Tex-Tan Welhausen Co.

National Labor Relations Board - Board Decisions

Jul 1, 1968

172 N.L.R.B. 851 (N.L.R.B. 1968)

TEX-TAN WELHAUSEN CO. 851
Tex-Tan Welhausen Company and Tex-Tan
Western Leather Company , Division of Tandy
Corporation and Amalgamated Meatcutters and
Butcher Workmen of North America , AFL-CIO.
Case 23-CA-2222
July 1, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On November 24, 1967, Trial Examiner George
Turitz issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. He also found that Respondent had not en-
gaged in certain other unfair labor practices and
recommended dismissal of those allegations of the
complaint. Thereafter, the Respondent and Charg-
ing Party filed exceptions to the Decision and sup-
porting briefs.' The General Counsel filed cross-ex-
ceptions and a supporting brief and an answering
brief to Respondent 's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, cross-ex-
ceptions, motion and briefs, and the entire record
in the case, and hereby adopts the findings,' conclu-
sions,3 and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, Tex-Tan Welhausen
Company and Tex-Tan Western Leather Company,
Division of Tandy Corporation, Yoakum, Texas, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recom-
mended Order.
' We have noted the Charging Party's motion to strike certain material
from Respondent 's brief, as gratuitous invective and scurrilous insults
directed to the Trial Examiner and to matters outside the record unrelated
to any issues in the case As the Board gives no weight to such immaterial
and irrelevant matters, we deem it unnecessary to physically expunge such
matters from the brief
Y The Trial Examiner inadvertently stated in the first sentence of section
E (The Negotiations After the Strike ) that on June 6, 1966 , the Union sent
Respondent a telegram declaring that the strike had been terminated,
whereas, the record shows that such telegram was sent on June 3, 1966
' The Trial Examiner's findings and conclusions are based , in part, upon
credibility determinations , to which the Respondent has excepted Respon-
dent also contends that the Trial Examiner was biased and prejudiced
After careful review of the record , we conclude that the Trial Examiner's
credibility findings are not contrary to the clear preponderance of all rele-
vant evidence Accordingly, we find no basis for disturbing those findings
Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A
3) We also find no support in the record for the charge of bias and preju-
dice
TRIAL EXAMINER 'S DECISION
GEORGE TURITZ, Trial Examiner: A hearing was
held before the Trial Examiner from December 5 to
15, 1966, at Victoria, Texas, and from February 7
to 15, 1967, at San Antonio, Texas, on an amended
complaint against Tex-Tan Welhausen Company
and Tex-Tan Western Leather Company, Division
of Tandy Corporation, herein called Respondent
and, at times , the Company, or Tex-Tan,' issued by
the General Counsel of the National Labor Rela-
tions Board, herein called the Board, through the
Regional Director for Region 23. Said amended
complaint was issued November 4, 1966, upon a
charge and six amended charges filed by Amalga-
mated Meatcutters and Butcher Workmen of North
America, AFL-CIO, herein called the Union, and
duly served upon Respondent.' Respondent filed its
answer to the amended complaint in which it ad-
mitted some of the allegations but denied all allega-
tions of unfair labor practices. The General Coun-
sel and Respondent were represented by counsel at
the hearing and the Union by counsel and by an In-
ternational Representative. All parties waived oral
argument at the conclusion of the hearing but
thereafter filed briefs with the Trial Examiner.
Upon the entire record and from his observation
of the witnesses, the Trial Examiner makes the fol-
lowing:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a New Jersey corporation having
its principal office and place of business at
Yoakum, Texas, where it is engaged in the manu-
facture and sale of leather goods. In the course of
its operations Respondent annually sells and ships
from its place of business products valued at in ex-
cess of $50,000 directly to customers located at
points outside the State of Texas, and annually
'Tex-Tan Welhausen Company will be referred to as Welhausen and
Tex-Tan Western Leather Company as Western
' The original charge was served on November 5, 1965, and the
amended charges were respectively served on December 17, 1965, and
May 20, July 18, August 9 and 31, and October 31 , 1966 The original
complaint was issued June 1, 1966
172 NLRB No. 93
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purchases goods and materials valued at in excess
of $50,000 which are shipped directly to its place
of business at Yoakum, Texas, from points outside
the State of Texas. It is found that Respondent is an
employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the National Labor
Relations Act, as amended, herein called the Act.
11. THE LABOR ORGANIZATION INVOLVED
Amalgamated Meatcutters and Butcher Work-
men of North America , AFL-CIO, is a labor or-
ganization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
1. Issues
The central and principal issue litigated at the
hearing was whether Respondent failed to bargain
collectively with the Union in good faith by insist-
ing on unilateral control of rates of pay for
piecework and by its general approach to bargain-
ing. Other issues litigated included whether the em-
ployees' strike was caused by unfair labor practices,
whether Respondent discriminated against strikers
by denying them vacation pay and refusing to rein-
state them, and whether Respondent illegally
threatened its employees with loss of employment
by a letter it sent them before the strike and by
means of "warning slips" issued to some who
returned to work after the strike.
2. Background
Some years ago the Union was certified as bar-
gaining representative of Respondent 's employees
in a broad "production and maintenance" unit. On
May 13 , 1959, the Union filed charges against
Respondent upon which the General Counsel is-
sued a complaint alleging , inter alia , violation by
Respondent of Section 8(a)(5) of the Act. These
allegations were in part sustained by the Trial Ex-
aminer and the Board ,' but on May 24, 1963, the
Court of Appeals for the Fifth Circuit denied en-
forcement of part of the Board 's Order and re-
manded the remainder of the case for a new hear-
ing.' Meanwhile, on May 10, 1963, Respondent and
the Union entered into their first collective -bargain-
ing agreement , which was to expire on May 10,
1965, unless automatically renewed because of
absence of notice by either party . The Union sub-
sequently withdrew the charge in Case 23 -CA-920
and on January 3 , 1964, on motion by the General
Counsel , the complaint in that case was dismissed
by the Board.
Tex-Tan, Inc , 134 NLRB 253. Case 23 -CA-920
' N L R B v Tex-Tan, Inc, 318 F 2d 472
' G C Exh 4 ( B) The expired 1963 contract is G C Exh 3
e Respondent 's last proposed extension , to September 10, 1965 (G C
3. Basic Chronology
On March 5, 1965, the Union wrote to Respon-
dent that it desired to negotiate a new agreement,
at the same time giving the required notice to the
Federal Mediation and Conciliation Service. On
April 5, 1965, George Elwood, the Union's Deputy
Administrator for its local in Houston, forwarded to
Respondent its "initial proposals" for modification
of the contract,5 reserving the right to add to or
amend them during negotiations. Negotiations com-
menced on April 29, 1965. Various extensions of
the old contract were agreed to, but the contract
finally expired, apparently on July 10, 1965.1 On
July 28, 1965, and again on September 29, 1966,
Respondent submitted complete proposed written
contracts, and, upon insistence by Respondent, the
Union did so on October 18, 1965.1 On October 18
or 19 the Union held a meeting of the employees at
which the employees' negotiating committee was
authorized to call a strike, which was subsequently
called for Monday, November 8, 1965. A large
number of employees responded and picket lines
were set up and maintained. The strike was ter-
minated on June 3, 1966. Respondent eventually
offered employment to most, but not all, the
strikers; in many cases, however, in different jobs.
Bargaining conferences were held as follows:
Conference 1965
1st April 29
2nd May 19
3rd June 11
4th July 16
5th July 19
6th July 22
7th August 4
8th October 11
9th October 20
10th December 3
Conference 1966
1st Executive January 24
11th January 25
2nd Executive March 3
3rd Executive March 1 1
4th Executive March 23
5th Executive April 6
12th June 7
13th July 18
14th September 23
15th September 29
It will be noted that the ninth conference was held
1 or 2 days after the employees' strike vote, and
that seven conferences were held during, and four
Exh. 5), was not accepted by the Union, which proposed a shorter ex-
tension
' Resp Exh 10 and G C Exh 32 and 13, respectively
TEX-TAN WELHAUSEN CO. 853
after, the strike. Five of those during the strike
were denominated "executive meetings" and were
not attended by committee members or, in some
cases, by the Union's chief negotiator, Harold
Shapiro. Respondent adduced evidence also of con-
versations between counsel for the Respondent and
for the Charging Party the day the hearing in the
present case opened and during the period the
hearing was being held which counsel for the
General Counsel and for the Charging Party ob-
jected to as settlement, rather than bargaining,
negotiations and therefore privileged. At most, but
not all, of the bargaining sessions the Union's prin-
cipal spokesman was Harold Shapiro, an Interna-
tional representative, and Respondent's was Theo
Weiss, its attorney. Others who participated to
some extent in the negotiations on behalf of the
Union were George Elwood, an International
representative and trustee of the Houston local; A.
D. Downer, an attorney and business representa-
tive; Abe Fineglass, International vice president and
director of the Fur and Leather Department; Fred
Weldon, counsel; Sam Twedell, vice president in
the Texas area; and one Nelson; and on behalf of
the Respondent were L. Bruce Fryburger and Koe
L. Brockermeyer, Weiss' associates, William
Manning, production manager of Tex-Tan Western,
Arthur Tolbert, vice president of Tex-Tan Wel-
hausen in charge of production;" Philip Welhausen,
president of Western; Lewis Shows, president of
Welhausen, and C. C. Welhausen and Cliff Shawd,
officials of the Respondent. The union representa-
tives were accompanied by employee-committee
members, usually numbering between 14 and 19,
who participated to some extent in the discussions.
Starting with the eighth session a Federal mediator,
E. B. Kincaid, also attended a majority of the
meetings. Respondent operated a tape recorder at
all the conferences except the five "executive
meetings" and the record contains as exhibits trans-
cripts of those tapes.9 At the first session the Union
objected to the tape recorder but Respondent in-
sisted on its use. The denials of Manning and Tol-
bert that any mention was made of the tape
recorder before the fourth session have not been
credited. They were contradicted by Downer and
Elwood, who were corroborated by Respondent's
Exhibit 32, which quotes Weiss as saying, ". . . At
the beginning we invited the Union to bring their
own tape recorder."
The Trial Examiner received in evidence as "past
recollection recorded" summaries of most of the
bargaining sessions prepared by Respondent's attor-
neys conducting the negotiations, each summary
having been completed within 1 week or less after
the session covered.10 They not only set forth such
things as dates, places, and participants in the
meetings , proposals made and their disposition, but
also contained lengthy accounts of the negotiators'
statements of position and arguments. Respondent
claimed that the summaries were prepared in order
that its principal officers could be kept informed of
the progress of the negotiations. As described else-
where in this Decision, the attorneys who pre-
pared the summaries were directly involved in
long, controversial discussions. The use of the tape
recorder at the very start of the negotiations
establishes that they were aware of the possibility
that an unfair labor practice proceeding would
eventuate and that the summaries might be offered
as evidence in such litigation. Thus, without any in-
tent to mislead, there would necessarily be some
tendency on their part to present their performance
in the negotiations to their principals and to the
Board in as favorable a light as possible. While this
would also be true of a witness, he is on the stand
for cross-examination, the summaries are not.
Respondent did not even present for cross-ex-
amination the persons who prepared the summa-
ries. See III Wigmore, Evidence, § 746 (3d ed.
1940). Moreover, in the course of examining the
evidence, the Trial Examiner has had occasion
from time to time to make direct comparison of the
summaries with the verbatim transcripts and has
found frequent serious inadequacies and inaccura-
cies in the summaries as to matters bearing materi-
ally upon the parties' statements of position and the
manner in which the negotiations were conducted.
In view of the self-serving character of the summa-
ries and of the extent of inaccuracy and bias dis-
closed, the Trial Examiner finds them unreliable as
evidence of what happened at the negotiations and
not entitled to weight. The Trial Examiner does not
intend to indicate that the inaccuracies and omis-
sions in the summaries were deliberate. For this
reason the Trial Examiner excludes from the find-
ing of unreliability objective facts stated in the sum-
maries of a simple nature such as the dates and
times of meetings, the names of the persons
present, and the subjects discussed, insofar as men-
tioned.
The parties used the expired contract as the
framework for their negotiations." At the first con-
ference Weiss suggested that the parties go through
the old contract to see whether they were in agree-
ment on parts of it. He then said, "Let me suggest a
ground rule here that I think we usually have in
these sort of things. That we have an understanding
among ourselves that there is no agreement
between the parties until we have finally agreed
upon a complete contract ... anything we agree on
an article or clause is tentative until we agree on
the entire contract and it is ready to be signed. Is
that satisfactory with everybody?" The union
' Tolbert and Manning attended all sessions except the first two execu-
tive meetings
' Resp Exh 29 through 35 and C P Exh 9A through H
No summary was offered of the first two executive meetings or of the
third ordinary session Those for the two executive meetings were not of-
fered on the stated ground that they could not be proved except through
the testimony of counsel or, as to one , of a high official of Respondent
" Proposed drafts of new contracts submitted during the negotiations
contained only 22 articles , as against 23 in the old contract Article X111 of
the old contract was in effect merged with article XIV
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representatives agreed. At the start of the negotia-
tions Weiss also stated that the Company did not
consider any increase in labor cost advisable at that
time. He pointed out that the Union's first seven
proposals were in that catagory and therefore he
did not discuss any of them beyond stating that the
Company had "carefully considered your proposals
and everything."
The subject most discussed in the negotiations
prior to the strike was Respondent's "Standard
Hour Plan," or piecework system,12 under which 80
percent or more of the employees worked. At the
close of the third conference Elwood stated that the
piecework system was ". . . one avenue that we in-
tend to explore just as completely as possible." At
the fourth conference Shapiro made an extensive
and more emphatic statement to the same effect,
concluding:
... As I said, this is the key to our contract.
Regardless of what we may agree upon or dis-
agree upon regarding wages, hours, holidays,
insurance, you name it, we will not have a
satisfactory relationship unless we resolve
some of the problems relative to piece work.
When Weiss commented that in previous negotia-
tions the Union's position had been that the
piecework system should be "junked," Shapiro
replied that that was not the Union's position, that
the Union was going to help the Company make it
successful, and that its proposals were designed
towards that end.
B. Negotiations up to the Strike
1. The piecework system
a. Description
Article III of the expired contract, entitled
"Wages," read as follows:
Section 1. Wages in the Company's produc-
tion departments shall be those achieved under
the Company's established standard hour
piece-work system, with the hours of accom-
plished work multiplied by the base rate for
each job classification as shown by the Com-
pany's records and as developed and
established by the Company from time to time.
The Company's records reflect the new rates
placed in effect by the Company in September,
1961.
Section 2. It is recognized that the Com-
pany's standard hour piece-work system is es-
sential to the efficient operation of the Com-
pany. The Union will do nothing to interfere
with or in any way obstruct or hamper the
operation of this system; provided, however,
the presentation of a legitimate grievance
under the grievance and arbitration procedure
of this contract shall not be a violation of this
contract. So long as it is not for the purpose of
interfering with, hampering or obstructing the
operation of the Company's standard hour
system, but for the purpose of determining
whether the provisions of this agreement are
not being abused, an accredited representative
of the Union, after having made previous ap-
pointment and at reasonable times, may have
access to the industrial engineer's records or
matters concerning the standard hour system.
No such records shall be removed from the in-
dustrial engineer 's office.
Section 3. Piece-work standards shall be set
by the Company by engineering stop watch
studies made in accordance with the Company
existing standard hour system. All such stan-
dards, as soon as released and put into effect
by the Company, will be posted in each factory
so that each employee affected will have full
access thereto and full knowledge thereof. The
Company will continue to furnish the Union
with any new and revised piece-work stan-
dards.
Section 4. Employees regularly on time
work shall be paid wages within the ranges now
provided according to the Company's records.
Such rates reflect the changes made in Sep-
tember, 1961. The Company, in assigning the
time rates within such ranges beyond the auto-
matic stations , may reward skill, versatility,
productivity and efficiency.
Section 5. A piece-work employee assigned
to a job which is paid on a time work basis,
shall receive the classification rate for the job
on which he is actually working.
Section 6. Upon the effective date in Sep-
tember, 1963, of the 1961 Amendments to the
Fair Labor Standards Act, the Company will
add ten cents (10 cents) per hour to all rates.
Section 7. In the event it becomes necessary
to re-time a job, the employee who is working
on the job to be re-timed shall be advised in
advance of the actual taking of the timestudy.
Respondent issued to the employees a booklet enti-
tled, "Information Bulletin on Tex-Tan's Standard
Hour Plan for Production Workers. 1113
Piecework wages included two components-the
established wage rates for the several job classifica-
tions and the established "standards" for the nu-
merous jobs worked on. Negotiations with respect
to the two components were carried on separately.
A piecework rate was expressed in terms of the
"standard hours" necessary for accomplishing 100
units of work, i.e., for performing a particular
operation on 100 of the articles being produced. A
"standard" of one hour for 100 units meant that an
11 - pay in terms of standard hours is the same as a piece rate ex-
cept that it is more convenient , since it allows changing basic pay with au-
tomatic adjustment of the incentives " Mundel , " Motion and Timestu-
dy," 3d ed , 1960, Prentice Hall, p 582
"G C Exh 6
TEX-TAN WELHAUSEN CO. 855
employee received one hour's pay, at the assigned
wage rate, for every 100 units he did, subject, how-
ever, to a floor of the Federal minimum wage. If
that job was rated at $1.30 per hour, the operator
received $1.30 for every 100 units, or 1.3 cents per
unit, or piece. If Respondent for any reason
changed the standard from 1 hour to .80 hours, the
same employee would receive only .80 hours' pay,
or $1.04, for every 100 units, or 1.04 cents per
piece.
