimidation, and coercion of employees by UE or its members.
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 27, the parties conferred from about 9:36 a m until about noon The meeting was
scheduled to start at 9 a in Respondent ' s representatives , however , did not appear until ap-
proximately 9:36. There was some discussion of the matter of arbitration as proposed by UE
at the preceding meeting. Respondent rejected this proposal At about 9 52 Hubbard received
a phone call A few minutes later he returned and requested that the Respondent's representa-
tives caucus. At about 10:30 Respondent's representatives returned to the meeting and Hub-
bard announced that he had been advised that at the State court hearing relative to the petition
for injunction UE's counsel had requested and obtained a continuance; that Respondent had
agreed to the continuance provided that the stipulation of August 13 executed by the parties
was canceled , that since Respondent was now under no compulsion to continue the scheduled
meetings after August 29, he was canceling the meetings scheduled for August 30 and 31, and
that he would continue the present meeting only until noon. Hubbard refused to discuss the
date for the next meeting , stating that he would communicate with the conciliator regarding it
The parties then discussed the duration of contract and reopening clause without reaching
agreement They also discussed wages, without reaching agreement The proposal regarding
dues checkoff was also discussed Since Respondent did not have the figures representing the
cost of the dues checkoff at the meeting , although at several previous meetings it had agreed
to make such figures available toUE , noagreement was reached with respect to it The parties
then agreed to draft those matters which the parties had agreed to in principle . Respondent's
representatives caucused at 10 : 57 and returned to the meeting at 11 20 The meeting ended at
about noon without agreement being reached on any issue
The next meeting occurred on September 20 and lasted from about 1 : 30 to 2 : 30p m UE
proposed that the parties sign the old contract plus changes already agreed upon, plus full
reinstatement of all employees on strike without discrimination No agreement was reached
On October 2 UE called off the strike.
On October 24 the parties conferred forthelast time. UE stated that Respondent's proposals
regarding sections 1, 4, 5, 6, and 7 of article 27, entitled "General Conditions," a were un-
$ These proposals were submitted by Respondent on May 15 The proposed provisions never
appeared in any previous contracts between the parties , and read as follows:
Section I. The Company may require a non-Communist affidavit from any individual or
individuals claiming to represent the Union in any capacity before recognizing such in-
dividual as a representative of the Union The Company may refuse to confer, meet with,
or bargain with any such person or persons who decline to furnish such affidavit or affi-
davits. Such affidavit shall affirm that the individual is not a member of the Communist
party or affiliated with such party and that he does not believe in, and is not a member of,
or supports any organization that believes in or teaches the overthrow of the United States
Government by force or by any illegal or unconstitutional methods.
Section II. All provisions of this agreement shall be subject to, and superseded by the
laws, rules, regulations and orders which may be imposed by the Government of the United
States and the State of California
Section III Shop rules, as required by the Company, shall be established solely by the
Company with the understanding that they shall not violate any of the provisions of this
agreement.
Section IV. Oneofthebasic purposes of this agreement is to obtain through cooperation
between the parties the greatest possible individual and yearly production, and the Union
agrees that it will not, directly or indirectly, oppose or interfere with the legitimate and
reasonable efforts of the Company to maintain and improve the skill, efficiency, ability
and production of the worker, the quality of its products or the installation of improved
methods and facilities of production This also includes the right to establish modern
plans of wage administration consisting of job evaluation and an incentive plan based on
extra earnings for above-standard production arising from increased effort on the part
of the employees, the right to grant merit increases and also the right to distribute a
bonus, annual or otherwise, to such employees and in such manner as the Company may
deem fit
Section V. The Union agrees not to use or issue, or permit representatives , agents, or
members to use or issue any scurrilous statements or to make any false accusations con-
cerning the Company, its officers or employees in any official papers, handbills, news-
papers or other literature
PRYNE & COMPANY, INC. 471
reasonable and illegal demands Respondent replied that it did not insist on any of the men-
tioned clauses as a condition to signing an agreement, but made offer to withdraw any of the
proposed sections. UE proposed settling the dispute on a basis of placing in effect all agreed
upon clauses, a wage increase of 9 cents per hour, checkoff and illness clauses as they appear
in the old contract, and a wage reopening clause on 60 days' notice, plus the remainder of
the 1950 contract UE then stated the clauses which had been agreed upon up to that point 36
According to Kelly's notes which he made at the meeting , that with respect to article 27,
Respondent 7 proposed that if section 1 thereof was found to be an illegal request then, in that
event, that section would be withdrawn, that Respondent would agree to withdraw from section
4, except the first sentence , that section 5 was to be retained but a section similar thereto
was to be included to protect UE against any scurrilous attacks, etc , that section 6 remain