The time standards for manufacturing Respon-
dent's numerous products were set by the Stan-
dards and Methods Department, headed by
Respondent's industrial engineer. The process con-
sisted of the following: first, a decision was made as
to the exact method for performing the operation
and each task within the operation; second, the
operation was broken down into parts, known as
"elements"; third, an operator was timed by stop-
watch as he performed each element and the ob-
served times were recorded on forms called time-
study observation sheets; and fourth, the necessary
currences - 10 percent on most operations - and
hours" for each element and for the entire opera-
tion. In making such computations Respondent's
timestudy engineer modified the observed time
by two factors, namely, an allowance for fatigue,
personal needs, rest periods, and minor delays
caused by machine breakdowns or similar oc-
currences-10 percent on most operations-and
an allowance based upon the timestudy engineer's
rating of the operator's observed speed as com-
pared with what he considered to be the "norm."
While witnesses spoke of giving a speed rating to an
operator, what was meant was the operator's speed
at the time of rating, and not his ability or usual
pace. McClain, Respondent's industrial engineer,
testified that the concept of "normal" speed is sub-
jective. He illustrated "normal" speed by citing a
man walking at the rate of 3 miles per hour, or
dealing 52 cards in 30 seconds. Both McClain and
Powderly, the Union's timestudy expert, claimed
that with training and experience a timestudy man
acquires a good sense of what is "normal" speed
and an ability to rate the relationship between the
speed of observed operations and "normal" speed.
McClain testified also, referring to an ordinary
operator, that "normal" speed means that the
operator "is attaining a hundred percent normal
without any special effort." Under Respondent's
system if the observed time for 100 units was 50
minutes and the operator was rated as working at
"normal" speed, a 10 percent fatigue allowance
would bring the standard time for the 100 units to
110 percent of 50 minutes or 55 minutes. If how-
ever, the observed operator was rated as working at
80 percent of "normal" speed- whether because
he was working at less than his usual pace or
because he was a slow worker-the standard time
would be 50 minutes times 80 percent times 110
percent, or 44 minutes.
Shapiro, the Union's chief negotiator, who had
had a considerable amount of experience in making
and analyzing timestudies and incentive systems,
testified credibly that Respondent's timestudy ob-
servation sheets were insufficient for checking its
timestudies and standards. He stated that a person
checking must first ascertain whether the job is
being done in exactly the same manner and under
the same physical conditions as when the timestudy
was made and the standard set, and that this is not
possible with the mere listing of elements, as on
Respondent's timestudy observation sheets. 14 Thus,
he testified, an element expressed as "positioning
the material" could not be checked without a more
complete description, such as, "He turns around
three quarters ... picks it up, reach[ing] to the
floor, puts it down." He also testified that an ele-
ment , such as "getting materials," could completely
destroy the validity of a timestudy standard, unless
there was a statement of how often the task had to
be performed and a description of how far the
operator had to walk for that task so that the
checker would know whether the condition was the
same as when the timestudy had been made.
Shapiro's testimony was borne out by the testimony
of Koening, one of Respondent's timestudy em-
ployees. He testified that on October 21, 1965, on
Job Number F-550 the operator had to walk 10
feet to obtain materials he was to work on. The ob-
servation sheet for that job, Respondent's Exhibit
57, did not indicate what the distance had been, if
any, when the timestudy had been made. Shapiro's
testimony was also corroborated by incidents dur-
ing negotiations . Complaint was made by em-
ployees that the substitution of smaller work tables
had resulted in extra work because leather hanging
over the side of a table dried more quickly and
became harder to work, and the smaller tables
became crowded with stacked work, which would
slide off. The type of timestudy observation sheet
used by Respondent plainly would not have dis-
closed the dimensions of the tables nor the condi-
tion of the leather. Company officials admitted the
substitution of the smaller tables though denying its
importance. One employee complained that when
working the employees had to look for materials,
whereas when the job had been timed, the materials
had been properly laid out . Manning replied that
the foreman was new. Shaefer testified that when,
after the strike, he was assigned to a different shift,
the materials for his job were not laid out as handily
as on his original shift but the standard remained
the same. Shapiro's testimony as to the need for
carefully detailed and recorded job descriptions is
further borne out by timestudy literature.15
" See Resp Exhs 56 through 63 and G C Exits 80 through 84 shows timestudy sheets with scale drawings of workplaces The amount of
"See, for example, Mundel, "Motion and Time Study" 3d ed , 1960, detail needed, however, varies according to the type of work being done
Prentice Hall, pp 340 to 351 Mundel emphasizes the need for accurate and the conditions-see Barnes , " Motion and Time Study-Design and
recording of the methods and procedures used in making timestudies and Measurement of Work" 5th ed , 1963, John Wiley and Sons , Inc , p 5
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Grievances on establishment of standards
The expired contract , in article XV , gave the
Union the right to file grievances upon ten subjects
listed there "and no others ." The article listed the
application of various clauses of the contract and of
the piecework rates established by the Company
but not the establishment of such rates . Respondent
had in fact entertained grievances on the establish-
ment of the standards . At the first bargaining ses-
sion , when the parties went through the old con-
tract clause by clause , both said that the article on
grievances was "O.K ." On a number of occasions
during the negotiations , when objecting to various
union proposals to establish contractual limitations
with respect to the establishment and changing of
piece rates , described below , Weiss pointed to arti-
cle XV as providing a means of relief where
something was wrong with standards. In its
proposed contract submitted on October 18, 1965,
the Union included a revision of subparagraph 4 of
article XV reading : "(4) The establishment of and
the application of any piece work rate established
by the Company ." At the ninth conference Respon-
dent objected that the old contract was not in-
tended to permit the processing of grievances as to
the establishment of piecework rates , but only as to
mistakes in their application . Weiss said that with
the proposed clause the Union would be involved in
the setting of every standard . Shapiro stated that it
was intended that Respondent fix standards initially
without consulting the Union and that no change
from past practice was intended . He suggested that
Respondent write its own clause giving the Union
the right to file grievances about the establishment
as well as the application of the standard . Respon-
dent agreed "to try to draft something . . ." but
Weiss explicitly stated that he was not promising to
submit anything.
c. Retiming
At the third bargaining conference the Union
proposed a revision of section 7, article III, and
four new sections . 16 The proposed revision of sec-
tion 7 was as follows:
The Company shall have the right to re-time
any job on which a substantial change has been
made . Any such retiming and the standard
resulting therefrom shall reflect a change in
earnings only to the extent of the actual
change in the job content . Employees to be
time studied shall be advised in advance that
the study is to be taken.
Its proposed new section 9 included the following:
The Company agrees that no job may be re-
timed for reason of high earnings alone.
The Union argued : If the Company could change
standards in the absence of a substantial alteration
of job content or method , it might change standards
merely because some employees , as a result of long
experiences with a particular operation, had
developed high dexterity , and, thus , high earnings;
retiming should reflect change in standards only to
the extent of an actual change in the operation-for
example , a 10-percent saving of work should result
in a 10-percent reduction of the standard and not
more ; the Company would be destroying its incen-
tive system if employees felt that standards might
be changed arbitrarily merely because their
earnings were deemed excessive; and the chief
topic of the employees ' complaints to the Union
had been the piecework system . Challenged as to
this last , Shapiro , supported by committee mem-
bers , stated that shortly before when the Saddletree
Shop had been moved, all jobs had been retimed
and that under the new standards the employees'
earnings had dropped substantially although their
jobs had been unchanged except as to workplace
and access to materials . Gomez testified to the
same effect with respect to rawhide cutting. The
company representatives expressed concern that
the word " substantial " in the proposed section 7
might cause disputes as to whether retiming was
justified . Shapiro suggested that the Company
devise its own language but finally agreed to drop
the word substantial . Respondent then raised the
question of defining the word "change "; it ob-
jected also that the provision that a changed stand-
ard reflect only the change actually made would
result in a grievance "every time " as to the extent
of the change and that the matter was too com-
plicated to be spelled out in a contract specifically;
and the Company asserted that in practice only the
changed elements and those affected thereby were
retimed . Weiss objected that the provision against
retiming for high earnings would prevent correction
of standards based on mistakes made evident by the
fact that earnings turned out to be far out of line.
Shapiro immediately proposed to add , "This does
not preclude the right of the Company to retime a
job in which an error has been made in the original
study ." Weiss replied that the proposal would sow
the seed for grievances. Shapiro proposed as an al-
ternative that the contract include a certain sen-
tence from the Company 's own booklet describing
the piecework system . The Company agreed to take
that proposal under consideration . At the next con-
ference , with Weiss absent, Shawd questioned
whether booklet language was suitable for a con-
tract , and he said that the Union 's original
proposal-no retiming for reason of high earnings
alone-sounded "on the reasonable side" if
safeguarded against "a license to go file for a lot of
grievances ." Shapiro suggested that he would be
satisfied to have the Company write the language.
On July 28, when the Respondent presented a
complete contract proposal , it included the follow-
ing in article III:
Section 7 . Without in any way limiting the
" GC Exh 7
TEX-TAN WELHAUSEN CO.
Company's authority set forth herein and pure-
ly by way of explanation, the Company states
that it is its intention that changes in the
method, procedure, layout, and material for the
job calls for cancellation of the existing standard
and the setting of a new standard to cover the
new job. Any variation from the method and
procedure used when the timestudy was made is
a "method change". All time standards are set
for the particular method used at the time the
timestudy was made and, where finally and cor-
rectly set, will not be changed unless the method
procedure, layout, [or] material or some other
circumstance or condition is changed.
The italicized words were passages from the Tex-
Tan booklet, the italicized portion of the last sen-
tence being the passage proposed by the Union.
At the eighth conference, the first attended by
Shapiro since submission of the Company's July 28
proposed contract, Weiss objected to the Union's
proposal that changed standards on retiming be
limited to reflect a change in earnings only to the
extent of the change in job content on the ground
that earnings might decrease as the result of less ef-
fort. Shapiro replied that it was assumed that if an
employee failed to produce the same output he
would not have the same earnings , and immediately
revised the proposal to substitute change in stand-
ard for change in earnings. He commented that
the proposal was in lieu of his earlier proposal to
use the language taken from the Company's
booklet, which the Union would also accept.
Manning called attention to Respondent's most
recent proposal quoted above, which both Shapiro
and Weiss had apparently forgotten. Weiss said that
that was a concession Respondent had made to the
Union in an effort to reach an agreement . Shapiro
asked what the meaning was of the words, "With-
out in any way limiting Company authority set
forth herein and purely by way of explanation,"
whether that meant that the Company still reserved
the right to restudy a job even though there might
not have been a method change. He said, "Mr.
Weiss, perhaps this proposal could be satisfactory; I
am trying to find out what it means." Weiss replied,
"It means exactly what it says." The colloquy
continued:
MR. SHAPIRO: .... Now, does this mean
that despite your language ... that if you de-
cide that if you want to restudy a job and
change a standard on the job where a method
change has not been made you would have the
right to do it? Does it mean that?
MR. WEISS: It means the Company can still
operate its standard hour system and that this
unnecessary provision shall not be construed as
impinging on the Company right to operate
that system.
MR. SHAPIRO : We will say that six times in
857
the piece work proposal if you want to say it.
We will say it seven times, that we will not
impinge upon your right to operate the piece
work system. I want to impinge on one right
which you have allocated to yourself in the
past, and that is your right to restudy and
change a standard where no change in the job
has been made. Now I don't care how you say
it. If you say it, it will be acceptable. If you
have said it in here, this is acceptable, if that is
what you said. Now, I want to know is that
what it means?
MR. WEISS: We think the language is clear
and implicit (sic) and speaks for itself.
MR. SHAPIRO : Well, is that what it means?
MR. WEISS: We don't have to interpret it for
you .... This is contract language . You've got
to read it and reach your own conclusions.
Weldon, the Union's attorney, stated that the
clause meant nothing and Weiss did not contradict
him.
With respect to section 9, Respondent insisted
that jobs never were retimed by reason of high
earnings alone. Shapiro said that in that event there
should be no objection to so providing in the con-
tract and he asked whether the Company would be
in violation of the old contract if it did retime a job
because of higher earnings . Weiss said that the
proposed clause would be an implied admission
that it had happened. Shapiro proposed that the
provision read, "Just as in the past our policy will
continue to be that we will not retime a job and
change standards on the basis of high earnings
alone." Weiss replied that the Union was trying to
wreck Respondent 's piecework system.
The Union's complete written contract proposal
submitted on October 18 dropped the provisions
for notice to employees to be timestudied and
prohibiting retiming because of high earnings. It in-
cluded a revision of section 7 of article III into two
sections, the second reading in relevant part as fol-
lows:
Section 8. All time standards are set for the
particular method used at the time the time
study was made and will not be changed unless
the method, procedure, layout or material is
changed."
(a) The Company shall have the right to re-
time any job in which there has been a change
as described above. Any such re- timing shall
reflect a change in the Standard only to the ex-
tent of the actual change in the job content ...
At the ninth conference Weiss stated that the
above-proposed section 8 was unsatisfactory for a
number of reasons including , among others , that it
omitted the first two sentences of the Company's
proposed section 7 as well as other language in that
proposal.
IT This sentence was an extract from the Company 's booklet
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
d. Averaging
At the third conference the Union proposed a
new section of article III as follows:
Section 8. All earnings on piece work shall
be guaranteed to the employee and there shall
be no averaging of earnings to compensate for
the minimum guarantee on jobs on which the
employee does not achieve standard produc-
tion.
As already indicated, piecework employees were
guaranteed the Federal minimum wage irrespective
of their production. This guarantee, however, was
applied on the basis of the employee's earnings for
the entire week. The Union argued that where an
employee during the week produced above stan-
dard, or was on timework, on one or more jobs, and
produced less than standard on others, averaging
might, in effect, cause him to receive less than the
Federal minimum wage when working on the latter
jobs. Respondent's first objection to this proposal
was on the assumption that it prohibited averaging
of earnings during a single day on a single job.
When the Union replied that it sought to prevent
averaging only of earnings on different jobs,
Respondent replied that without averaging an em-
ployee "might work like the very devil" on jobs he
was familiar with and rest up when assigned to
other jobs, assured that he would be paid the
Federal minimum. They rejected the Union's claim
that at times employees were unable to achieve
standard through no fault of their own, not-
withstanding alleged instances cited by members of
the employee committee present. When the Union
suggested that the employer could take disciplinary
measures against an employee who loafed on some
jobs, Respondent retorted that in such event the
Union would, as it had done, bring charges against
Respondent. The Union's October 18 proposed
contract provided in article III:
Section 9. The employees' incentive earn-
ings shall be guaranteed to them on each job
and there shall be no averaging of earnings
to compensate for failure or inability to
achieve Standard on other jobs.
At the ninth conference Weiss objected to the pro-
posal, stating that the Company felt that averaging
was fair.
e. Productivity speed rating
The Union's proposal as to article III at the third
conference included the following:
Section 9. It is the intent of the parties that
with the proper application of incentive effort
employees will be able to achieve a minimum of
30 percent above the timestudy standard ... .
Shapiro claimed that all piecework systems ex-
pected average employees to achieve 130 percent
of standard if they applied themselves in an incen-
tive manner and he explained that the clause was
needed in order to avoid having standards so set
that an employee working at an incentive pace
would produce only standard. Shawd replied that
the timestudy man who did that would not be an
engineer. Respondent objected to guaranteeing that
employees would achieve 130 percent, pointing out
that some were unable to do so. Shapiro replied
that no guarantee was requested and suggested ad-
ding, "average employees working at a proper in-
centive." Weiss said, "You have asked us to
guarantee that any time somebody failed to make
30 percent above it, we would have a grievance on
that and you would wreck the time-study system. I
mean you don't understand the system . . . ." He
brushed aside Shapiro's qualification, "with proper
application of incentive effort," saying that there
was no way it could be gauged. He said, "The
system is that a normal man working at a normal
speed achieves 100 percent. You say he has got to
achieve 130 percent;" and, "We are surprised that
a system which is designed for a normal person to
make 100 percent, to require that he make 130
percent."
At the sixth conference, with Shapiro absent,
Downer commented, "I understand that an incen-
tive plan or a work standards plan is one in which a
majority of the people must break standard or it is
not a sound basic plan .... Where just a little
handful of people or a few people or a minor per-
centage of people are those who break standard
and make greater than 100 percent it is not a sound
system." At the seventh conference, with Shapiro
still absent, Weiss produced figures showing that
during the previous week at Western, of the 199
pieceworkers including trainees, 20 had achieved
140 percent or more, 40 had achieved 130 percent,
59 had achieved 120 percent, 3 had apparently
achieved between 100 and 119 percent and 77, or
39 percent of all, had achieved less than 100 per-
cent. He also gave figures showing that at Wel-
hausen in one department 83 percent and in
another department 93 percent, excluding trainees,
had achieved standard or better.
During the eighth conference the Union revised
its proposal to read 25 percent in place of 30 per-
cent. Weiss gave Shapiro the above figures and
referred to Downer's statement. Shapiro replied
that that was not the Union's position; that the
Union's position was that a fairly administered
system would result in 100 percent of the em-
ployees achieving 125 percent of standard. Weiss
accused Shapiro of changing the Union's position
and demanded to know whether Downer had
authority to speak for the Union. Shapiro said that
the Union would support any agreement reached by
Downer but that Downer's statement as reported by
Weiss was only an opinion. He said that he was not
asking the Company to guarantee 125 percent "to a
worker working at 60 or 80." Company representa-
tives then argued that with the 125-percent clause
in the contract it would follow that they would be
required to get rid of anyone who failed to produce
TEX-TAN WELHAUSEN CO. 859
at that rate. Shapiro replied that employees could
not be required to work at an incentive pace and
that so long as they made 100 percent of standard
they were producing all that was required. The
Company said that it rechecked when standards
seemed wrong but Shapiro replied that the very
figures quoted by Weiss established that very few
employees achieved 120 percent of standard or
better and that Respondent's system was poorly ad-
ministered. Company representatives expressed
sympathy with the idea that employees should
produce 125 percent but they raised question as to
how to determine what a normal good worker was.