as proposed; and that section 7 remain as proposed except that before " enforce" the word
"reasonable" may be inserted. Kelly's notes further reveal that Respondent also agreed "to
place in effect, once an entire agreement is executed" the clauses heretofore agreed upon,
that Respondent rejected all demands for a wage increase maintaining that its rates were
"equal to or as high, if not higher, than the same skills in our industry and area", that Re-
spondent rejected the checkoff demand, that Respondent agreed to a 1-year contract if it con-
tained a "no-wage re-opening" clause, that Respondent ' s proposed discharge clause be in-
corporated into the agreement, and that section 5 and 6 of article 27 must be included in the
agreement
UE's representatives 38 caucused , and upon their return proposed that the parties initial
and put into effect immediately all clauses agreed upon and set aside more time to negotiate
with respect to the balance Respondent replied that the proposals and concessions were made
subject to an entire agreement being reached UE offered to meet with Respondent the
following morning or afternoon Rea replied that he would consider when it could meet again
He and Kelly then left the meeting. 39
Section VI The Union recognizes that the Company has the right to present grievances
on matters relating to the Union's administration of this contract, on the conduct of the
Union's members when acting in the name of the Union in relationships with the Company
and its accredited representatives, on the public relations involved in the vilification of
the Company and/or its officers in printed material and/or oral statements by union
members, etc
Section VII The right of the Company to establish and determine and to maintain and
enforce standards of production is fully recognized. Continued failure of an employee to
produce on the basis of established standards will be considered cause for discipline,
including discharge, unless the failure is due to causes beyond his control The Company
shall not be required to retain in its employ any employee who refuses to meet estab-
lished standards or who engages in any attempt or participates in any plan to control or
limit the amount or speed of production
36They were
Article I, which sets forth the categories of the persons covered by the agreement
Section 3 of article III, being UE's pledge not to intimidate or coerce Respondent's
employees or to solicit members on company time
Article XI, dealing with pay to employees injured on job, etc
Article XIV, dealing with seniority
Sections 1 and 5 of article XVI, dealing with discharges for cause
Section 2 of article XVII, rates of pay
Section 6 of article XX, dealing with leaves of absence
Article XXII, dealing with military service.
Sections 2 and 6 of article XXIII, dealing with grievances, arbitration, and no - strike or
lockout
Sections 2 and 3 of article XXVII All provisions of agreement to be subject to the laws
of Federal and State Governments and Respondent may establish, without prior consulta-
tion with UE, all shop rules
xr Kelly and Rea were the only Respondent representatives present at the meeting
38Being Brant and Field Representative Louis Torre.
39 The meeting started at about 11 a m and concluded at approximately 12:15 p m
?91555 0 - 54 - 31
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With the abandonment of the strike on October 2, many, if not all, of the strikers applied
for reinstatement They were interviewed by Personnel Director Eckhardt who stated that
the sudden conclusion of the strike caught him by surprise and hence he was not able to then
advise the returning employees whether their jobs had been filled by replacements or not
Eckhardt, however, informed those seeking reinstatement that he would advise them in the
near future about the situation Commencing the following day or the day after, Respondent
started recalling the strikers for whom it had jobs available Some of the strikers were
placed on jobs different from those they had previous to the strike and others were placed on
different shifts Some strikers accepted their new assignments and others did not
At the hearing herein, the parties stipulated that 1240 of the 1341 persons named in the
second amended complaint, as amended, were reinstated after the abandonment of the strike
and that none of them was given the job which he held immediately prior to the strike.
However, the record shows, and the undersigned finds, that after a short period of time,
some of the said 12 were returned to the jobs they held immediately prior to the strike The
record also shows that others were given comparable jobs on the night shift and earned 10
cents per hour more than they had received before the strike because of the 10 cents per
hour differential in pay given to night-shift employees.
Under date of November 2, IBEW wrote Respondent that it represented the majority of
Respondent's production and maintenance employees, demanded recognition as the sole and
exclusive bargaining representative for those employees, and requested an appointment to
"discuss the matter."42
Under date of November 9, UE wrote Rea requesting a meeting for the purpose of negotiat-
ing the issues still in dispute "so that we may reach a complete agreement." The letter
concluded with a statement that UE was ready "to meet with you at any time and for as long
as necessary in order to negotiate an agreement."
Under date of November 14, Rea acknowledged receipt of UE's letter Rea's letter con-
cluded as follows-
For a long period of time, and again as late as November 2, 1951, the International
Brotherhood of Electrical Workers, A. F of L , have claimed that they represent the
great majority of my clients production and maintenance employees, including shipping,
receiving, warehousing, and other hourly paid employees. They not only claim they
represent said people, but that they have a membership of a great majority in the
categories aforesaid mentioned.