Shapiro pointed to a statement in the company
booklet to the effect that "a hundred percent
productivity is obtained without special effort."
Weiss said that the Union under its proposal could
discredit the system by telling employees to slow
down and he complained that Downer said one
thing and Shapiro said another. Shapiro replied,
"Let's get something straight for the record. You
are making a big deal about what Downer may or
may not have said in the last negotiation meeting. .
.. We have something on the record that was sub-
mitted to you 3 months ago that we discussed in an
attempt to negotiate .... that the intent of the
parties that with the proper application of incentive
effort ... employees will be able to achieve a
minimum of 30 percent above the standard. Now,
this is our proposal and submitted in writing and
discussed and negotiated with you and now you tell
me Downer was here a couple of weeks ago and
said 50 percent ... of the people making above
standard is satisfactory .... What kind of nonsense
is that? You have our written proposal .. So
don't try to beat us over the head with what
Downer may or may not have said."
The Union's October 18 proposal substituted for
the 25-percent above-standard proposal the follow-
ing:
Section 10. An operator working at normal
speed is rated one hundred percent (100%).
One hundred percent (100%) productivity is
attained without special effort if the operator is
experienced on the operation and is applying
himself normally.
At the ninth conference Weiss, going through the
October 18 proposal, said, "We have also dis-
cussed the matter covered by Section 10, and
that's not satisfactory for reasons heretofore
given." Shapiro said, "This is an entirely new
proposal, Mr. Weiss." Weiss replied that except for
the changed percentages it was the same as in the
Union's earlier proposal and was not satisfactory.
Shapiro pointed out that the language was adopted
without the change of a comma from the Com-
pany's bulletin. Weiss said that language ap-
propriate for a bulletin was not satisfactory for a
contract.
f. Union's right to timestudy jobs
The Union's proposed section 9, article III,
presented at the third conference also include the
following: "The Union shall have the right to time-
study any job on which there is a dispute." At the
fourth bargaining conference Shapiro commented
that the Company had agreed to permit an indepen-
dent timestudy survey to be made of certain jobs on
which grievances were pending and he asked
whether the same procedure would automatically
follow in the future in regard to any grievance as to
piecework. Weiss said, "Let's cross that bridge
when we get to it. We have complied with your
request. And when you make other requests, we
will answer them." Shapiro pointed out that it had
taken 3 weeks to get an answer to its request and
said, "... and I don't want to go through a lengthy
procedure in order to get a timestudy man." Weiss
refused to make any arrangements for the future
but said only that the Company would agree to
reasonable requests. A short time later Shapiro
brought up the above proposal for article III. Weiss
said that the matter was adequately covered in the
old contract. Pressed as to the relevant provision,
he said that the right to file a grievance, set forth in
article XV, implied the right to do anything neces-
sary to process it. Shapiro said, "Let's say that in
the contract," and he again pointed out that it had
taken 3 weeks to get consent the last time because
a company official was away. Manning commented
that article III of the old contract dealt with the
Union having access to the industrial engineer's
records and Weiss said, "I knew there was
something in there. Okay." Shapiro countered that
the Union should not be expected to accept com-
pany records on their face. At the fifth conference
Shapiro asked why the Union should be compelled
to go through the procedure of obtaining company
agreement to a timestudy every time there was a
dispute. Shawd replied that the Company had al-
lowed timestudies. At the seventh conference
Respondent informed the union representatives
that a certain job which the Union wished to time-
study was to be run the next day and that they could
have a timestudy man there. The Union replied that
one day's notice was insufficient to bring in an in-
dependent timestudy man. At the eighth con-
cerence Weiss admitted that the Union had the
right to make timestudies on legitimate grievances
but said that the Company had never refused that
right to the Union and that a contractual provision
was therefore not needed. The discussion of the
provision closed with Weiss' expressing concern
that the Union might put a paid employee in the
plant, apparently just to stir up grievances. At the
ninth conference Weiss said that the provision, then
embodied in article III, section 11, of the Union's
October 18 proposal, was not satisfactory in that
form, but he added, "Perhaps we can work out
something that will be."
g. Waiting time for pieceworkers
The Union's proposal as to article III included
the following:
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 10. All employees who are required
to wait in excess of five (5) minutes for materi-
als, breakdown or other causes shall punch out
on timework and be paid their base rate during
the waiting period.
When Shapiro read the above proposal at the third
conference, Manning said, "It is supposed to be on
that basis now." Shapiro replied that employees
had told him that when they had to wait for materi-
als, or new jobs, or because of breakdowns, some
foreman, either expressly or by implication, forbade
them to go on timework. The company officials ex-
pressed skepticism as to such happenings and com-
plained that at times employees went on timework
when they were supposed to be doing piecework.
Shapiro said that that would be wrong also and
said, "Why can't a procedure be set up to accom-
plish this, Mr. Manning? Anything that is fair. I
think the Company has to have some control ...."
At the fourth conference the problem was
discussed further, the committee describing circum-
stances where it arose, and company officials insist-
ing that they did not want the condition to exist. At
the eighth conference, when Shapiro brought up
the proposal again, the following colloquy ensued:
MR. SHAPIRO: Mr. Weiss, we did submit a
specific case on it.
*
MR. wElss: You purported to submit some
and we checked it out and it was not true; just
like Mr. Downer's statement-
MR. SHAPIRO: You have not given us the
results of your check out. Now do that and lets
see.
MR. WEISS: Well, give us some specific in-
stances where this has happened and--
MR. SHAPIRO: Here we go around the merry-
go-round ....
Shapiro then asked the committee members present
if they knew of specific cases, but Weiss said that
the matter should be submitted in writing Manning
said, "Mr. Shapiro, there is no grievance filed on
this particular case that you have-" The colloquy
continued.
MR. WELDON: .... You received specific
cases and you have promised to check it out.
We know of no check out-
MR. WEISS: I don't recall any specific cases
having been given .... while I have been here.
MR. SHAPIRO : YOU just said that you
checked them out and found out it was not
true.
MR. WEISS: No; I didn't say that. I said ap-
parently they must have been checked out and
found to be ....
Finally a committee member told of a recent in-
stance where she had spei,t 45 minutes clearing up
an error caused by her foreman, but had not been
told to punch out on timework. Th,e company offi-
cials said that they would investigate that instance
and pay the employee if it turned out that she was
entitled to the 45 minutes. Weiss said, . . you
pointed out one instance ... out of 350 [em-
ployees] .... Now, I don't think one swallow
makes a summer ...." Shapiro repeated that Weiss
said he had checked out other cases submitted but
Weiss denied having said it and Shapiro proceeded
to another topic. In the Union's October 18, 1965,
proposed contract the clause was omitted.
h. Timestudy engineer as arbitrator
The final clause in the Union's proposal at the
third conference with respect to article III was as
follows:
Section 11. The parties hereto specifically
provide that any piece-work grievance
reaching the step of arbitration shall be
resolved through the appointment by the ar-
bitrator, of a neutral timestudy engineer whose
determination of the proper standard shall be
final and binding upon all parties.
Shapiro said that only a timestudy engineer could
properly evaluate testimony as to piecework
grievances. Fryburger said that under the old con-
tract there was nothing to keep the parties from
,agreeing that the arbitrator be a timestudy en-
gineer , to which Shapiro replied that there was
nothing to keep an arbitrator from disagreeing.
Fryburger then said that the third arbitrator, him-
self, could call in a timestudy engineer and Shapiro
suggested that that be put into the contract.
Fryburger objected, saying that the arbitrator might
not feel that he needs one and that he could make
the decision himself. The issue was discussed
further at the fourth and eighth conferences, with
the Union and the Company advancing substan-
tially the same arguments. In its proposed contract
submitted on October 18, the Union dropped this
proposal.
i. Company proposals on piecework
At the first bargaining conference Respondent
submitted a proposal as to probationary employees
and as to time rates for piecework jobs which, after
some discussion, it withdrew, stating that the pur-
pose was to revise the drafting. At the second con-
ference it submitted a revised proposal,'' which
added a new sentence to section 5, article III, and
added a new section 8. The proposed sections read
as follows:
Section 5. A piece-work employee assigned
to a job which is paid on a time work basis,
"Resp Exh I The withdrawn proposal was Resp Exh 4
TEX-TAN WELHAUSEN CO. 861
shall receive the classification rate for the job
on which he is actually working. A piece-work
employee assigned to a job normally worked
on a piece-work basis, but for which a standard
has not been established shall be paid the base
rate's for the job.
Section 8. All new employees shall serve a
probationary period of ninety (90) days and
during such probationary period, shall be paid
the federal minimum wage; however, an em-
ployee may earn in excess of the minimum
wage during his or her probationary period in
accordance with the Company's established
standard hour piece-work system, with the
hours of accomplished work multiplied by the
base rate for each job classification as shown
by the Company's records and as developed by
the Company from time to time.
Respondent explained that the purpose of thus
limiting probationers' pay was to protect ex-
perienced employees working at time rates from
the unfairness of receiving the same pay as the in-
experienced probationers. The union representa-
tives requested that the matter be held for discus-
sion since it fixed what amounted to apprentice
rates and thus was part of wages, which Respondent
had excluded from negotiations at that time. With
respect to the new sentence in section 5, which em-
bodied current practice, the union representatives
indicated that it seemed satisfactory. The Union's
proposed contract submitted on October 18 in-
cluded the first sentence of the above section 5,
which was taken from the old contract, as section 5
of its article III, and it included in its proposed sec-
tion 8 of article III a subparagraph reading as fol-
lows: "b. Pending such retiming and the establish-
ment of a new Standard, the employee shall be put
on time work and paid at the base rate for the job."
At the ninth conference Weiss objected to placing
that clause in section 8 rather than 5 and also
stated that the particular language was not satisfac-
tory. The section about probationary employees did
not come up for discussion.
2. Wage rates
In its initial proposals the Union included as the
first item, "Substantial wage increases, with piece
work rates adjusted to conform with any general
wage increases negotiated." At the first bargaining
conference Weiss stated that Respondent had care-
fully considered the Union's proposals but that for
competitive reasons it did not consider any increase
in labor cost advisable at that time. Respondent
did, however, discuss at length at the first, second,
and third conferences competition from foreign
firms and from American factories in Puerto Rico,
pointing also to competition from imports. He
said that the Company was operating at a profit
but with increasing difficulty, and that the Com-
pany could halve its cost of operations by establish-
ing a plant in Puerto Rico, as competitors had
done, to take advantage of low labor cost and tax
advantages. Respondent's officials admitted that
notwithstanding Puerto Rican competition its sales
were increasing, but they attributed that to an effi-
cient, agressive sales force and, moreover, had
reservations as to whether the growth had been as
great as it should have been. Weiss said, "...
somewhere down the line, to get a contract and to
avoid all of this time spent on negotiating, the Com-
pany may possibly stretch a point and offer some
character of increase. But at this point we are too
far apart on so many other matters ...." At the
fifth conference, with Weiss absent, Shapiro com-
mented that after 3-1/2 hours no progress was
being made and suggested, "maybe if we can
resolve the economic issues the other things can
begin to fall in line." He called attention to a wage
increase and paid holidays recently granted by a
competitor of Respondent's in Yoakum, to the con-
tinuing increase in the cost of living, and to the fact
that the employees had not had a wage increase for
2 years. Shawd replied that, "the Company was not
sold on any increase in wages and benefits." At the
sixth conference Weiss said that when the parties
were "together on the other important things in the
contract and in order to get ... a ... contract the
company may ... see fit to make some concession
that would involve additional labor costs, however
ill-advised such an increased labor cost might be
considered by the Company .... But an effort of
that kind at this time ... would accomplish nothing
because we are so far apart on so many other
things." Downer said: "We are not moving ....
Turn around and talk to us about money and see
what kind of answer you get .... lets see what hap-
pens to the rest of this stuff." Weiss said that an in-
crease in labor cost might be bad not only for the
Company but for the employees. He pointed out
that it would not help the latter if it impaired
Respondent's ability to compete with Baronet, one
of the firms with a factory in Puerto Ricb, since the
employees would be laid off. He stated, also, "that
... any sort of proposal involving wage costs
wouldn't get us anywhere...." At the eighth con-
ference Shapiro asked if the Company was
prepared to make any proposal on wages. Weiss
replied that it was not, because it had "to be very
careful with reference to increasing its labor costs"
because of foreign and Puerto Rican competition.
He said:
At some time substantial agreement has been
reached on the contract terms, the Company
may in an effort to reach an agreement with
the union make some wage proposal .... The
Company ... doesn't think the wage proposal
at this time would accomplish anything ....
Shapiro asked whether the Company had con-
19 The proposal submitted at the first conference, Resp Exh. 4, had sidered the possibility that a proposal as to wages
"time rate" instead of "base rate" at this point and other economic factors might help eliminate or
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
narrow other areas of disagreement . Weiss replied
that the Company had considered that and that the
real deadlock was on matters other than wages. He
said that if the Union said that Respondent's con-
tract was satisfactory , subject to agreement on a
wage increase , " the Company would go into execu-
tive session and probably come up with a wage
proposal ." But, he said , the Company thought that
if it made a wage proposal , it could not obtain the
kind of contract it needed " to protect our standard
hour system . . . ." Later in the conference Shapiro
asked if Respondent would agree to an increase of
15 cents an hour . Weiss said he did not think any
increase the Company submitted would amount to
that much but asked if the Union would accept it.
Shapiro said it would . Weiss then asked which
labor-cost items the Union would waive if the Com-
pany did agree to 15 cents . Shapiro asked, "are you
indicating to us that if our total wage proposal was
in the area of 15 cents that it is something the Com-
pany would seriously consider ?" Weiss replied,
"Well, the Company would seriously consider
anything that you proposed , of course; it always
has." Shapiro said that the Company had refused
time and again to make a proposal on wages. Weiss
replied that Respondent 's reason had been ex-
plained and said , " Now what I am trying to find out
from you is which of the other cost items would be
waived if the Union agreed to accept 15 cents?"
Shapiro replied , " you obviously do think it is good
bargaining to offer to sell a pig in a poke." When
Weiss protested that he was merely trying to get a
definite proposal from the Union, Shapiro replied,
"We haven 't had any kind of proposal from you,
definite or indefinite ." Weiss replied by urging that
the Union submit a complete contract proposal,
commenting , " and when we set the two written
documents down side by side we can tell definitely
where and in what respect we are in disagree-
ment
At the ninth conference Shapiro , in answer to the
mediator 's question , said, "I'm willing to become
more definitive about the economic issues which
are basically wages and holidays providing the
Company is willing to negotiate these questions....
If Mr. Weiss would ... say we can reach agreement
on wages and still have the other items open I'll
discuss wages ." Weiss said , " I don't think we can
accomplish a thing that way."
3. Overtime
Article IV of the old contract , entitled " Hours of
Employment and Overtime ," defined the workweek
(section 1), provided for time and a half for work
in excess of 40 hours in any workweek (section 2),
for work in excess of 8 hours in any day, except for
maintenance and shipping department employees
(section 3), and for Saturday and Sunday work ex-
cept for maintenance employees ( section 4 ), and it
specified the method of computing overtime hours
(section 5 ). At the first conference Respondent
submitted a proposed amendment of article IV20
which left intact three of the sections but deleted
the two sections providing for premium pay for
Saturday and Sunday work and for work in excess
of 8 hours in any 1 day . The proposal was
withdrawn without discussion and Respondent's
proposed contract submitted on July 282 restored
article IV as contained in the old contract.
At the eighth conference Shapiro asked what the
Company 's practice was when overtime work was
scheduled for a Saturday with respect to allowing
participation by employees who had missed work
during the week . Tolbert stated that at Welhausen
employees who missed 2 hours or less work would
not be foreclosed from Saturday overtime , but that
during the previous year , as a result of excessive
overtime , he had instituted a rule that an employee
who was absent more than 2 hours during the week
without adequate reason would not receive the
overtime work . The rule had been instituted
without discussion with the Union . Shapiro inquired
what reasons for absence the Company accepted as
adequate to permit an employee to share in over-
time . He said that he did not want to argue as to the
Company's policy, commenting , ". . . I am really
inclined today to accept the Company 's reasons,
whatever they may be , for denying this overtime to
their employees ," and he said that the Union was
willing to leave to the Company's own determina-
tion those reasons that could not be written into the
contract as acceptable to the Company . Tolbert
said that the following reasons would be deemed
adequate: Visiting a doctor , supported by a written
statement ; participation in negotiating sessions;
death in the immediate family ; required appearance
in court; and injury on the job . Manning said that
Western had never set a rule on the matter, but that
he had no objection to such a provision . He said,
"As a matter of fact this clarifies a point and I am
glad to see it." Shapiro said that with that change
article IV was satisfactory . Weiss again urged that
the Union submit a complete written contract
proposal embodying what the Union wanted under
article IV. However , he said , ". . . We agree to try
to write out , add to Article IV something to cover
this subject ...." Summarizing , he said that the
Union had agreed to leave to the Company's deter-
mination reasons other than ". . . doctor , death in
family , court appearance , jury duty.... A negotiat-
ing session ." Shapiro raised the question of discus-
sion of grievances . Weiss concluded the discussion
by saying:
I mean that is a clause that could be muchly
abused and you have got to be very careful in
the contract language in that respect. Okay; we
will try to write something on that.
Weiss' summary for that conference states , " Weiss
"' Resp Exh 5 " Resp Exh 10
TEX-TAN WELHAUSEN CO.
agreed to write something on the above provi-
sions."
The proposed contract submitted by the Union
on October 18 included article IV of the expired
contract with the following addition to section 4:
Employees who are absent for any reason for 2
hours or less during the week shall be fully en-
titled to share in overtime work on Saturday or
Sunday. It is further agreed that employees
who are excused from work for the following
reasons shall be fully entitled to share in over-
time work on Saturday and Sunday:
1. Attendance at negotiations with the
Company.
2. Death in the immediate family.
3. Required appearance in court.
4. Jury duty.
At the ninth conference Weiss objected that the
Union's proposal implied an obligation by the Com-
pany to divide overtime equally, which it did not
agree to. The following colloquy ensued:
MR. SHAPIRO: Do you have a counter-
proposal?
MR. WEISS: Not at this time. We haven't had
a chance to draft it. We got this Monday.... I
mean managment people got it yesterday.
MR. SHAPIRO: YOU said that management
would throw off a proposal on this line because
we discussed it and we agreed to the essentials
of it, and you said the management would draw
up a proposal on it. Now, we attempted to do
that. You find it unsatisfactory.
MR. WEISS: That's right. I will-
MR. SHAPIRO : Now, you tell us you haven't
had time to do this.
MR. WEISS: I mean there's no use being abu-
sive about it.
MR. SHAPIRO : I'm not being abusive about
it. These are the same kind of tactics that you
have engaged in for months now.
MR. WEISS: Here you go off on your old
broken record again . Let me continue. We will
attempt to draw up some such provision as
this, but it will make it clear that the Company
does not contractually guarantee that
everybody gets the same amount of overtime.
4. Vacations
Article VI, entitled vacations, provided in sec-
tions 1, 2, and 3, respectively, that employees who,
on December 31 of any year, had completed 10
months, 5 years, or 15 years of continuous service
and were on the payroll at that date, were entitled
to vacations of 1, 2, or 3 weeks, for which they
were to be paid 2 percent, 4 percent, or 6 percent,
in each case, respectively, of their total earnings
during the year. The article also contained the fol-
lowing provisions:
863
Section 4. Payment for all vacations shall be
made when the vacation begins ....
Section 5. The Company will determine
when vacations are to be taken ....
Section 6. An employee resigning from the
Company for any reason other than personal
health or family health problems shall forfeit
all vacation rights. An employee discharged for
cause shall forfeit all vacation rights.
Section 7. An employee who takes a vaca-
tion with instructions to return to work, and
who does not return to work, will be con-
sidered as having resigned from the service of
the Company, effective the last day of vaca-
tion.
Section 8. No allowance will be made for
holidays falling within a vacation period.
Section 9. An employee laid off for sixty
(60) calendar days or more will not receive va-
cation pay.
Section 10. An employee absent from work
for his own convenience in any vacation year
for more than two hundred hours (200) shall
lose one-half of his vacation pay and for more
than two hundred eighty hours (280) shall lose
all of his vacation pay.
Section 11. If an employee who has had ten
(10) months service during the current calen-
dar year, on December 31 of any such year,
but is not on the payroll on such December 31
due to a layoff or authorized leave of absence,
is re-employed or returns to work within sixty
(60) days after his layoff or within sixty (60)
days after the beginning of his authorized leave
of absence, and is on the payroll at the start of
the designated vacation period for his depart-
ment , he shall be entitled to his vacation.
At the first bargaining conference Respondent
submitted as a proposal" a verbatim copy of all 1 1
sections of the old article VI except that it
eliminated from section 6 the eight words, "other
than personal health or family health problems."
Weiss explained that this was the only change
proposed in the article and that it would eliminate
the difficulty which had arisen under the old con-
tract in that inquiry had had to be made as to
whether health problems were sufficiently serious
to justify resigning . The proposal was not discussed
further but in Respondent's proposed contract sub-
mitted on July 28 the eight words were restored.
At the eighth conference Shapiro asked, with
reference to section 6 of article VI, whether a per-
son off sick was deemed to have resigned. Weiss
said that such a person would be given a leave of
absence, ". . . I guess you would call it a temporary
resignation." He suggested that the Union clarify
the matter in the contract proposal it was to submit
and that the Company would consider it. Shapiro
replied that before submitting anything he had to
" Resp Exh 6 4' Resp Exh 10
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
determine current company practice. He next sug-
gested that section 7, relating to failure to return
from vacations, be amended to make provision for
persons who were prevented from returning on
time by accidents and the like, Weiss said it should
be put into the Union's contract proposal; that he
thought it unnecessary, but that Respondent might
accept it. Shapiro proposed the elimination of sec-
tions 9 and 10, relating to extended layoffs and
absences. He argued that since vacation pay was
based on earnings, employees were automatically
penalized sufficiently for absence without those
sections. Weiss said that an employee off on leave
of absence because of illness , would be off "for his
own convenience-at least as far as the Company is
concerned.... I mean you're dealing with vacation
rights...." He argued that a vacation, according to
Respondent's philosophy, was to reward people
who had worked and were tired and needed rest, or
to be "recharged"; and that if they had not worked
for any reason, their vacation should be affected.
Shapiro asked if Respondent intended by its
proposal that any employee absent the specified
hours for any reason whatsoever should be penal-
ized as provided in section 10. Weiss replied: "If
they are absent, maybe it should say for any
reasons, not simply for their own convenience ....
I would be willing to leave out `for his own con-
venience' .... And I make that as a counter-
proposal." Shapiro commented, "You've made a
counterproposal to your own proposal, is that
right?"
The Union's proposed contract submitted on Oc-
tober 18 modified article VI as follows: (1) it
eliminated from sections 1, 2, and 3 the words "and
is on the payroll on that date"; (2) it eliminated
sections 8, 9, 10, and 11; and (3) it added at the
end of section 7 the words "except in the case of an
emergency." At the ninth conference Weiss made
no comment about the addition to section 7 but he
objected to the proposed eliminations . He pointed
out that section 11 had been a compromise on the
issue and that under it employees not on the payroll
on December 31 would receive their vacations if
reemployed or returned to work within 60 days;
and that the disqualifying provisions of sections 9
and 10 had not caused any particular problem. He
also said that Respondent had been working on a
simplification of the vacation article but had not
reached agreement, and "Sometime in the future
we might be able to submit a vacation clause which
would maybe simplify the existing clauses."
5. Holidays
The expired contract provided in article VII for
six recognized holidays (section 1) and for premi-
um pay for work performed on those days with a
minor exception (section 2). The Union's initial
proposals included as item 2 five paid holidays. At
the second conference the Union handed Respon-
dent the draft of a proposed new article VII which
left section 1 of the old contract unchanged except
to provide that the recognized holidays be paid
holidays. Respondent objected that the proposal
would increase labor costs, to which at that time it
was not prepared to consent. On July 19, at the
fifth conference, Shapiro commented that Respon-
dent's employees had celebrated July 4 by losing a
day's pay, whereas a competitor of Respondent's in
the same town had granted six paid holidays. Shawd
replied that the Company "was not sold on increas-
ing wages and benefits." At the sixth conference
the Union changed its proposal from five to six paid
holidays, at the same time withdrawing its proposal
for 1 week's paid sick leave. The Union pointed out
that Respondent had started paying for holidays at
its plant in Fort Worth. Weiss said that that opera-
tion was different and faced different problems. He
insisted that until agreement was reached on the
"non-economic" parts of the contract the Company
could not agree to any increase in labor costs. At
the eighth conference Weiss again stated that posi-
tion and also said that the Company believed that
most of the employees preferred increased wages to
fringe benefits.
The Union's contract proposal of October 18 in-
cluded a provision for six paid holidays. At the
ninth conference, on October 20, Weiss said that
the proposal was unsatisfactory, commenting that
the Company felt it advisable to keep labor costs in
line in view of competition and to attempt to limit
as far as possible the cost of fringe benefits, that
one of the great hazards that management had was
building up too many fringe benefits which cost
money and came to be taken for granted, and that
Respondent considered it advisable to place any
labor-cost increase in wages rather than fringe
benefits. Shapiro asked if Respondent's opposition
to paid holidays was based not on cost but on prin-
ciple, and whether Respondent would grant them in
lieu of part of any wage increase it might eventually
be willing to give. Weiss said that although it was
not solely a matter of cost, it was a matter of
management judgment as to how best to spend the
money represented by labor cost.
6. Ventilation
In its initial proposals the Union included as item
8, "Provide adequate ventilation in work rooms."
At the first bargaining conference Weiss asked if
there were problems in the area of ventilation.
Shows asked for an explanation, stating that the
Company had had no complaints. Two committee
members said that more fans were needed at their
work places, and that some employees brought
their own fans. Weiss said, "Doctors tell us now it is
real good for us to sweat." Employees suggested
that fans be moved and that stacked boxes blocking
air circulation be removed. Weiss said:
I have found from experience it is impossible
to satisfy, particularly women in our office ...
they are constantly complaining that it is too
TEX-TAN WELHAUSEN CO. 865
hot or too cold. And every girl in our office has
a sweater there, and of course the men are-
usually complain it is too hot. They turn it
down to please the girls and the men complain
and if they turn it up to satisfy the men, the
girls complain and I have solved it by just
telling the girls to bring sweaters and they just
put on the sweaters.
Elwood replied, "I want to make it clear we did not
make a proposal for air conditioning." Weiss closed
the discussion by saying that the company execu-
tives would check into the situation and find out
what could be done without too much cost, and
that the Company did not accept the Union's
proposals.
At the fourth conference, 2-1/2 months later,
Respondent's officials reported that they had not
got round to checking into the ventilation problem.
Shapiro discussed the construction of the
Saddletree Shop and asked Respondent's officers if
anything could be done. Weiss said that Respon-
dent should get a ventilation engineer and take
temperature readings. He said, "People do better
work when they are comfortable .... We don't
need a contract." Shapiro said he did not know
whether the Union would accept article X without
something on ventilation. Weiss repeated at length
his comments on complaints by girls in his office
about the air conditioning. Shapiro also requested
Respondent to check the accuracy of reports that
employees had been ordered to buy their own fans.
Respondent's officials said that the uncontrolled
use of individual fans caused safety hazards and
that they were going to "try to engineer the place
better." After further discussion, including com-
ments by committee members about their own hot
and stifling working conditions, Shapiro suggested
that article X include a clause, "that the Company
will continue to make every reasonable effort to
provide adequate ventilation in the summer and
adequate heat in the winter." Weiss objected that
there are always disagreements about what is
adequate, but said, "We will consider that."
The Union's proposed contract submitted on Oc-
tober 18 added at the end of section 1 of article X
the following: "The Company will provide adequate
heat and ventilation at all times." At the ninth con-
ference Weiss said that under that clause the
Union, through arbitration, could compel the Com-
pany to install air conditioning where not economi-
cally feasible. He said, "there is no problem .... It
was pointed out at one of the earlier meetings that
plenty of heat and plenty of ventilation, so an un-
necessary provision ...." and he proceeded to tell
about what he termed a ridiculous decision by a
senile arbitrator, selected through the Federal
Mediation and Conciliation Service, on a grievance
about division of overtime. Shapiro said that if a
possible demand for air conditioning was the Com-
pany's objection the Union could modify its
proposal. Weiss said that that was only one exam-
ple, that the Union might come up with some un-
reasonable ventilation plan. A committee member
commented that nothing had been done about ven-
tilation in the Saddle Shop, where the temperature
sometimes reached 110 degrees at night. Manning
said that the Saddle Shop had fans but that not
much could be done under the existing conditions,
and that there was not enough space for more fans.
Another employee, Bluda, said that merchandise
stacked high near his department had been moved
once to allow ventilation, but that it was again
stacked to the ceiling, cutting off all breeze.
Manning replied that that "was never actually
brought to my attention, . . ." and when Bluda re-
minded him that he had spoken to him about it in
the shipping room, Manning answered, "That
wasn 't the proper method of handling things. You
should have went to Jimmy ...... Tolbert said that
that was the first time he heard that the merchan-
dise had been stacked up again and he said, "we
will have to try to knock it down again ." Manning
also reported that the Company had found that a
top vent in the Saddletree Department was not
working and that the condition had been corrected
the next day. Company officials pointed out again
that individual fans were hazardous. Shapiro said,
"... I certainly don't want to get into the question
of how and why the particular methods you use to
provide adequate ventilation." Weiss commented
that in his office the women complained that it was
too cold and the men that it was not cold enough.
He said conditions at Tex-Tan were pleasant com-
pared to working on the highways or in a boiler-
room. Shapiro said, "We are agreeable to any kind
of general language which will indicate that the
Company is responsible for ventilation ...." The
mediator asked whether the insertion of the words,
"economically feasible," which someone had used,
would be an area of settlement. Weiss objected that
that was too general and that binding the Company
with such a provision "could get into all sorts of
sticky problems."
7. Seniority
Article XI of the old contract, entitled "Seniori-
ty," provided in part as follows:
Section 1. The Company recognizes seniority,
which shall be based upon the length of con-
tinuous service with the Company according to
the Company's records, as and important fac-
tor to be considered by it in its promotions,
demotions, layoffs, and recalls after layoffs. It
is understood, however, that the Company may
also consider ability to perform the job, effi-
ciency, capability, and performance of duty in
the past.
The article also provided that the Company would
furnish the Union with the seniority list every 6
months and that seniority was to be by department,
but that if a job was transferred to another depart-
ment an employee transferred with the job would
have his seniority transferred to the new depart-
354-126 O-LT - 73 - pt. 1 - 56
866 DECISIONS OF NATIONAL
ment. The final clause of section 7 of the article in-
cluded the following proviso:
Provided that in the event of a layoff, an em-
ployee with more than 5 years seniority may
make application to the Company for an
available, vacant job in another department
and if, in the opinion of the Company, the em-
ployee may be given a job in another depart-
ment without loss of efficiency or fairness to
other employees, a job in such other depart-
ment may be permitted ....
At the second conference the Union proposed
the following changes for section 1, article XI, and
for the proviso of section 7:
Section 1. The Company recognizes seniority,
which shall be based upon the length of con-
tinuous service with the Company according to
the Company's records, as the factor to be
considered by it in promotions, layoffs, and re-
calls after layoffs. It is understood that the
Company may also consider as an important
factor, ability to perform the job.
*
Section 7. . . . provided that in the event of a
layoff, an employee with more than two (2)
years' seniority shall be permitted to exercise
his accumulated company seniority to displace
the least senior employee in another depart-
ment provided such employee is reasonably
qualified to perform the job ....
These proposals were discussed at length at several
conferences, but both parties maintained their
respective positions. At the fourth conference
Shapiro brought out through Tolbert that a man
transferred from one department to a different job
in another department would, under the old con-
tract, lose his seniority even though the transfer was
for the convenience of the Company. Shows, how-
ever, stated that so long as the transfer was within
Welhausen and not to or from Western, he would
carry his seniority with him. Shapiro asked if that
could be stated in the contract and Weiss said that
he thought a provision like that could be worked
out. In its proposed contract submitted on July 2824
Respondent retained article XI of the old contract
unchanged in substance, except that the 5-year
requirement of the proviso clause of section 7 was
reduced to 3 years and except, further, that the
proposal included the following new section:
Section 9. The only other exception to the
rule that seniority shall not be plant-wide but
by departments only is as follows: In the event
an employee is transferred to another depart-
ment by the Company for the convenience of
the Company, he may be allowed to keep his
seniority that he has accrued in the department
from which he has transferred; provided, how-
ever, that the application of this provision in
LABOR RELATIONS BOARD
the opinion of the Company will not cause
undue injustice to the seniority rights of the
employees in the department to which the
transfer is made.
The Union's proposed contract submitted on Oc-
tober 18 embodied its proposal as to seniority made
at the second conference, which has already been
described. At the ninth conference, Shapiro stated
that the proposal provided for departmental
seniority down to the point of the layoff of an em-
ployee with more than 2 years' seniority reasonably
qualified to perform the job in another department.
Layoffs of employees with 2 or 3 years' seniority
were rare. Weiss objected that under the Union's
proposal the Union could "bump all over any of the
factories . . ." in the event of layoff, whereas under
Respondent's an employee had to have 3, not 2,
years' seniority and even then could merely apply
for a vacant job in another department.
8. Arbitration
Article XVI, entitled "Arbitration," provided
that any grievance remaining unsettled after the
grievance procedure set forth in article XV could
within 10 days be presented in writing to two ar-
bitrators, one appointed by the Company and the
other appointed by the Union, and that if the two
arbitrators were unable to agree they should choose
a third, disinterested, arbitrator and the three
should settle the controversy. The article further
provided as follows:
Section 2. The power of arbitrators herein
provided for shall be comparable to that of a
United States Court of Appeals reviewing a
decision and order of the National Labor Rela-
tions Board and if the action taken by the
Company or the decision made by the Com-
pany is supported by substantial evidence, such
action or decision shall stand, the arbitrators
having no power to or authority to disturb it.
Arbitration was limited to the matters enumerated
in article XV as subject to the filing of grievances
"and within the framework of this agreement ...."