Because there is a valid question as to which union, if any, represents the majority
of the employees, we deem it inadvisable to meet with you as requested
On the same day, November 14, Rea wrote IBEW, in part , as follows:
My client cannot, on the basis of an alleged claim of representation, accept said
claim as being valid and thereupon recognize the claiming union as the bargaining agent
for its employees You did not indicate your willingness to proceed with this matter
by way of the National Labor Relations Board and neither did you offer any proof of
said representation other than the claim, itself, made in your communication.
Accordingly, my client declines to recognize your Union as the collective bargaining
agent, pursuant to your request 43
By letter, dated November 19, IBEW wrote Rea that it had in its possession signed member-
ship cards and offered to prove to Rea that the majority of Pryne's employees are dues-
40 Namely, Joseph Cardoza, Clarence Hughey, Bernardino Flores, George E. Freeman (named
in complaint as George Fraeman), Edward R. Wyss (named in complaint as E. Robert Wyss,
Jr.), Warren C. Busse (named in complaint as Warren Busse), Bill Everett Bozeman (named
in complaint as Bill Bogeman), John O. Campbell, Delmar F. Shanks, Sam Grizanti, Floyd
Downs, and Joe Hensley
4i No stipulation was entered into witji respect to Henry C. Braden
42 Respondent posted a copy of this letter upon the plant bulletin board on or about November
6.
43 On or about November 15, Respondent posted a copy of this letter upon its bulletin board
PRYNE & COMPANY, INC 473
paying members of IBEW, that if Respondent bargained with any other union, IBEW would
strike Respondent's plant, that because of the recent strike it was reluctant to disclose to
Respondent the membership cards but offered to submit the cards to a neutral arbitrator to
be appointed by the presiding judge of the Superior Court of the State of California provided
Respondent agreed that if said arbitrator found that the majority of Respondent's production
and maintenance employees were dues-paying members of IBEW, Respondent would negotiate
a collective-bargaining contract covering those employees, and that "if such an agreement"
was not acceptable to Respondent, IBEW would "undertake Economic Action to enforce" its
demands
On November 30, IBEW submitted a proposal entitled "Arbitration Submission," as well
as other documents, to Respondent Respondent and IBEW executed the submission agreement
on December 5, and it was submitted to court shortly thereafter The arbitrator appointed
by the court on December 10 submitted his award on December 2G, finding that IBEW repre-
sented the majority of Respondent's employees Upon the unopposed motion of IBEW, the
award was confirmed by the court on January 25, 1952
On February 4, 1952, IBEW demanded a meeting with Respondent for purpose of collective
bargaining Two days later Respondent wrote IBEW it would meet with .is representatives
"at your earliest convenience for the purpose of complying with the terms of [the court]"
order " On the same day, February 6, Respondent posted a notice on the bulletin board
stating that it was meeting with IBEW pursuant to court order
On February 7, Louis Torre, field representative of the Union, went to the plant and had
a conversation with Kelly Torre informed Kelly that he understood that some employees
had grievances which he desired to investigate Kelly refused to permit Torre to enter the
plant, stated that Respondent did not recognize UE and asked Torre to submit the grievances
in writing and present them through Respondent's labor relations consultants, the Biddle
Trade Bureau Torre replied that he had to investigate the grievances before he could put
them in written form and that in order to do so he had to go into the plant Kelly again refused
Torre permission to enter the plant
The following day, February 8, Respondent and IBEW representatives conferred Thereat
IBEW requested certain data which Respondent supplied within a week or 10 days.
Concluding Findings
The Board and the courts have been uniformly in accord wih the doctrine that it is the
duty of an employer to enter into discussions with respect to collective bargaining "with an
open and fair mind, and a sincere purpose to find a basis of agreement touching wages and
hours and conditions of employment "44 Respondent's conduct in this case fell far short of
this standard
The entire record in this case indisputably demonstrates a regrettable attitude of Respondent
toward the Act Respondent failed utterly, among other things which will be discussed below,
to discharge its statutory duty to bargain collectively with UE, as the representative of the
,majority of its employees in the appropriate unit, in good faith It is clear that Respondent at
no time during its prolonged negotiations entertained any intention of entering into an agree-
ment with UE The fact that Respondent entered into the negotiations with a mind "hermet-
ically sealed against even the thought of entering into an agreement" 45 with UE is evidenced,
in part, by the language used in its letter of March 16, wherein Respondent notified UE of its
election to terminate the 1950 contract at its termination date,45 for Rea indicated therein,
in clear and unmistakable terms, that Respondent had no intention of entering into any further
contractual relations with LIE, for he stated:
Pryne & Co for a considerable period of time has truly and honestly questioned
[the] motives and desires on the part of the professional leadership of the U E Serious
44Globe Cotton Mills v. N L R.B., 103 F 2d 91, 94 (C. A 5). See also N L.R B v Whittier
Mills Co., 111 F 2d 474(C A 5); N L R B v Reed & Prince Mfg. Co, 118 F. 2d 874 (C k. 1);
N L.R B v. Athens Mfg Co., 161 F 2d 8 (C A 5).