The Union's initial proposals included "Improved
grievance and arbitration procedure to provide for
a method of selecting an impartial arbitrator." At
the first bargaining conference, when Elwood
started to explain the Union's position, Weiss inter-
rupted him, saying:
... Our position is that the grievance and ar-
bitration procedure in the existing contract ap-
pears to work very well .... [T]he contract
has been in existence for two years and I think
that there has only been one case that went to
arbitration .... I think that is a pretty good
batting average. And it sort of speaks pretty
well of the grievance and arbitration procedure
set forth in the contract. Apparently the parties
14 Resp Exh 10
TEX-TAN WELHAUSEN CO.
were able to work out pretty well most of their
grievances without any trouble. I can't recall a
similar case involving as many employees as
are involved here, where in a two-year period
you only have one arbitration. It is kind of a
world record. . . . When you have got
something working as good as that is, don't
mess with it.
Elwood explained that the Union's proposal had to
do only with the arbitration procedure, not the
grievance procedure. Weiss asked the Union to
"submit us the specific proposals for the changes
that you want, we will be glad to give them con-
sideration ...." He said:
. The Company ... takes the position that it
is wise and advisable to have an arbitration ...
decided by local people-people in this area-
that know the conditions and know the circum-
stances and know local conditions and they are
in a better position to decide these things fairly
and reasonably than somebody from way off.
They have a personal interest in seeing that
Tex-Tan keeps going, that it provides city em-
ployment out here, that the people have good
jobs and they have an interest in settling these
things in a fair way so they leave no bad taste
in anybody's mouth....
Elwood urged that the agreement have a fair
method of choosing the third arbitrator when the
parties reached an impasse. Weiss replied that the
American Arbitration Association and the Federal
Conciliation Service, proposed by the Union, were
not acceptable but offered to consider them or any-
body else the Union proposed. He objected to hav-
ing as arbitrators people with experience in labor
relations work. He commented that arbitrators "ap-
pointed" by the American Arbitration Association
and the Federal Mediation Conciliation Service, in
order to avoid the possibility of being rejected in
the future as prounion or proemployer, decided
cases first for one side then for the other, irrespec-
tive of the facts, and that many were "senile" and
"just couldn't understand...... Elwood pointed out
that Weiss had failed to comment on the need to
provide a way out of an impasse. Weiss said that
such a provision was unnecessary and that the
method prescribed in the old contract was used in
business transactions every day. However he also
said, "We will consider any agency that you pro-
pose," and, "We will consider any proposal ...."
At the second conference Elwood presented a
proposed new article XVI, which eliminated section
2, the substantial evidence section of the old con-
tract, and revised section 1 so as to provide for the
naming of a permanent arbitrator in the contract.
He said that that was an alternative to using the
American Arbitration Association, which the Com-
pany had objected to. He commented that section 2
was unsatisfactory because it was "lawyers' lan-
guage " which most arbitrators would not know how
to apply; and Nelson commented, "It, in effect,
takes all power away from the arbitrator."
867
Fryburger replied that the language had precise,
well-established meaning which the parties' counsel
could make clear to an arbitrator; and that the ar-
bitrator would have power, since the evidence sup-
porting the Company's decision had to be substan-
tial. He said that the section was needed as a
"cushion on the power of the arbitrator." At the
fourth conference, when Shapiro introduced the
subject of arbitration, Weiss commented, "Here
again, the proof of the pudding is in the eating. We
have had the existing arbitration clause for 2 years
and we have had one arbitration." Shapiro replied,
"We have been unable to use the arbitration clause
because we have been unable to agree upon an ar-
bitrator ..." and he said that the Union was willing
to agree to any impartial means to select an arbitra-
tor, not only those it had already suggested. Weiss
said, referring to a pending grievance, that the com-
pany arbitrator had suggested 20 names as the third
arbitrator on the grievance, but "apparently the
Union just, probably for the purpose of these
negotiations, just arbitrarily refused to select any of
those people and these people are prominent." He
denied Shapiro's assertion that the 20 people in
question were biased towards management, and he
started to go through their names. He named a
retired merchant, a clergyman, a man "with" the
Yoakum Federal Savings and Loan Association, the
principal of the Yoakum High School, the manager-
owner of a Yoakum five- and ten-cent store, the
president of Yoakum National Bank, and the head
of a local insurance company. The union represen-
tatives were laughing and Shapiro explained to
Weiss, "Any body in this room, with the possible
exception of yourself, knows that these people are
biased towards management ." Weiss and Shows
protested at this assertion, particularly with respect
to the clergyman. Weiss went on to say that the
union arbitrator had finally said that he would ac-
cept a lawyer from one of the big Houston law
firms, but that when Respondent nominated such a
man, the Union rejected him. He said, "I mean if
you are going to be unreasonable about it, well
naturally, you are not going to arrive-I think the
company arbitrator ... himself, is a very reasonable
man ...... At the fifth conference, with Weiss ab-
sent, Shapiro and Elwood discussed the matter with
Shawd, who protested that no one could have any
complaint about the clergyman suggested by the
Company. Shapiro asked what the complaint was
about the clergyman nominated by the Union to
select the third arbitrator. Shawd replied that that
clergyman was notoriously biased. Shawd, without
making a proposal, broached the idea of a rotating
panel of arbitrators. The union representatives said
that the panel idea would be acceptable, but ob-
jected to limiting the arbitrators to the Yoakum
area. Shawd said, "Now, my real thinking about ar-
bitration is, get the doggone thing, get the contract
so much in black and white so that both sides un-
derstand it and then ... there is practically nothing
that you can think of, left to go to arbitration."
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shapiro said that he agreed with Shawd, but added,
"But many times when we have specifically
proposed things ... designed to ... [what] you
have said, you don't need it .... Even though you
are doing it now [you have said] you don't need it."
When the union representatives pointed out that
Weiss had rejected a proposal that the Union have
the right to bring in a timestudy man when there
was a dispute as to piecework, Shawd, who ap-
parently was unaware that Weiss' argument had
been that the Union had the right without the
provision, replied that it would invite "a lot of
meddling," and that its omission constituted
specific provision. With respect to section 2 of the
old contract, the substantial evidence section,
Shawd said that it was needed in order to ensure
that the Company would be managed by the Com-
pany and not by arbitrators who did not understand
the Company's operations.
At the eighth conference Shapiro said that the
lack of an effective endpoint to the grievance
procedure made it fruitless to attempt to negotiate
a grievance with the Company. Weiss replied that
there was an arbitration pending at that very time
in which a third arbitrator had been agreed upon by
the Company and the Union. Shapiro replied, "The
third party was agreed to reluctantly by the Union
because we finally had to pick a company lawyer in
order to satisfy you."
The Union's proposed contract submitted on Oc-
tober 18 included the arbitration article of the old
contract with two changes: It eliminated the "sub-
stantial-evidence" section, and it added at the end
of section 1 the sentence, "Should the two arbitra-
tors representing the Company and the Union fail
to agree upon a third disinterested arbitrator, the
third arbitrator shall be designated by ." At
the ninth conference Weiss stated that that
proposal was unsatisfactory.
9. Miscellaneous subjects
Prior to the first bargaining conference the Union
learned of a new operation of Tex-Tan, housed in a
different building in Yoakum from the rest of the
plant and known as the Imperial-Hereford Saddle
Factory. Respondent's departments were referred
to interchangeably as departments or factories. Im-
perial was not a separate corporation but was Divi-
sion 15 of Western. At the opening of the first bar-
gaining conference the Union inquired whether
"Imperial Leather" was a division of Tex-Tan
Leather. Weiss replied that it was a newly
established company, "related to Tex-Tan" but
located at a different place. He said that there was
question in his mind whether it was in the unit and
suggested that it be deemed not in the unit. The
Union stated its position to be that Imperial was in
the unit and that the Union was bargaining on be-
half of those employees. Weiss said, "We can keep
that open." At the second conference Elwood com-
mented that the Union wanted Imperial listed
among the departments in article XI dealing with
seniority. At the third conference Elwood stated
that he wanted the question clarified. Philip Wel-
hausen stated that Imperial was "an operating divi-
sion of Western." Fryburger said ". . . we will put a
hold on that." He said that the Company was not
refusing the Union's proposal but was still exploring
the question. At the fourth conference Shapiro
raised the question again . Weiss replied that Im-
perial was not part of the contract unit and that he
did not know whether the Company had reached a
decision as to including it, since there had been no
election. Shapiro asked when a decision could be
expected in view of the fact that the Union had
been ". . . asking this now for the better part of
three months." Weiss said, "Well, we will give you
a decision in due time." Shapiro pressed the
question insistently but was unable to extract any
kind of commitment as to when the Company
would give its answer and finally gave up and went
to something else. At the fifth conference, with
Weiss absent, the Union again asked for the Com-
pany's answer. Shawd said that the Company had
question about it and wanted to allow Weiss to
"come up with a definite answer on it," since he was
an attorney. Shapiro said, "Frankly it appears to us
that Mr. Weiss was playing games with the
question. I don't look at this as a bargaining point."
Shawd agreed that it was not a bargaining point,
but he refused to give an answer. Pressed as to
whether an answer could reasonably be expected at
the next meeting, Shawd said that he would rather
stand by Weiss' promise of an answer " in due time"
but ultimately said that he thought the answer
could be given within a week. Three days later, at
the sixth conference, Weiss said, "The Company is
disposed, willing to include Imperial Saddle in the
unit .... He said that it was physically more
separated from the rest of the plant than other de-
partments not in the plant proper, but said "the
Company has decided to, in an effort to reach an
agreement with you that they will make no issue of
the matter and we will just put it in . . . ." Later
during the conference, after the Company persisted
in its rejection of the Union's various proposals,
Downer demanded, "Is there anything that you
have to offer?" Weiss replied that the Company
had offered to extend the old contract and,
moreover, had "made what apparently is an impor-
tant concession to you on Imperial, giving the
Union 30-odd potential dues payers." Downer
replied that the Union did not consider the Com-
pany's acquiescence a concession.
In its initial proposals the Union included as item
4, "District 5 Health and Welfare Insurance as per
attached schedule of benefits ...." At the first
conference its representatives explained what they
deemed to be the advantages of their plan over the
Company's. They requested information about the
cost and coverage of the Company's insurance
plan, which was furnished promptly by the Com-
pany. The complete contract proposal submitted by
TEX-TAN WELHAUSEN CO.
the Union on October 18 incorporated the in-
surance article of the old contract unchanged.
At the first bargaining conference, when Weiss
went through each article of the old contract to
identify the areas of disagreement, the union
representatives stated that articles V, XVII, and
XVIII, entitled, respectively, "Management,"
"Scope of Agreement," and "Non-discrimination,"
were satisfactory. At the fourth bargaining con-
ference when Weiss repeated the process, Shapiro
stated as to article V, "If you said the union ap-
proved it, I have no objection," but he added, "It
looks like a clause was written by the National As-
sociation of Manufacturers."25 When Weiss came
to articles XVII and XVIII, Shapiro stated that they
were not satisfactory. As to article XVII he asked,
"How can I say this about the scope of the agree-
ment until we know what the agreement is?" As to
article XVIII, he said that section 2, prohibiting the
threatening, intimidating, or coercing of employees
should apply to the Company as well as to the
Union. At the eighth conference, when Weiss, over
union objection, again repeated the article-by-arti-
cle process, Shapiro stated that section 3 of the
management article was to be held for discussion,
since under the law a union had the right to
negotiate as to the suspension of operations. He
also proposed that section 4 of that article be
amended to provide that any change, modification,
or amendment to the company rules and regula-
tions be negotiated between the parties. Weiss
raised question as to how an agreement could ever
be reached if the Union, after agreeing to a clause,
withdrew its agreement. He said that section 4 was
fair and the Company would stand on it. Shapiro
stated that the scope-of-agreement article might be
satisfactory but that it required discussion; but he
took the same position as previously with respect to
the "non-discrimination" article. In its complete
contract proposal of October 18 the Union
adopted, unchanged, the language of the old con-
tract with respect to the articles on "management"
and "scope of agreement," but provided in section
2 of the "non-discrimination" article that neither
the Union nor the Company would coerce any em-
ployee into joining or not joining the Union. Weiss
insisted that the change was unnecessary since the
matter was covered by law.
At the ninth conference Weiss proposed a new
article, entitled, "non-waiver," reading as follows:
It is understood that the Company has in the
past and may from time to time in the future
for humanitarian business or other reasons
waive requirements for benefits and privileges
under this contract and grant employees
benefits which under the strict terms of this
contract they would not be entitled to. It is
The management-prerogative clause, among other things, made the
Company the "exclusive fudge" of all matters pertaining to places of busi-
ness and contracting or subcontracting work, and gave the Company the
"unrestricted right and privilege to suspend or cease, at its discretion, the
operation of such plant without any liability to the employees " It
869
specifically understood and agreed that no
such waiver or deviation from the strict terms
of this contract shall in any way bind the Com-
pany or in any way change any of the provi-
sions hereof, and it is specifically understood
that no such waiver or deviation from the strict
terms of this contract by the Company shall be
construed as to establish any practice in any
way requiring the Company to grant similar
waivers or to make similar deviations in the fu-
ture. It is the intention of the parties that all
such waivers and deviations shall at all times
be and remain purely discretionary with the
Company.
Shapiro commented, " It means that the Company is
asking for complete right to discriminate against
anybody they choose or to favor those whom they
choose." Weiss said that that was a misrepresenta-
tion of the provision, and that the Union's position
would prevent the Company from exercising a hu-
manitarian attitude as in the past. He said that ex-
ceptions to the rules would be made only in "very
unusual cases ." Shapiro said that all that needed to
be said was, "Fair and equal treatment for all em-
ployees." He pointed out that the proposed clause
said nothing about " unusual " cases and said that
the Company allocated to itself the complete and
unilateral right to decide.
10. Checkoff and other union security
The last item on the Union's initial proposals was
"10. Checkoff of union dues." At the first con-
ference Weiss, going through the Union's initial
proposals, said, ". . . on the checkoff, the Company
feels . . . that that is a union matter in which it
should not become involved and it does involve
some expense to the Company to set up another
deduction. It would just rather leave the matter of
dues to the union member and his union " The
union representatives said nothing.
The checkoff proposal was next mentioned 5-1/2
months later at the afternoon session of the eighth
conference, when Shapiro called attention to it and
said that the Union would listen to any kind of
proposal the Company might have on any form of
union security. Weiss replied that the Company had
no proposal. He repeated the arguments made at
the first conference and added that the Company
did not feel that it should be called upon to exercise
compulsion on the union members. Shapiro replied
that no compulsion was asked for and that the
Union's proposal was for a checkoff that was
revocable. Weiss asked how soon it would be
revocable. Shapiro said that that was open to
discussion and asked what the Company proposed.
Weiss said that since the Company did not want to
also provided "Section 2 Any and all rights, powers, privileges, preroga-
tives and authority which the Company had or possessed prior to its having
entered into contractual relations with the Union, are retained or reserved
by the Company, excepting only those specifically and expressly abridged
or modified by this agreement "
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
give a checkoff, it had nothing to propose as to the
term of revocability . He added , " I would be in-
terested in listening to your proposal."
Shapiro asked whether the Company would agree
to an agency -shop clause pending legal determina-
tion as to its validity . Weiss asked , "... are you de-
manding that as a condition to reaching an agree-
ment?" Shapiro said , " Yes; I'll offer this instead,
rather than a checkoff . You've stated your objec-
tions to a checkoff now I said let 's have an alterna-
tive- " After some back and forth discussion
between Shapiro and Weiss , Weldon interposed,
"We are offering this . We are not demanding it-"
Shapiro returned to the question of checkoff.
After bringing out that Respondent did not con-
sider payroll deductions for its Health and Welfare
Plan or its profit-sharing plan compulsory, since the
employee agreed to them, he asked why an em-
ployee could not agree to a checkoff . Weiss replied
that he knew of instances where men signed
checkoff cards in bars while drunk , or under threat
that if they did not sign they would be fired after
Section 14 ( b) of the Act was repealed . Shapiro
said , " In other words , that which you consider to be
good for them is not compulsory . . . ." Weiss asked
why a checkoff was needed , when two years before
the old contract had been agreed to without it. He
asked , "Well, haven 't the people paid their dues?"
Shapiro replied , " I don't think that is any of your
business ." Weiss said that as long as the Union de-
manded a checkoff he was entitled to an answer.
Shapiro asked whether the Respondent would
agree to a union -shop clause in the event Section
14(b) of the Act should be repealed . Weiss replied
that he did not think the clause would be repealed,
and that in any event the Company had been op-
posed to compulsory union membership even be-
fore there was a right -to-work law . Shapiro asked if
the Company had any proposal to make on union
security and Weiss said it did not.
The Union's proposed contract submitted on Oc-
tober 18 included a provision for the deduction
from employees ' wages of dues and initiation fees
when authorized by writing , subject to revocation
"in accordance with the ... conditions as appears
in the authorization ." At the ninth conference, fol-
lowing discussion, the mediator met with the two
groups separately . When they reconvened, he
stated that there were wide areas of disagreement
between the parties and that the Union had a "feel-
ing of urgency to try to conclude this thing." He
asked if the Company and Union would consider
making a "wrap -up offer" for final conclusion of
the negotiations . Weiss said that some of the clauses
involved " very difficult language " and that there-
fore he did not "see how it would be a wrap-up
package ." However , he said that the Company
would be glad to consider a "wrap -up package"
from the Union if the Union wanted to submit one.
Shapiro said that the Union was willing to submit
one if both parties did , but not unilaterally. Weiss
insisted , " I think it would help if the Union would
submit a package proposal ." Shapiro echoed the
statement , substituting "Company " for "Union."