45N L.R B. v Griswold Mfg. Co , 106 F 2d 713, 723 (C A. 3)
46 This letter was sent to UE about 3 1/2 months before the contract was to expire and during
negotiations looking toward a readjustment upwards of the wage scale contained in said con-
tract.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
doubt has been raised in the minds of the owners of Pryne & Co as to whether the
leadership of the U E is genuinely interested in its Union members, the Company, the
community and the country as a whole
because there is serious doubt in the minds of [the] owners of Pryne & Co as to
the motives and objectives on the part of the leadership of the U. E as afore indicated,
and because of various occurrences, incidents, work stoppages, etc , having taken place
under the leadership of the U E , the Company believes that it is wise and in fact proper
to terminate said existing collective bargaining agreement It is deemed necessary by
Pryne & Co that before any further collective bargaining agreement is executed such
collective bargaining must necessarily provide adequate safeguards to the Company that
uninterrupted production can prevail and that the U E will in no way attempt to interfere
with, limit or otherwise obstruct production or interfere with harmonious relationship
by and between the Company and its employees
The demand that the agreement provide for "adequate safeguards to the Company that
uninterrupted production " will prevail before any further collective - bargaining contract be
entered into with UE, comes with poor grace when consideration is given to the fact that each
agreement Respondent had with UE covering a period of 11 years immediately preceding the
aforesaid termination letter , stated, with the exception of the 1947 and 1948 agreements,
"there shall be no stoppage or slow down of work nor strike so long as this agreement
is in force " 47 coupled with the fact that during the said 11 years of continuous contractual
relationship between Respondent and UE there had been no strike among Respondent's
employees and that, so far as this record discloses , UE lived up to each and every other
provision of the said agreements Furthermore , the printed copies of the 1950 contract which
were handed to the employees by Respondent contained this gratuitous statement over the
signature of Pryne
The relationship between the employees and the management of this company has been
most amicable in the past it is our earnest hope that this spirit of fine cooperation will
continue in the future, .. .
Further evidence that Respondent lacked any intention of entering into discussions with UE
with an open and fair mind, and with a sincere purpose to find a basis of agreement, is Rea's
remark to Lambert, a member of the UE negotiating committee, on March 21, the day
Respondent advised UE and later informed the employees that it was granting a 4-cent
general wage increase whether UE agreed to it or not, and 1 days after Rea had sent his
termination letter to UE, "I dont't think we will have to worry much about the UE after this
[present] contract expires anyway," and Kelly's remark to Liscomb in April, prior to the
commencement of the negotiations for a new contract, "You know it isn't too long before the
contract [with UE] expires and I am going to get rid of that union by hook or crook "
Such remarks, made at a time shortly after Respondent had notified its employees of its
election to terminate the existing contract and when LIE was seeking to arrange a time for
negotiating a new contract , plainly are the antithesis of an intention to comply with the obli-
gations imposed by the Act to enter into discussions with a sincere purpose to find a basis
of agreement
Further manifesting Respondent's lack of good faith in its dealings with UE were the
following harassing proposals , among others , of Respondent:
(1) The Company may require a non-Communist affidavit from any individual or
individuals claiming to represent the Union in any capacity before recognizing such
individual as a representative of the Union The Company may refuse to confer, meet
with, or bargain with any such person or persons who decline to furnish such affidavit
or affidavits Such affidavit shall affirm that the individual is not a member of the
Communist party or affiliated with such party and that lie does not believe in, and is
47 This wording appeared in the contracts from 1940 through 1946 The 1949 and 1950 agree-
ments stated, ". , there shall be no general or individual strike, lockout , walkout, shop
strike, slowdown or shop stoppage "
PRYNE & COMPANY, INC 475
not a member of, or supports any organization that believes in or teaches the overthrow
of the United States Government by force or by any illegal or unconstitutional methods 4$
(2) posting of a performance bond, 49 and (3) reserving to Respondent the right to unilaterally
establish an incentive pay plan 50
Also illustrative of the inescapable conclusion that Respondent was giving, as the court
said in N L R B v Athens Mfg Co , supra, UE "a run around while purporting to meet with
the Union for purposes of collective bargaining" are Pryne's statements to Treise, "I will
never sign a contract again with the UE," Foreman Miller's statements to Loghry, shortly
prior to the commencement of negotiations, that there will not be another contract between
Respondent and UE, and Cabana's remark to Freeman 2 days before the strike, "You know
that the UE is the only thing that is standing in the way" of arriving at a collective- bargaining
contract because "Mr Pryne didn't have anything against the men in the shop, it was the
union he disliked "
Upon the entire record in the case, the undersigned finds that on May 17, 1951, 51 and at
all times thereafter, Respondent refused to bargain collectively with UE as the exclusive
statutory representative of its employees in an appropriate unit with respect to grievances,
4$ Such a proposal is manifestly violative of the Act See Standard Generator Service Com-
pany of Missouri, Inc , 90 NLRB 790 The proposal was submitted on May 15, and it was not
until the last negotiating meeting, held on October 24, that Respondent declared that it would
withdraw the proposal However, Respondent conditioned its offer to withdraw it only if the
proposal was found to be illegal Furthermore , the undersigned is convinced , and finds, that
Respondent ' s demand that the individuals claiming to represent UE submit to Respondent af-
fidavits attesting to their loyalty to the United States before Respondent would meet and
bargain with UE was not made ingoodfaith but was advanced solely for the prupose of harass-
ing and annoying the statutory representatives of the employees As the Board found in the
Standard Generator case, the certified union had complied with all the congressional require-
ments regarding the execution and filing of the noncommunistic affidavits and therefore an
employer is estoppel from demanding any further evidence of like nature before it would
recognize and deal with the union. Moreover , on numerous occasions the Board and the courts
have held that an employer violates Section 8 (a) (5) of the Act by refusing to bargain with the
duly selected representative of his employees on the ground that one of the persons chosen to
represent the employees was not acceptable or was obnoxious to the employer The Oliver
Corporation, 74 NLRB 483, Hoppes Manufacturing Company, 74 NLRB 853 Hancock Brick &
Tile Company, 44 NLRB 920, N. L. P, B. v New Era Die Co , 118 F 2d 500 (C A 3)
49 This proposal was made after months of negotiation and only withdrawn after much time
had been consumed in discussing the proposal
sc At the October 24, 1951, meeting, the last the parties held, Respondent stated that it would
withdraw this proposal provided a contract was reached satisfactory to it. It is significant to
note that at no time was any incentive plan submitted to UE for its approval or disapproval,
although UE requested Respondent to do so. Respondent' s insistence , over a period of several
months, that the contract provide for the establishment of an incentive pay plan "in such man-
ner as the Company may deem fit" further evinces Respondent ' s bad-faith dealings with UE
for, as the Supreme Court held in May Department Stores v N.L.RB., 326 U. S. 376, "Em-
ployer action to bring about changes in wage scales without consultation and negotiation with
the certified representative of its employees cannot , we think, logically or realistically, be
distinguished from bargaining with individuals or minorities " The circuit courts of
appeals have likewise recognized that "the right of collective bargaining is wholly inconsistent
with unilateral company action " (Consolidated Aircraft Corp v. N L RB , 141 F 2d 785,
787 (C A 9)): that wages, in particular, constitute "a subject matter no longer to be unilater-
ally determined by the employer" (Singer Mfg Co v N.L.RB., 119 F. 2d 131, 137 (C. A 7)),
and that employers generally may not effect changes in matters which are properly subjects of
collective bargaining without first notifying the employees' statutory representative and af-
fording the representative an opportunity to negotiate concerning the proposed changes
N L R B v Winona Textile Mills, Inc , 160 F 2d 201 (C A 8), Idaho Potato Growers v
N L R B, 144 F 2d 295 (C A 9), N L R B v Louisville Refining Co , 102 F 2d (C A 6);
Oughton v N L R B , 118 F 2d 486 (C A 3), Aluminum Ore Co v N L R.B., 131 F. 2d 485
(C. A. 7)
si The date of the first meeting between the parties looking toward a new collect ive- ba rgaid-
ing contract
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rates of pay , wages, hours of employment , and other conditions of employment , and by such
refusal, which is violative of Section8 ( a)(5) of the Act , Respondent interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act
The undesigned further finds that by entering into the "Submission Agreement" with
IBEW in December 1951, and later recognizing IBEW as the exclusive collective -bargaining
representative of the employees here involved , Respondent illegally supported and assisted
IBEW in violation of Section 8 (a) (2) and ( 1) of the Act , for at the time of the execution of the
aforesaid agreement and its subsequent recognition of IBEW, UE was the certified bargaining
representative of the very employees IBEW claimed to represent and UE ' s certification had
not been rescinded by the Board nor had another organization lawfully replaced it as such
representative In a case similar to the one here presented , the court stated in Valley Mould
& Iron Corporation v N.L.R.B., 116 F 2d 760, 764 (C A 7)
In pursuance of an election, the Board had certified Amalgamated as the duly designated
exclusive bargaining agent for the employees As we read the statute, in the Board
is lodged jurisdiction to determine in the proper manner the unit appropriate for the
purpose of collective bargaining Congress conferred exclusive jurisdiction upon the
Board to determine the appropriate and selective bargaining unit for employees and gave
to it alone proper machinery by way of election for making such determination Employees
have the right to designate their bargaining agent The Board alone may certify the
selection and we take it that so long as that certification remains in full force and effect,
the organization designated must be recognized The employer must accord to the
certified agent recognition as the proper bargaining agent until the certification is
rescinded or succeeded by another Any other holding would upset orderly procedure
and destroy the efficiency of determination by the body to act and maintain the proceedings