Weiss explained to the mediator that many of the
disputed clauses represented language "dearly
bought by the Company over a period of years, and
the Company is not disposed to give up that dearly
bought language lightly ." He then said that the
Company would be glad to consider " any sort of
package deal " the Union might care to submit and
said that progress had been made by the Union
finally accepting his "proposal and submitting a
complete contract proposal . Perhaps progress
would be made by the Union [just] spelling out,
' We have got to have this . We have got to have this.
We will give in on this ."' Weiss explained that the
Company's refusal to submit a package was a "mat-
ter of bargaining technique ," and that Respond-
ent's best judgement was that it would accomplish
nothing . He said , " We would like very much to get
this thing wrapped up. It would be helpful if we
could hear from the Union their must items, and we
would know to some extent where we stood. We in-
vite a statement from the Union as to the items that
they absolutely have to have on which they will not
retreat at all." Shapiro replied that the Union had
already bargained away too much and would not
bargain away one thing more without buying
something . Weiss said that even if the Company
made a concession it would accomplish nothing,
because , he said " I sincerely believe that Mr.
Shapiro has in mind that unless he gets the
checkoff, he's not going to agree to a contract."
Shapiro replied that he had offered the Company
four different proposals on union security. Weiss
then said that he had had union negotiators call him
off privately and say, "give us the checkoff and you
can write the rest of the clauses ." Challenged, he
admitted that Shapiro had made no such proposal,
but he said , " I would bet a substantial amount of
money ... that one of the must items that Mr.
Shapiro told you privately was the checkoff. If he
did tell you that checkoff was one of the must
items , it's my opinion that the parties are hopelessly
deadlocked on the checkoff issue ." Weiss again
stated that the Company would be glad to hear any
package offer the Union might care to propose and
that the Company would carefully consider it.
11. The Powderly visit
At the seventh conference , held on August 4,
1965, Weiss agreed to allow an independent time-
study engineer to visit the plant on behalf of the
Union to study two jobs on which grievances had
been filed . Downer requested that , in order to ena-
ble the Union to negotiate more intelligently about
wages, the company also have its industrial en-
gineer meet with the Union 's staff industrial en-
gineer and review with him and explain the Com-
pany's work standards program , and that in connec-
tion with that discussion "we would like to have the
right to come into the plant with this time and mo-
TEX-TAN WELHAUSEN CO. 871
tion man and make some study-" Weiss agreed to
the request and suggested there not be any more
negotiating meetings until the studies had been
completed. Downer acquiesced. On August 18
Respondent wrote to the Union that it had been
agreed that a union staff engineer would meet with
McClain to enable the Union to better understand
the Company's incentive plan. About September 15
the Union wrote to Respondent "temporarily
waiving" its demand for a spot check of piecework
jobs by a union timestudy man and requesting that
negotiations be resumed.
On October 11 the eighth bargaining conference
was held. Shapiro stated that it had been agreed
that the Union's staff engineer timestudy jobs and
that the Union would not bring him from Chicago
merely to talk to McClain. He said that he wanted a
clear understanding of what the engineer would be
permitted to do as.well as a firm date, preferably,
but not necessarily, with McClain present. He said,
"We expect him from personal observation and
personal study to determine independently what he
can about your incentive system, with the
assistance of Mr. McClain." Weiss agreed that the
staff engineer could come during the following
week. On October 14 Shapiro wrote to Respondent
stating that Powderly, the director of the Union's
Industrial Engineering Department, would be at the
plant on October 20 to study the incentive system.
His letter closed:
We anticipate that as per our agreement, the
Company's timestudy engineers and records
will be available to Mr. Powderly as a neces-
sary preliminary to the actual study of the vari-
ous jobs throughout the plant.
Powderly spent October 20 and 21 at the plant.
On October 20 he spoke with McClain about
Respondent's system and then, accompanied by
McClain; his assistant , Jemelka; and Neusser, the
shop committee chairman ; he went through the
Western plant and timed some of the jobs selected
by the Union. In some instances the Company
changed operators for purposes of Powderly's tim-
ing. He was furnished no written material but was
instructed as to the various operations by McClain.
In the afternoon they repaired to the office where
Powderly made his computations and then was
given Respondent 's original timestudy sheets for ex-
amination and comparison of results. The next day
Powderly and Neusser made a similar tour through
the Welhausen plant, accompanied this time by
McClain and Koening, who was in charge of
timestudies for Welhausen. About 3 o'clock Pow-
derly had to leave to catch his plane and McClain
directed Koening to give him the standards on the
jobs he had timed without requiring Powderly first
to make his own computations. Because of lack of
time Powderly did not see the Welhausen timestudy
sheets.
There was sharp conflict between Powderly and
McClain as to what material Powderly requested
before making his timestudies. McClain testified on
direct examination that Powderly, before making
his timestudies, requested only the standards but on
cross-examination said that Powderly had requested
the timestudy sheets. He admitted that copies of the
job descriptions on the timestudy sheets were on
cards in the various departmental foremen's desks
but said that he did not offer them or tell Powderly
of their availability because he did not know what
Powderly was looking for. Powderly first testified
that he requested the timestudy sheets and job
descriptions and that he was shown nothing at any
time. On cross-examination, however, having read
his own report on the visit, he admitted having been
shown timestudy sheets.
As Powderly's recollection of his visit was inac-
curate in various details, his testimony that he
specifically asked for the job descriptions cannot be
accepted. However, his testimony that he requested
the timestudy sheets before making his tour was
corroborated by McClain's admission on cross-ex-
amination and by the circumstance that job
descriptions which are usually included on such
sheets are highly important for checking timestu-
dies. It is noted also that Shapiro had made an ex-
press written request that the timestudy records be
available to Powderly "as a necessary preliminary
to the actual study of the various fobs...." It is
found that Powderly did request Respondent to
furnish the timestudy sheets before making his
timestudies and that Respondent refused to do so at
that time.
McClain testified that he refused to let Powderly
see the timestudy sheets in advance because he did
not want him to be influenced in his own studies by
the computations and standards on the sheets. This
explanation has several weaknesses. First, doctored
timestudies would hardly serve the purpose of Pow-
derly 's visit , namely to gather information about
Respondent 's system . Second , even assuming, ar-
guendo, that the Union wanted, and might have
been able, to confuse the negotiations by coming
up with "looser" standards, Powderly could have
accomplished such a result without the aid of
Respondent's studies by rating the speeds he ob-
served any percentage he chose above his true ap-
praisal. Third, if Respondent was concerned with
Powderly's being influenced unconsciously by its
own timestudies, that would run counter to the
basic assumption that an operator's speed can be
rated with fair accuracy by a competent timestudy
man. Fourth, the old contract provided that a union
representative was to have "access to the industrial
engineer 's records on matters concerning the stan-
dard-hour system." The Trial Examiner is con-
vinced that Respondent's sudden concern about
disclosing the standards to Powderly in advance
was not in good faith but was a pretext for refusing
to permit him to make an adequate check in the
limited time he had. Contrary to the assertion in
Respondent's brief, Powderly did not admit that his
findings probably would have been influenced by
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the findings of another timestudy man ;26 what he
testified was, "You don't make timestudies based
on what somebody else is doing. You don't do
that." He explained that the reason he needed the
studies was to ensure that "the conditions under
which the job was performed should be identical. It
should be the same type of leather you are working
on as the other job. In the breakdown of the ele-
ments you ought to have this spelled out so that you
can make your elemental timestudy the same as
what he had made." He also testified that the func-
tion of his department was not to make its own
timestudies but to check timestudies made by em-
ployers.
What Powderly needed in order to get most value
out of his work at the plant was the recorded job
descriptions, which Respondent refused to give in
advance. As a timestudy engineer, McClain was
fully aware of the importance to Powderly of the
job descriptions with their listing of the elements
timed. His testimony that he did not make the job
description cards in the various departments availa-
ble because he did not know what Powderly was
looking for is not credited. Powderly did ask for the
timestudies, which contained the job descriptions.
Even assuming that the oral instructions which Mc-
Clain and Koening gave Powderly were as complete
as those on the job description cards and the time-
study sheets, it is plain that Powderly's task would
have been less difficult if he had had the written
descriptions before him. Moreover Koening's
testimony establishes that the oral descriptions
which he gave Powderly were, as would be ex-
pected, less full and less precise than the listing of
the elements on the job description cards and
timestudy sheets.
Powderly testified that he had been unable to
draw any concrete conclusions from his work at the
Tex-Tan plant since he had had to time the opera-
tions without having the benefit of the job descrip-
tions. Plainly the written descriptions of the in-
dividual elements would have placed Powderly in a
better position to come to grips with the substantial
problem arising from the fact that Respondent's
timestudies often omitted record of the layout of
material when the studies were made and that, as
Schaefer's testimony and Manning's admission at
one of the bargaining sessions established, the
layout was not always static. It found that Respon-
dent's failure to furnish the written job descriptions
to Powderly in timely fashion, namely, in advance
of his timestudies, was not in good faith and was
calculated to impede the Union in its negotiations
concerning piecework rates. It is further found that
Respondent thereby violated Section 8(a)(5) of the
Act. See Alba-Waldensian, Inc., 167 NLRB 695. As
Powderly did not testify that he needed Respon-
dent's standards for the various elements to do his
work, no finding is made that the refusal to furnish
the studies in their entirety was violative of the Act.
C. The Strike
On or about October 18 or 19 the Union held a
meeting to which all Respondent's employees were
invited. Shapiro presided. The employees were ad-
dressed by several union officials, including
Shapiro. Shapiro testified that he informed the em-
ployees that the meeting had been called for the
purpose of reporting on the contract negotiations;
that the Company at no time had attempted to bar-
gain in good faith or even pretend to do "anything
but bargaining on the surface"; that in his opinion
the Company had not fulfilled its legal obligation to
bargain; and that the bargaining committee had met
and recommended that the employees "strike
against the Company's refusal to bargain," which
was the recommendation Shapiro was presenting to
the meeting . Shapiro testified, further, that when an
employee asked, "are we striking because the Com-
pany has not agreed to a wage increase?" he
replied, "no, we are striking because the Company
has refused to negotiate on wages and all the other
items which has been reported to you ...." He
testified that he also said that the strike was recom-
mended on the basis of the Company's failure to
bargain in good faith about wages, holidays, seniori-
ty, and other issues, and not because of the Com-
pany's refusal to grant a wage increase or other
specific demands. He said that another employee
asked "how much will we get if we win the strike?"
and that he replied that they were not striking to
get anything except to get the Company to bargain
in good faith. He said there was also discussion
about the possible length of the strike and strike
benefits. He testified, further, that he said, "I call
for the following motion: To authorize the negotiat-
ing committee to call a strike against the Com-
pany's refusal to bargain in good faith at such time
as they consider it necessary"; and that an em-
ployee rose and said, "I make the motion that we
accept the recommendation of the negotiating com-
mittee to authorize them to call a strike." The mo-
tion was passed with few dissenting votes.
On November 4 or 5 a meeting of 60 to 70 em-
ployees active in the Union, including representa-
tives from each department, was held at the union
office. Shapiro testified that he stated at the meet-
ing that many workers would raise questions with
those present as to what the Union's demands were
e" The transcript on page 402 quotes Powderly as saying, "If there was a
difference it would have been influenced by something that the other
timestudy man had done - The context makes plain that an interrogation
point belonged at the end of the sentence Powderly, who was perplexed at
counsel 's suggestion, was merely repeating the latter 's question to make
sure that he had heard aright When counsel answered "Yes" to Powderly's
question, Powderly asked, "What's the something, I don't follow " The
statement in Respondent's brief that Shapiro admitted that Powderly's stu-
dies might have been influenced by knowledge of the prior findings is based
on a misreading of the evidence Shapiro was testifying not about Powderly
but about Rolon, who did not use a stopwatch and who, therefore, took
pains not to see Respondent's standards in advance Rolon found Respon-
dent's standards too low Powderly testified that Rolon's system was un-
suited to Tex-Tan's operations
TEX-TAN WELHAUSEN CO 873
and that it was the obligation of everybody at the
meeting to make it clear to employees when those
questions were asked that "We were not striking
for any specific demands, that we were striking only
because of the Company's refusal to bargain in
good faith with the Union." He testified: "I said I
wanted to impress this upon them, because this
might become an important issue in the future. I
told them, further, that we had filed a charge with
the National Labor Relations Board alleging that
the Company had refused to bargain with the
Union in good faith ... and that we had to be very
careful in all of our discussions with workers, and
elsewhere, to make this point, that the purpose of
the strike was against the Company's unfair labor
practices, their refusal to bargain in good faith. I re-
peated this several times; so did other members of
the negotiating committee; so did speakers from the
floor." A motion was passed to declare the Compa-
nies on strike as of midnight, November 7. The
strike did take place at midnight November 7, and
picket lines were set up shortly thereafter.
D. The Negotiations During the Strike
On December 3, 1965, on call by the mediator,
the parties met for the 10th bargaining conference,
the first since the inception of the strike. Shapiro
asked whether there was anything in the current
union proposals for changes in the old contract,
many of its proposals having been withdrawn or
modified, to which Respondent would agree. Weiss
replied that Respondent had already embodied
many in its own proposed contract. Shapiro chal-
lenged Weiss to point to any, other than the inclu-
sion of Imperial Leather in the recognition clause,
and Weiss enumerated certain articles and section
numbers. He refused to describe the alleged
changes, arguing, "The contracts speak for them-
selves." A comparison of the two contracts,
General Counsel's Exhibit 3 and Respondent's Ex-
hibit 10, shows the following with respect to the
clauses designated by Weiss: article II (recognition)
was changed to include Imperial Leather; article III,
section 7, was the new section on retiming, already
described, starting out, "Without in any way limit-
ing the Company's authority set forth herein and
purely by way of explanation ..."; article III, sec-
tion 8, was a new section reducing the wages of
some probationary employees which had been
proposed by Respondent but never accepted by the
Union; article VI (vacations) had no changes; arti-
cle XI (seniority), section 8, allowing some em-
ployees being laid off to apply for vacant jobs in
other departments, was changed so as to cover em-
ployees with 3 years' seniority instead of 5 years'
seniority as provided in the old contract; article XI,
section 9, allowing employees to retain their
seniority when transferred to another department
for the convenience of the Company, was a new
provision; article XIII (profit-sharing trust) changed
the words, "revised profit-sharing trust agreement
of 1961," in article XIV of the old contract to, "its
profit-sharing trust agreement now in effect"; arti-
cle XIII of the old contract (pension and retirement
plan) had been eliminated as obsolete at the start of
the negotiations by mutual consent since the plan
had been merged into the profit-sharing trust.27
Weiss announced that the Company would even-
tually submit a proposal for a wage increase not-
withstanding its strong bargaining position after
successfully withstanding the strike, and not-
withstanding that, on the basis of the employees' in-
crease in real take-home pay, it could justify a
refusal to grant any wage increase at all. He said,
however, that purely as a matter of "bargaining
technique" it would not make such a proposal until
the issues around the seniority clause, the grievance
clause, the arbitration clause, "the matter of pro-
tecting the Company's standard hour system," and
the management clause were resolved.
Shapiro said that he had a new proposal to make
on arbitration. Before he could make it Weiss sug-
gested a provision that if the parties failed to agree
within 60 days on a third arbitrator or on settle-
ment of a grievance, the Union for a period of 20
days after such 60-day period have the right to
strike on the issue of the single grievance. Shapiro
said that the Union would consider that proposal
insofar as the arbitration procedure was concerned.
He started to make the Union's new proposal but
Weiss insisted upon interrupting with the reading of
a quotation from a law review article on arbitration
written by a Board attorney. Earlier Weiss had read
an extended legal note describing another law
review article on arbitrators by Circuit Judge
Hayes. Shapiro finally made the Union's proposal,
which was that in the event of an impasse as to the
selection of the third arbitrator, he be selected by
the parties from a panel submitted by the Commis-
sioner of Labor and Statistics of the State of Texas.
Weiss said that Respondent would check on the
Commissioner and give an answer at the next meet-
ing. Apparently the proposal was rejected. The
issue of retiming of jobs and of ventilation evoked
from Weiss responses of a nature similar to those
given before the strike. As to retiming he cited sec-
tion 7 of article III of the Company's July 28 con-
tract proposal, beginning, "Without in any way
limiting the Company's authority set forth herein
and purely by way of explanation," and again
refused clarification, stating some half-dozen times
that the language meant exactly what it said. As to
ventilation Weiss said that there was no problem
and that under the Union's proposal it might de-
mand air-conditioning and when the Union offered
to exclude air-conditioning expressly, he counter-
proposed, "Say that the Company will provide the
" Weiss did not specify which article XIII he was designating as embody-
ing a change proposed by the Union
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same adequate heating and ventilation system that
it has in the past ," a proposal which the Union re-
jected.
The parties arranged to have their next bargain-
ing session on January 25, 1966 . On January 24,
however , Downer and Twedell met with Weiss and
Brockermeyer in Weiss ' office , with the mediator
present . The employee committee was not in-
formed . Downer testified : " Mr. Weiss brought it up
that ` This is an off-the-record meeting ... no com-
mittees are present . . . . It is an effort to see if we
can get together and resolve the issues , and it is not
to be used as public knowledge or information at
any time anywhere ." He also testified that he him-
self made a statement to the same effect.
Downer told Weiss that the strike , pending
charges , "and everything " could be got rid of by
the Union accepting the Company 's July 28 con-
tract proposal with the following changes : a provi-
sion for the appointment of a third arbitrator and
deletion of the substantial evidence section from
the arbitration article ; checkoff; return to work of
the strikers ; clause for leave of absence for union
business ; four paid holidays or , at the Company's
option , an equivalent wage increase ; a 10-cent-per-
hour increase each year for 3 years . Weiss sug-
gested as an alternative to the checkoff that the
Company provide a table on payday where a union
representative could collect dues . The union
representatives rejected the proposal but said they
would accept a revocable checkoff . Weiss told
them that the checkoff would be the " fly in the
ointment " to a settlement . He said that he would
communicate with the company executives and let
the Union know their position through the mediator
before the bargaining session scheduled for the next
day. He requested that Downer be responsible for
the negotiations because , he said , there had been
difficulty between him and Shapiro . The reply given
was, "Subject to you saying this will be an area in
which we can work it out ... we would see to it
that Downer came there with the authority to set-
tle, based on that." The next morning Downer was
told by Kincaid that Respondent had rejected all
the Union's proposals and he left.
At the start of the 11th bargaining conference
Weiss said : " Downer, where is he? I don't see him
here this morning .... I met with him yesterday.
He said he would be here . He was in town this
morning , I understand. I hoped that he would be
here . We seemed to be making some progress when
we met yesterday." He then handed Shapiro a
proposed schedule of new wage rates for the vari-
ous unit jobs ,2s stating, "This is the Company's
counter-proposal to the proposal made yesterday
by Mr . Twedell and Mr. Downer...." Shapiro
asked whether Weiss had any proposals on other
matters as to which the Union had made proposals.
Shapiro went through them and as to each was told
that there were none . When he asked about seniori-
ty, Weiss replied : ". . . I thought we agreed on that
yesterday .... I mean the representatives of the
Union with whom we met yesterday accepted the
Company 's seniority proposal . That 's no longer an
issue . At least that was our impression when we
came here today . Now, if they are reneging on it,
that 's something else." Shapiro replied that the only
persons authorized to negotiate a contract were the
committee and that any agreement reached would
have to be with them . Weiss said , " I understand
that you ... [ tell] me , then , that we just wasted our
time in meeting with some high officials of the
Union. I am sorry that you put the Company to the
expense involved in negotiating with somebody that
you now say had no authority to negotiate.... I
think that 's bad faith ." The mediator interposed
that he had called a meeting in the hope ,of laying
groundwork for reaching an understanding at the
January 25 bargaining conference ; that it was to be
"off the record " and "exploratory ," and "came to
no avail"; that so far as he was concerned the meet-
ing was "dead "; that the only thing done had been
that the parties had "explored certain areas of set-
tlement and did not reach an understanding"; and
that he had requested the parties to forget the
meeting . He expressed disapproval of continued
reference to the meeting . Weiss said : " We did not
reach an agreement on the contract , but we did
receive a proposal which we thought was a proposal
from the Union which the Company has spent a
great deal of time considering . I mean I spent most
of the day yesterday. I called my clients and they
spent yesterday afternoon . We got down here early
this morning considering this union proposal which
we were prepared to make an answer to this morn-
ing, which I understand-now understand that the
union proposal made yesterday has been
withdrawn . Is that correct...." Shapiro replied: "I
don't know what proposal was made yesterday....
All I care about is what you and Mr . Kincaid agreed
to that there was no agreement of any kind reached
yesterday , so our entire proposal is on the table and
that 's what we have to talk about here , which in-
cludes seniority and everything else." Respondent
at no time denied that it had rejected all the modifi-
cations of the company contract in the Union's
"package."
Shapiro said that the Union would look over
Respondent 's wage proposal . At the third executive
meeting Weiss, with Shapiro absent , stated what he
claimed was the average increase proposed for each
department , giving figures ranging up to 6 . 8 cents
per hour , and he said that with the addition of a 2-
percent supplemental increase , which Respondent
offered that day, its proposal approached the
Union's demand of 10 cents per hour . The record
does not show how Weiss ' figures were computed.
Fineglass testified that Weiss said that the em-
" G C Exhibits 15 and 16, for Western and Welhausen , respectively
TEX-TAN WELHAUSEN CO. 875
ployees' productivity could be improved so that
they could "make out." Shapiro objected later that
under the January 25 proposal a large number of
time workers were given no increase; that the new
rates included some direct cuts in pay, especially,
but not exclusively, in the case of time rates for
piecework jobs, all of which were to be 5 cents less
per hour than the base rates for the same jobs; and
that a substantial number of employees had not
been making standard and thus might not receive
any increase at all. He also said that, disregarding
the foregoing and assuming no change by the Com-
pany in existing standards, the increases at Western
amounted to an average of at most 4-1/2 cents per
hour. He said that he did not have sufficient data to
analyze the Welhausen rates. Shapiro explained on
the witness stand the method he used in making his
computations.
At the second, third, fourth, and fifth executive
meetings several proposals and counterproposals
were made by both sides with respect to various is-
sues, especially wage rates. At the fourth executive
meeting the Union injected the question of the im-
pact of the then pending amendments of the Fair
Labor Standards Act. Weiss proposed that if the
statutory minimum was increased, Respondent have
the privilege of adjusting rates upwards at its discre-
tion . Shapiro objected that that was inconsistent
with the Union's duty to bargain. The Union
proposed that the current spread in Respondent's
wage rates, amounting, the Union said, to about 25
cents per hour, be maintained. Weiss countered
with the proposal for a minimum spread of 15
cents, with the Company having the right to make
further adjustments upwards. Shapiro requested
that the Company put its amended proposal as to
wage rates in writing , which Weiss did by the draft
of a proposed amendment of article III of the con-
tract.29 At the fifth executive meeting Weiss asked
if the Union would consent to placing the Com-
pany's proposal into effect, bargaining to continue
on all matters, including wages. The Union refused
to agree. It proposed that it would terminate the
strike if all strikers were immediately reinstated to
their former jobs. Weiss replied that the question of
the return of strikers was premature until agree-
ment was reached or the strike called off. The
Union withdrew the proposal. Weiss proposed that
the contract embodying Respondent's proposed
wage rates have a 3-year term, with the Union hav-
ing the right to one reopening as to wages on or
after November 8, 1967, by notice on or before Oc-
tober 8, 1967, and to be allowed to strike on 10
days' notice in January 1968.30 Shapiro refused,
saying that the busy season ended at Christmastime
and that a right to strike in January was an empty
one.
E. The Negotiations After the Strike
On June 6, 1966, the Union sent Respondent a
telegram declaring that the strike had been ter-
minated. The 12th bargaining conference took
place four days later. Shapiro was accompanied by
Weldon and a committee. After discussion of mat-
ters relating to the recall of the strikers and their
vacation pay, Shapiro brought up for negotiation
the Union's various proposals as to Respondent's
piecework system. Except for the question of
grievances on the establishment of standards, these
had been omitted from the proposals made by the
Union at the five executive meetings during the
strike. Weiss protested that those matters were no
longer issues, since the Company's proposed con-
tract clauses on those subjects had been agreed to
by the Union. He accused the Union of not being
interested in reaching an agreement. Shapiro an-
swered that nothing had been settled.
When Shapiro came to the filing of grievances on
the establishment of rates, Weiss said, "we are
willing to consider the inclusion among the items to
be grieved about any subject matter including that,
provided it can be worded in such a way that it will
not enable the Union to run the-" Shapiro inter-
rupted and said that Weiss should word it. Weiss
suggested that Weldon draft a clause and Weldon
said that he would try but Shapiro vetoed that, say-
ing, "Mr. Weldon has not gone through the ordeal
of trying this time after time after time with you,
and ... have you sit back in that chair and say
`well, we considered it, and we don't like it and
have you got something else to submit?"' Tolbert
interposed an argument not previously made by
Respondent, namely, that under the union proposal
the standard would not be established while a
grievance on it was pending and Weiss said that he
so interpreted the union proposal. Shapiro said that
that was untrue and proposed that the contract
clarify the matter by providing that during the pen-
dency of a grievance on the establishment of a
piecework standard the standard go into effect
pending the outcome of the grievance. Weiss
reverted to his former position that under the
proposal the Union could file a grievance over
every standard.
At the 13th conference Shapiro proposed that
the contract provide the following, which he told
Weiss Weldon had devised:
... The Company shall have the right ... to
establish and put into effect work standards on
all jobs after study by their time study en-
gineers .... The employee may at any time
after a 2-week trial period at this standard, if
dissatisfied with the standard, submit a
grievance thereon .... The Company will
thereupon recheck the operation ... to deter-
mine the accuracy of the standard.... If there
is ... no change recommended ... by the
Company ... the department steward ... chief
steward, and the aggrieved worker shall meet
with the Company's timestudy engineer and
2NGC Exh 21 •'°GC Exh 22
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the department foreman ... in an attempt to
resolve the issue. If the issue is still not
resolved at this stage , it shall proceed through
formal process of grievance procedure.
Weiss said that the proposal would be considered
and an answer given at the next meeting.
At the 12th and 13th conferences Weiss repeated
the Company's offer to place the increased wage
rates into effect without prejudice to the Union's
right to bargain for further increases . At the 12th
conference Shapiro refused to agree, saying that
the Union did not consider them as providing for
meaningful increases , but at the 13th conference he
said that the employees were to vote on the
proposal the following Saturday. He made a
proposal modifying Respondent's wage offer which
he said he would recommend to the employees if
the Company accepted it, so that the issue of wage
rates would be disposed of. Weiss said that it would
be considered by the Company. Shapiro asked
about the possibility of paid holidays. Weiss replied
that if the Union made a proposal agreeing to ac-
cept the Company's contract proposal in toto, with
one or two paid holidays, with the Union accepting
the company proposals on management rights, the
grievance clause , arbitration clause, and would
drop the demand for a checkoff, the Company
would consider it. Shapiro replied that if the Com-
pany wanted to make a proposal in that form the
Union "would very seriously consider it." Weiss
asked, "Are you saying that the two paid holidays is
all that stand between you agreeing to the Com-
pany's proposal?" Shapiro said it was three paid
holidays and the Union's modification of the Com-
pany's wage proposal. Weiss questioned whether
that would wrap up the contract negotiations and
invited Shapiro to make the proposal. Shapiro
replied, "You know this is the kind of a trap that
you can only catch a guy in once .... You want me
to negotiate with myself, or with the Committee ....
Every time you come back to us and say well, cut
this out and cut that out and then maybe we'll con-
sider it. All we find out we do is cut out more and
you have considered nothing." Shapiro offered to
take the committee out and have an answer in 15
minutes , and he said that if the committee recom-
mended it, it would be approved by the employees.
Weiss said, "We have no new proposal to make on
fringe benefits at this time ." Shapiro appealed
directly to Manning and Tolbert, saying that it
seemed that there was a possibility of reaching
agreement and "washing out" all negotiations, and
he begged them to make a proposal along the lines
indicated by Weiss, promising an answer in a few
minutes . Weiss suggested that Shapiro write a new
contract embodying as much of the company
proposal as the Union saw fit. Shapiro refused, ac-
cusing Weiss of trying to get the Union to take
more issues out of the negotiations. Weiss pointed
" The minutes, C P 's Exh 9(G), show statements by Shapiro after the
caucus However, the minutes of meeting number 15 makes plain that this
out that Shapiro was now negotiating on all the is-
sues that had been "okayed" and waived at the ex-
ecutive meetings. Shapiro turned to Tolbert and
Manning and said, "I've indicated to you, Mr. Tol-
bert, and to you, Mr. Manning, how we can reach
an agreement .... I said that if the Company would
submit a proposal which would include the wage
proposal that I made this morning ... [p]lus the
three paid holidays, we would give it very serious
consideration, wiping out all the other issues in the
contract." Weiss declined to make a proposal for
holidays unless he could be sure of a contract the
Company wanted. Shapiro asked if that meant that
the Company would offer three paid holidays.
Weiss said that the Company would make no
proposals for fringe benefits until it got ". . a
definite proposal from the Union on these main is-
sues which have blocked the negotiations ... all
this time."
At the 14th conference, some 2 months later, the
Fair Labor Standards Act amendments having been
passed by Congress, Respondent presented a new
proposal as to wage rates, to be effective February
1, 1967. Weiss stated that the proposal was in lieu
of the previous wage proposal submitted, including
the 2-percent supplemental increase, and that it
provided for no change in the old wage rates until
February 1, 1967. Weiss also said, however, ". . . If
you told me ... that the company proposal as
previously submitted is satisfactory and you'll ac-
cept it and sign a contract with these new rates, if
the Company will put into effect its previous
proposal during the 4 months period that inter-
vened, the Company would take a long, hard look
at it and we might have a deal." Shapiro asked
Weiss whether, if the rest of the contract was
satisfactory, the Company would still seriously con-
sider paying for several holidays. Weiss replied that
he did not recall having indicated any such position
but that in any event in view of the increase in the
minimum wage and the proposal which the Com-
pany had made that day, the addition of the in-
creased labor cost of any paid holidays would be
ruled out. The union representatives then caucused
with the mediator, who returned later without
Shapiro and made a report to Weiss which was in-
cluded in the tape recording.31
At the last conference, the 15th, Weiss presented
a new contract proposal .32 It included the following
new section in article III:
Section 12. Existing piece-work standards
are recognized as established. The Company
has the right to establish and put into effect
new or modified piece-work standards. As to
new or materially modified piece-work stan-
dards, an employee who sincerely believes that
there is some error or inaccuracy in the stan-
dard, and he has actually worked on the stan-
dard in question for not less than eighty (80)
is an error
u G C Exh 32
TEX-TAN WELHAUSEN CO. 877
hours, may call his contention to the attention
of his foreman. The Company will then re-
check the operation and the standard . A report
on such re -checking will be made to the em-
ployee who raised the question . If the em-
ployee wishes, he may request the re-checking
through the Union , in which event , the report
on the re -checking shall be made to the union
steward in the department involved.
Weiss also submitted a schedule of rates embodying
the Company 's January 25 proposal as augmented
by the 2-percent increase , or 3 cents per hour when
rounded out."' The contract provided that after its
execution the January 25 wage proposal as aug-
mented by the 2 -percent increase would be placed
into effect; that from February 1, 1967, to February
1, 1968, the wage schedule submitted at the Sep-
tember 23 meeting would take effect ; and that on
February 1, 1968, in lieu of any fringe benefits in
addition to those already in effect , the Company
would add 20 cents per hour to all rates. After cau-
cusing the union representatives returned and
Shapiro pointed out that the old provision for
premium pay for daily and Saturday overtime had
been removed from the contract . Weiss explained
that the Union had been insisting upon maintaining
the existing spread of rates when the Federal
minimum would be increased 20 cents per hour on
February 1, 1968, and that in order to reach agree-
ment with the Union the Company had consented
to a 20-cent across-the-board increase at that time
but had to skimp somewhere else in order to be
able to meet the Union 's demand.
Shapiro stated " for the record " that the Union
accepted the Company 's wage proposal of January
25, as amended by the 2-percent extra increase,
which proposal included the understanding that
negotiations on the rest of the contract would con-
tinue . Weiss said that that would be taken under
consideration and that he did not know what the
Company would do. He protested that he had been
given to understand that the wage question for the
period after February 1, 1967, would be resolved if
the Company placed the old proposed increase into
effect up to that time . Shapiro said , " You have not
said today that you would do that ." Weiss said,
"No; we're talking about whether you agreed to the
Company 's wage proposal ." Shapiro said , " I'm talk-
ing about whether or not you agree. How could I
agree if you don't agree ." Shapiro pointed out, also,
that the February 1, 1967, proposed increase
amounted to only 12 cents rather than the 15 cents
by which the Federal minimum wage was to be in-
creased since it had been computed on the basis of
rates which did not include the extra 2 percent
which had been offered.
Weiss said that the Company had given a great
deal of thought to the checkoff since it realized that
it was the only issue involved . Shapiro retorted that
that was a lie,
After a luncheon recess Weiss made a proposal
as to the February 1, 1968, rates and Saturday and
daily overtime which Shapiro rejected . Weiss asked
if the Union would accept the company contract,
with Saturday and daily overtime restored, but
without paid holidays or the checkoff . Shapiro
asked whether Respondent would grant three paid
holidays if the Union dropped its demand for
checkoff and for the 2 percent extra after February
1, 1967. Weiss refused and Shapiro said, "We don't
have an agreement ." The mediator said, ". . . what
you are really apart on is these three paid
holidays." This colloquy ensued:
MR. WEISS : He said we still don 't have a
contract until we give him the checkoff. Now,
the paid holidays-
MR. SHAPIRO : I did not say that.
MR. WEISS : No, you didn't say it, but that is
what you meant.
MR. SHAPIRO : No, it isn 't ... you didn't
listen to me ...
MR. wElss: No-No, I listened to you very
carefully and I understand what you are saying.
MR. SHAPIRO : You can 't understand what I
am saying if you say that I made the
checkoff-
MR. WEISS : We have covered the matter of
the holidays-
MR. SHAPIRO : There is no use talking to the
guy.
* * * *
MR. WEISS : Yes; we have covered the
matter of the holidays in section-section 4 of
article-
MR. SHAPIRO . You didn't hear what I said.
MR. WEISS: -section 4 of article ... [III].
We have agreed to maintain the differentials to
grant a 20 ... [ cent] across the board increase
in February of 1968 , and we have done that in
lieu of fringe benefits which includes paid
holidays. So it is perfectly clear what the
deadlock is about.
After extended discussion among Weiss, Shapiro
and the mediator Shapiro said , "Well, if you will
listen to me I will tell you. If we were to drop our
demand for this two percent and our demand for
checkoff, will you agree to the three paid holidays?
... And I said further that if you want a contract,
you have got one." Weiss said, "We have gone as
far as we think it advisable in spending money on
wage costs ...... The mediator again said, "What
you are really apart on at this point is the three paid
holidays ." Weiss replied , " I don't think that is true.