in a state of suspension and indecision. 52
Respondent was not free to refuse to recognize UE as the statutory representative of the
employees nor to recognize IBEW as such representative because negotiations between
Respondent and UE had broken down or because Respondent believed IBEW's claim of majority
respresentation was bona fide, or, under the facts in this case, for any other reason, for, as
the Board stated in the United States Gypsum case, 90 NLRB, 964, 965, "It is well settled
that a union's representative status established by Board certification is conclusively
presumed for a reasonable period of time, customarily 1 year after certification (Belden
Brick Company, 82 NLRB 465, Shawnee Milling Company, 82 NLRB 1266), and indefinitely
thereafter until such status is shown to have ceased (N L R B v Whittier Mills Company,
et al , 111 F 2d 474, 478) The Act provides the methods whereby employees who wish
to change or eliminate their bargaining representative may do so through processes
by means of a rival-union or decertification petition " Furthermore, since, as found above,
Respondent's refusal to bargain with UE occurred as early as May 17, 1951, well within
the certification year and when UE's statutory status was unquestioned, Respondent's conduct
in repudiating UE and subsequently recognizing IBEW as the representative of the employees
was thus clearly violative of the Act 53
In the case of Joe Hearin Lumber, 66 NLRB 1276, the Board repeated the doctrine that-
... The fruition of collective bargaining in an agreement often requires negotiations
lasting several months It is therefore essential to the effectuation of the Act that
representative status, once established, be vested with a substantial degree of stability"
(citing cases) We have accordingly held that when that status has been established in
an election by secret ballot conducted under the auspices of the Board in accordance
with express statutory provisions, a method of determination which leaves no room for
doubt as to the employees' true desires, repudiation of their selection can be established
only through the medium of an equally probative technique (citing cases) We do not feel,
however, that a card check reflects employees' true desires with the same degree of
certainty as such an election
52 Accord, N . L. R. B. v Remington Rand, 94 F. 2d 862 (C. A. 2), and N. L. R. B. v Whittier
Mills Company, 111 F. 2d 474 (C. A. 5)
53See Medo Photo Supply v N.L.R.B., 321 U. S. 678, N.L.R.B. v Jones & Laughlin Steel
Corp , 301 U. S. 1, May Department Stores v N . L. R. B., supra , J. I Case Co v N. L. R. B.,
321 U. S. 332. N.L.R.B. v Grower- Shipper Vegetable Ass'n , 122 F. 2d 368 (C. A. 9)
PRYNE & COMPANY, INC 477
Besides entering into the submission agreement, Respondent gave IBEW further substantial
assistance and support in violation ofSection8 (a) (2) and (1) of the Act For example, Pryne's
oft-announced statements that with an AFL label Respondent's sales would materially
increase , Pryne's suggestion that Treise talk to the employees in order to get them to swing
over to IBEW and in assuring Treise that if Respondent and IBEW signed a contract Treise's
wages would be materially increased, Kelly's remark to Liscomb that Respondent in the future
would hire sufficient IBEW adherents to enable IBEW to become the employees' collective-
bargaining representative, permitting the solicitation of membership withdrawals from UE
on company time and property, and Respondent's refusal to bargain collectively with UE
The undersigned further finds that by Pryne's remarks to Treise, as fully set forth above,
by Pryne's tacit approval and aid in the solicitation of membership withdrawals from UE,
by Miller's statements to Loghry, epitomized above, by Kelly's anti-UE and pro-IBEW state-
ments which Liscomb attributed to him, by Cabana's anti-UE and pro-IBEW statements to
Royalty and Freeman, as summarized above, and by Rea's remark to Lambert on March 21,
1951, Respondent violated Section 8 (a) (1) of the Act
The record abundantly supports a finding that the main cause of the strike was Respondent's
refusal to bargain collectively with UE in good faith Even though economic considerations
may also have been present, an unfair labor practice strike does not thereby lose its character
and scope 54
It is now settled law that upon termination of an unfair labor strike, as here, the strikers
are entitled to reinstatement to their former jobs even if such reinstatement necessitates the
discharge of new employees hired during the strike 55 When, therefore, the 12 persons"
named in the complaint unconditionally offered to return to work, Respondent, by refusing
to immediately assign the said 12 persons to the jobs they held prior to the strike, dis-
criminated against them, and each of them, in violation of Section 8 (a) (3) and (1) of the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent, set forth in section III, above, occurring in connection with
the operations of Respondent, described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and such of
them as have been found to constitute unfair labor practices, tend to lead, and have led, to
labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of Section 8
(a) (1), (2). (3), and (5) of the Act, it will be recommended that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act
Having found that Respondent on May 17, 1951, and at all times thereafter, has refused to
bargain collectively with UE as the representative of the majority of the employees in an
appropriate unit, the undersigned will recommend that the Respondent, upon request, bargain
collectively with UE as the exclusive statutory representative of all the employees in the
unit heretofore found appropriate, and if an agreement is reached, embody such understanding
in a signed agreement.
Having found that Respondent discriminated against 12 named strikers, whose names
appear upon Appendix A annexed hereto, with respect to their hire and tenure of employment
and the terms and conditions of their employment because they had gone on strike in protest
against Respondent's unfair labor practices and had engaged in other protected concerted
activities, the undersigned will recommend that Respondent offer to the said 12 individuals
immediate and full reinstatement to their former or substantially equivalent positions,
excepting those already so reinstated,57 without prejudice to their seniority or other rights
54 N. L. R. B. v Stackpole Carbon, 105 F. 2d 167 (C. A. 3), N. L. R. B. v Remington Rand, Inc ,
supra N.L.R.B. v Barrett Co , 135 F. 2d 959 (C. A. 7)
55N.L.R.B. v Mackay Radio & Telegraph Co , 304 U. S. 333, UnitedBiscuity. N.L.RB.,
128 F. 2d 771 (C. A. 7), Black Diamond S. S. Corp v N.L.R.B., 94 F. 2d 875 (C. A. 2)
"'Since there is no evidence with respect to Braden, no finding is being made with respect
to him Accordingly, the undersigned will recommend that the allegations of the second
amended complaint as to him be dismissed
The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB
827.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and privileges The reinstatement shall be effected in the following manner All employees
hired after October 1, 1951, the date when UE called off the strike and the strikers un-
conditionally requested reinstatement , shall , if necessary to provide employment for those
to be offered and who shall accept their former or substantially equivalent positions, be
dismissed. Likewise, if the former positions of any of the said strikers have been taken by
persons who were in Respondent ' s employ prior to the strike , then those persons shall be
relieved thereof in order that the said strikers may be assigned to their former positions
If, however, by reason of a reduction in force there are not immediately available sufficient
positions for the 12 named strikers all available positions shall be distributed among such
persons in accordance with the Respondent's usual method of reducing its force, without
discrimination against any employee because of his union affiliation or activities , following
such system of seniority as has heretofore been applied by the Respondent in the conduct of
its business Those employees remaining after such distribution for whom no employment is
immediately available , shall be placed on a preferential list, with priority determined among
them in accordance with the system of seniority or other nondiscriminatory procedure as has
heretofore been applied by the Respondent in the conduct of its business , and thereafter, in
accordance with such list, shall be offered reinstatement by the Respondent to their former
or substantially equivalent positions as such employment becomes available and before other
persons are hired for, or transferred to, such work
The undersigned will also recommend that Respondent make whole the aforesaid 12 strikers
for any loss of pay they may have suffered by reason of the Respondent's discrimination against
them by the payment to each of a sum of money equal to the amount which he normally would
have earned as wages from October 1, 1951, 58 to the date of the Respondent's offer of their
former or substantially equivalent positions, or to the date of placement on the preferential
list hereinabove described , less his net earnings during such period
Having found that Respondent illegally assisted and supported IBEW by, among other
things, executing the "Submission Agreement," hereinabove referred to, the undersigned
will recommend that Respondent be ordered to cease and desist from giving effect to said
agreement and such other understandings , supplements , extensions, or other agreements as
may relate thereto, or to otherwise unlawfully assist or support IBEW, or recognize IBEW
as the representative of the employees in the bargaining unit
Having found that there is insufficient evidence in the record to sustain the allegations of
the second amended complaint that Henry C Braden was discriminated against, the under-
signed will recommend that the second amended complaint as to Braden, be dismissed
The unfair labor practices found to have been engaged in by Respondent are of such a
character and scope that in order to insure the employees here involved their full rights
guaranteed by the Act, it will be recommended that Respondent cease and desist from in any
manner interfering with, restraining , and coercing its employees in their right to self-
organization 59
Upon the basis of the foregoing findings of fact, and upon the record as a whole , the under-
signed makes the following-
CONCLUSIONS OF LAW
1 United Electrical, Radio & Machine Workers of America, (UE) Local 1421, unaffiliated,
and International Brotherhood of Electrical Workers, Local Union No 1710, affiliated with
American Federation of Labor, are labor organizations within the meaning of Section 2 (5) of
the Act
2 All Respondent ' s Pomona , California , plant production and maintenance employees,
including shipping and receiving employees , excluding clerical employees , watchmen , guards,
supervisors , and professional employees as defined by the Act, constitute , and during all
times material herein constituted , a unit appropriate for the purpose of collective bargaining
within the meaning of Section 9 (b) of the Act
3 United Electrical, Radio & Machine Workers of America, (UE) Local 1421, unaffiliated,
was on August 16, 1950, and at all times since has been, the exclusive representative of all
the employees in the above-described appropriateunit for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act
4 By refusing on May 17, 1951, and thereafter, to bargain collectively with United Elec-
trical, Radio & Machine Workers of America, (UE) Local 1421, unaffiliated, as the exclusive
58Crossett Lumber Co., 8 NLRB 440.
59See May Department Stores v N.L.R.B , 326 U. S 376.
PRYNE & COMPANY, INC 479
representative of all the employees in the appropriate unit, 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 in regard to hire and tenure of employment of the 12 employees whose
names appear on Appendix A. hereto annexed, because they, and each of them, participated in
a strike at Respondent's Pomona, California, plant and engaged in other protected concerted
activities, thereby discouraging membership in UE, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (3) of the Act
6 By giving illegal assistance and support to International Brotherhood of Electrical
Workers, Local Union No 1710, affiliated with American Federaton of Labor, thereby en-
couraging membership in that organization and discouraging membership in UE. Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)
(2) of the Act
7 By interfering with, restraining, and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act
8. The aforesaid unfair labor practices are unfair labor practices within the meaning of
Section 2 (6) and (7) of the Act
9 Respondent did not discriminate against Henry C Braden as alleged in the second
amended complaint
E Recommendations omitted from publication ]
APPENDIX A
Joseph Cardoza Bill Bozeman
Clarence Hughey John O. Campbell
Bernardino Flores Floyd Downs
George Freeman Delmar F. Shanks
Edward R. Wyss (also known Joe Hensley
as E Robert Wyss, Jr.)
Warren Busse Sam Grizanti
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby
notify our employees that:
WE WILL bargain collectively, upon request, with United Electrical , Radio & Machine
Workers of America, (UE) LOCAL 1421, as the exclusive bargaining representative of all
employees in the bargaining unit described herein and if an understanding is reached,
embody such understanding in a signed agreement The bargaining unit is.
All our Pomona, California, plant production and maintenance employees, including
shipping and receiving employees, excluding clerical employees, watchmen, guards,
supervisors, and professional employees as defined by the Act
WE WILL offer to the employees named below immediate and full reinstatement to the
positions they held immediately prior to the strike which commenced on July 2, 1951,
without prejudice to any seniority or other rights and privileges previously enjoyed, and
make them whole for any loss of pay suffered as a result of the discrimination against
them
Joseph Cardoza Bill Bozeman
Clarence Hughey John 0 Campbell
Bernardino Flores Floyd Downs
George Freeman Delmer F. Shanks
Edward R Wyss (also known Joe Hensley
as E. Robert Wyss, Jr )
Warren Bosse Sam Grizanti
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL withdraw from, and will give no effect to , the"Submission Agreement"
which we entered into with International Brotherhood of Electrical Workers, Local Union
No. 1710, affiliated with American Federation of Labor, on or about December 5, 1951,
and will withhold from IBEW any other illegal support, assistance , and recognition as
representative of the employees in the above-described bargaining unit.
WE WILL NOT encourage membership in IBEW nor discourage membership in UE.
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 organizations , to join or
assist United Electrical , Radio & Machine Workers of America, (UE) Local 1421, or any
other labor organization , to bargain collectively through representatives of their own
choosing and to engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection or to refrain from any and 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.
All our employees are free to become or remain members of United Electrical , Radio &
Machine Workers of America , (UE) Local 1421, or any other labor organization . We will not
discriminate in regard to hire or tenure of employment or any term or condition of employ-
ment against any employee because of membership in or activity on behalf of any labor
organization.
PRYNE & COMPANY, INC.,
Employer.
Date ................. By ...........................................................................................
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must be altered,
defaced, or covered by any other material.
PACIFIC INTERMOUNTAIN EXPRESS CO. and OFFICE EM-
PLOYEES INTERNATIONAL UNION, LOCAL NO. 29, AFL,'
Petitioner
PACIFIC INTERMOUNTAIN EXPRESS CO. and PACIFIC IN-
TERMOUNTAIN EXPRESS OFFICE EMPLOYEES ASSOCIA-
TION,2 Petitioner. Cases Nos. 20-RC-2061 and 20-RC-2064.
June 9, 1953
DECISION AND DIRECTION OF ELECTIONS
Upon petitions duly filed under Section 9 (c) of the National
Labor Relations Act, a consolidated hearing was held before
Shirley N. Bingham, hearing officer. The hearing officer's
rulings made at the hearing are free from prejudicial error
and are hereby affirmed.3
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
'Hereinafter referred to as AFL.
2 Hereinafter referred to as the Association.
The AFL moved to amend its petition to limit the unit it sought to represent to the office
clerical employees of the Emoryville terminal. The hearing officer referred the motion to
the Board for ruling. The motion is granted.
105 NLRB No. 54.