I think if we agree to this proposal he would find
some way to wiggle out of it because he did not get
the checkoff." Shapiro challenged, "Why don't you
try it.... Why don 't you test me and let 's see if I
mean it or not." Weiss replied , " Well, you would
" G C Exhs 33 and 34
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wiggle out of it some way." Shapiro suggested that
in view of Weiss' statement about the additional
costs that paid holidays would entail , they explore
the possibility of finding a formula whereby that
would not constitute an increased cost. Weiss in-
sisted that the matter was already covered in sec-
tion 4 of article III of the proposed contract, and
Tolbert said that the Company felt that wage in-
creases were appreciated more by the employees
than holidays. Shapiro said, "Well, I guess we have
gone as far as we can go."
About 2 or 3 weeks before the hearing one of
Weiss' legal associates, Frank Manitzas, telephoned
Weldon and asked him about the possibility of set-
tling this case, saying that he had "almost carte
blanche authority" to negotiate with Weldon. Wel-
don said that he was interested and both agreed
that settlement of the case would involve settling
the contract also. After consulting Shapiro, Weldon
informed Mantizas of the several items which the
Union wanted, including, among other things,
checkoff and an arbitration article which provided
for selection of an impartial third arbitrator and for
deletion of the substantial evidence rule. Mantizas
subsequently informed Weldon that some of the
Union's proposals were acceptable but some,
among them the arbitration and checkoff proposals,
were not.
Starting on the day the hearing opened Weiss and
Weldon had numerous discussions with a view to
settling the case. Weiss proposed to Weldon that
there be an early decertification election and that if
the Union won, the Company would grant its last
wage proposal and a fully revocable checkoff. Wel-
don,after consulting Shapiro, rejected the decertifi-
cation proposal but agreed to the rest and Weiss re-
ported that the Company was agreeable. They
proceeded to work out the details of the wage
proposal. Weiss said that the Union could choose
between a 15-cent increase on February 1, 1968,
with Saturday and daily overtime at premium rates,
and a 20-cent increase without that overtime. The
Union chose the 15 cents, but Weiss then informed
Weldon that when he consulted his principals they
insisted on elimination of the premium pay for
Saturday and daily overtime. After some delay
Weiss informed Weldon that the Company would
not agree, remarking that his client had strong no-
tions about the checkoff. Weldon said, "suppose I
can talk my client into substituting for the checkoff
a good arbitration clause ," which he explained to
Weiss would be one providing for a method of
selecting a neutral arbitrator and elimination of the
substantial evidence rule. Weiss rejected the
proposal.
F. Concluding Findings as to the Refusal To Bargain
1. Unit and majority
As admitted in Respondent's answer, it is found
that all production and maintenance employees at
Tex-Tan's Yoakum, Texas, plant, regular and extra
truckdrivers, shipping and receiving employees, and
leadmen, but excluding office clerical employees,
confidential employees, watchmen, guards and su-
pervisors, as defined in the Act, constitute a unit
appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
As Imperial Saddle is an integral part of the unit, it
is unnecessary that it be mentioned in the unit
description.
The Union has been certified as exclusive bar-
gaining agent of the employees in the unit, no proof
has been adduced that it no longer is the designated
or selected representative of a majority of said em-
ployees, and Respondent has recognized the Union
as such exclusive bargaining representative. It is
found that at all times material Union has been, and
it now is, the exclusive bargaining representative of
the employees in the appropriate unit. The filing of
the decertification petition in Case 23-RD-148 on
June 4, 1966, is not material. Distinquished
N.L.R.B. v. Minute Maid Corporation, 283 F.2d 705
(C.A. 5), denying enforcement of 124 NLRB 355.
2. The refusal to bargain about piece rates
Base rates were not guaranteed to pieceworkers;
the only guarantee they had was provided by the
Fair Labor Standards Act. Consequently a contract
fixing only base rates for piecework would not fix
piecework wages in any real sense. An employee
working on a job with a base rate of $2 per hour
would be paid 2 cents per piece if Tex-Tan decided
to make the standard on that job one hour, but only
I cent if it "engineered" the standard at half an
hour. There is no issue here of Tex-Tan's being
required to negotiate each standard before placing
it into effect; at all times that was waived by the
Union. The issues as to piecework raised by the
Union bearing on Tex-Tan's duty to bargain collec-
tively were the employees' right to bargain collec-
tively for a definition or guiding principle governing
standards to be incorporated in the contract and
their right to file grievances over the establishment
of standards.
Section 1 of article III of the old contract, provid-
ing, "Wages in the Company's production depart-
ments shall be those achieved under the Company's
establised standard hour piece-work system. ..."
was never in dispute. While the parties assumed
that the company booklet was not incorporated by
reference into the contract, there never was any
doubt that the "Company's established standard
hour piece-work system" referred to in section 1
was the plan described in the booklet. In describing
"productivity speed rating" the booklet states,
among other things, "An operator working at nor-
mal speed is rated 100 percent"; and it also states,
"100 percent productivity is attained without spe-
cial effort if the operator is experienced on the
operation and is applying himself normally." Weiss
said, "The system is that a normal man working at a
TEX-TAN WELHAUSEN CO. 879
normal speed achieves 100 percent." It must be in-
ferred that the foregoing was the principle or
definition intended by section 1 of article III and
that as to that both parties were in agreement.
The booklet language proposed by the Union is
sufficiently definite for purposes of a collective
contract. The head of Tex-Tan's Industrial En-
gineering Department testified that a competent
timestudy engineer would be able to determine
what normal application is and, notwithstanding the
pitfalls that are warned against , timestudy literature
generally accepts the proposition that a competent
timestudy engineer can determine "normal pace"
or "normal effort," or "normal application" with a
reasonable degree of accuracy. Employers do
commonly manage to live even with the more dif-
ficult contractual clauses defining the result of in-
centive effort, such as those originally proposed by
the Union'34 although there is considerable varia-
tion in the particular percentages agreed to for the
result of incentive effort ,35 depending, especially,
on the kind of operation involved. It is true that the
formulation of such a definition or principle
presents difficulty and usually results in contractual
provisions which are somewhat nebulous and thus
not completely satisfactory as to form. However,
that is a necessary concomitant of an incentive plan
like Tex-Tan's and is the price it has to pay for the
exceptional privilege it requires of obtaining the
employees' services without first bargaining out
their rates of pay with their statutory bargaining
representative. Tex-Tan did not suggest any varia-
tion or supplement of the booklet language by way
of clarification for purposes of the contract. It
simply refused to include in the written contract its
agreement with the Union as to productivity speed
rating. Respondent thereby violated Section
8(a)(5) of the Act. See Henry I. Siegel Co., Inc.,
supra.
When the Union's proposal was for clauses defin-
ing productivity speed ratings in terms of 130 per-
cent or 125 percent being attained with incentive
effort, as to which the parties were not in agree-
ment, Tex-Tan's refusal to make any attempt to
reach agreement on the subject was equally viola-
tive of the Act. The fact that standards are "en-
gineered" does not guarantee their correctness
since they are based upon an evaluation of pace
which is subjective. Nevertheless, Tex-Tan ad-
mantly insisted that the Union concede to it for the
life of the contract the authority to fix the wages of
the piecework employees without collective bar-
gaining. It failed to counterpropose any alternative
definition or guiding principle, or to make any ef-
fort at all to reach agreement with the Union on
such a definition or guiding principle, but insisted
on an agreement that there be no such agreement.
Its insistence extended to a refusal to negotiate
hourly wage rates for the various classifications of
employees until the Union dropped its demand for
such a provision. Moreover, it insisted with equal
adamance upon the right to revise standards
without contractual limitation. See Alba-Walden-
sian, Inc., 167 NLRB 695. While an employer may
in some circumstances insist upon a clause remov-
ing various terms and conditions of employment
from the ambit of collective bargaining for the du-
ration of a contract, see N.L.R.B. v. American Na-
tional Insurance Co., 343 U.S. 395, that principle
cannot be applied to so large and basic an aspect of
the employment relationship as were the wages of
the bulk of Tex-Tan's employees. See Majure
Transport Co. v. N.L.R.B., 198 F.2d 735, enfg. 95
NLRB 311. Tex-Tan was obliged to bargain about,
and to incorporate into a contract, if agreement
was reached, a definition or guiding principle on
the basis of which it would be possible to reach a
sound decision as to whether a particular standard
was or was not in accordance with the terms of the
contract. Even a provision for filing grievances
about the establishment of standards would not,
standing alone, have afforded the employees their
right to bargain collectively about rates of pay.
First, Tex-Tan's timestudies did not record suffi-
cient information about the obtaining and layout of
materials, so that they would not afford an
adequately definite base upon which to compute
and settle a disputed standard. Second, a grievance
under a contract opens up only the question of
whether the contract has been violated. 6 So far as
the Act is concerned Tex-Tan, if acting in good
faith, could have sought agreement to a definition
under which "normal" effort by an average em-
ployee would accomplish less than 100 percent of
standard. What it was not permitted to do was to
insist upon a contract providing that its piecework
employees work at rates of pay not bargained out
but set by Tex-Tan unilaterally, uncontrolled by
any agreement with the employees' bargaining
representative. Such insistence was the negation of
the collective-bargaining principle and, even apart
from the fact that what it refused to incorporate
into the contract had been agreed to with the
Union, was inconsistent with any good-faith inten-
tion of reaching an agreement governing rates of
pay. See Alba-Waldensian, Inc., supra.
Closely related to the question of the require-
ment that _ Tex-Tan bargain for an agreement
establishing rates of pay for piecework is that of the
entertainment of grievances under the contract on
the establishment of standards. On frequent occa-
sions up to the eighth conference Weiss said that
problems which the Union said existed around stan-
dards could be resolved through the grievance
" See Mazur , " Smoothing out the Bumps in an Incentive Plan," in "Job
Evaluation and Wage Incentives ," 192, Conover-Mast Publications, Inc
(Harrington ed 1949), see also Henry I Siege( Co, Inc, 147 NLRB 594
" See Mundel , " Motion and Timestudy ," 3d ed , 1960, Prentice Hall, p
338
' Distinquish the earlier Tex-Tan case, supra , which concerned the
setting of standards unilaterally , but subject to grievance, in the absence of
a contract See 134 NLRB 253, 270
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
procedure. However, when the Union, in its Oc-
tober 18 proposed contract, sought to assure itself
on that score by including a provision that
grievances on the establishment as well as the appli-
cation of standards be permitted, which, the Union
explained, would not change past practice in any
way, Tex-Tan demurred on the ground that the
right to file a grievance on every standard would
result in wrecking the system. It finally agreed to
try to write something. Almost a year later Tex-Tan
submitted an amendment, not to the grievance arti-
cle but to article III, providing that an employee
could call an error or inaccuracy in a standard to
the attention of his foreman, in which event the
Company would recheck and make a report. Tex-
Tan had all along been rejecting any provision al-
lowing the Union to timestudy jobs on which there
were disputes, claiming that it was unnecessary
since the right was inherent in the right to file
grievances on the application of standards. Plainly,
when Tex-Tan, at the ninth conference, stated that
it would try to write something, it did not intend to
allow the Union to timestudy a job for purposes of
ascertaining the correctness of a standard, or to
subject it to the grievance procedure. Respondent
adhered at all times to its position of insisting that
the Union give up the employees' right to file
grievances on the establishment of standards.
Congress did not intend that every difference of
opinion as to the wage terms of a collective con-
tract culminate in a law suit for wages. So costly
and time consuming a remedy would be
meaningless in the normal case, even assuming that
such an action based on a collective contract would
lie in the particular jurisdiction. Congress provided
explicitly in Section 8(d) of the Act that to bargain
collectively includes the mutual obligation to
confer in good faith with respect to any question
arising under the collective agreement-i.e. with
respect to grievances. Tex-Tan's insistence that the
Union agree to exclude from the grievance
procedure" so all pervading and important an
aspect of the employment relationship as the rates
of pay of the bulk of the employees was to insist
that the employees give up one of the most signifi-
cant parts of what Congress sought to accomplish
in enacting Section 8(a)(5). This, also, was to
negate the basic principles of collective bargaining
and was inconsistent with any good-faith intention
on the part of Tex-Tan to reach an agreement with
the Union as described in Section 8(d).
Tex-Tan's position was such that, except for
those benefits that would flow from the mere fact
of having a recognized bargaining representative
for the term of the contract, the employees would
have been better off without a contract, see "M"
System, Inc., 129 NLRB 527, 551, since they would
then have the unquestioned right, as long as Tex-
Tan was obliged to recognize their representative,
to file a grievance about every standard which Tex-
Tan established or revised , limited only by good
faith . See Tex- Tan, supra.
It is found that by insisting upon a contract which
would grant it the uncontrolled right to fix rates of
pay for piecework unilaterally and would deny to
the employees their right to file grievances as to
rates of pay for piecework Respondent refused to
bargain in violation of Section 8(a)(5). See Majure
Transport Co. v. N.L.R.B., 198 F.2d 753, enfg. 95
NLRB 311; see also Franklin Hosiery Mills, Inc., 83
NLRB 276.
3. Respondent's overall approach to bargaining
From the start of the negotiations Tex-Tan en-
gaged in extended discussion of competition from
foreign firms and, especially, American firms which
had established factories in Puerto Rico, pointing
out that it could cut its cost of operations in half by
establishing a plant there. This discussion occurred
when wage rates and all "economic" demands were
excluded from the negotiations by request of Tex-
Tan. Obviously, a person so minded can convey a
threat without using words of threat. The Trial Ex-
aminer would be blinding himself if he interpreted
Tex-Tan's repeated and persistent references to
Puerto Rican competition, particularly at times
when economic issues were excluded from negotia-
tion, as bona fide discussion of issues arising from
the negotiations rather than subtle threats by
Respondent. Whatever doubt there might have
been on this score was dispelled when, in the
course of discussing a certain engineer 's capability
in making timestudies in the leather goods industry,
Shapiro remarked that the man had done work for
a competitor of Tex-Tan's and Tex-Tan's response
was to ask if that was the firm that had moved to
Puerto Rico as so many competitors had done. It is
found that in order to undermine the Union and to
compel it to yield to Respondent complete uni-
lateral control over rates of pay for piecework,
Respondent threatened to move its operation to
Puerto Rico.
The key to Tex-Tan's basic policy in the negotia-
tions is found in its announcement at the October
20 conference that it intended eventually to make a
proposal for a wage increase but would not do so
until it obtained the seniority, grievance, arbitra-
tion, and piecework clauses it desired."' In 7
months of bargaining Tex-Tan had conceded one
minor point to the employees; namely, that em-
ployees transferred to another job in another de-
partment for the convenience of the Company would
no longer lose their seniority. It is noteworthy that
this concession was not made by Tex-Tan's regular
bargainers but was made spontaneously by Shows,
who never appeared at a bargaining conference
again . Tex-Tan had also proposed to lower from 5
R Excluding piece rates from the arbitration provisions of the contract
presents different problems and is not here considered
' Tex-Tan also mentioned the management -prerogative clause but that
had been incorporated by the Union in its October 18 proposal
TEX-TAN WELHAUSEN CO.
years to 3 years the seniority requirement for an
employee being laid off to be permitted to apply for
transfer to a vacancy in another department. Em-
ployees of 2 or 3 years' seniority were rarely laid
off, and, since the right granted, as pointed out by
Tex-Tan, was only to apply for, not to obtain, the
transfer, the change from 5 years to 3 was not one
that could be considered of importance.
Presumably any employee could apply for a vacan-
cy without the benefit of that provision. Another
superficial change was the incorporation of some
piecework-booklet language on retiming. This was
sweepingly modified, however, by the blanket
words, "or some other circumstance or condition,"
and the whole provision completely nullified by the
phrase, "Without in any way limiting the Com-
pany's authority set forth herein and purely by way
of explanation," etc. The other changes, all
proposed by the Company, were either editorial or
to the disadvantage of the employees.39 Respondent
had refused to agree to any proposal deviating sub-
stantially from the provisions contained in the old
contract. It refused to incorporate into a contract
matters which were, or which it claimed were, the
actual practice, including the Union's right to
timestudy a job on which there was a grievance, the
Union's right to file grievances on the establishment
of standards, and a prohibition against retiming by
reason of high earnings alone. At the same time it
insisted that the contract provide that the em-
ployees surrender their statutory right to bargain
collectively about piece rates, subcontracting, plant
closing or moving, and other matters. While em-
ployers are not required by the Act to make con-
cessions, a position as adamant as Tex-Tan's is rare-
ly maintained by an employer seeking in good faith
to reach an agreement with his employees' bargain-
ing representative. See N.L.R.B. v. Denton, 217
F.2d 567, 570 (C.A. 5), enfg. Marden Manufactur-
ing Company, 106 NLRB 1335. See also N.L.R.B.
v. Reed & Prince Manufacturing Co., 205 F.2d 131,
134-135 (C.A. 1), enfg. 96 NLRB 850.
Tex-Tan's withholding of a wage rate proposal
was more than a matter of "bargaining technique";
it represented, in fact, its basic policy in the
negotiations; namely, to refuse to bargain about a
wage increase unless the Union first surrendered
the employees' right to bargain about meaningful
rates of pay for piecework. On January 24, 1966,
when the "package" proposed by the Union to end
the strike gave Tex-Tan a sign that it had finally
succeeded in forcing the Union seriously to con-
" The Trial Examiner has omitted mention of the proposed addition to
article III, section 5, of the provision that base rates be paid for timework
on piecework jobs The practice had always been to pay the base rates and
that provision had not been requested by the Union Tex-Tan withdrew it in
its January 25, 1966, wage proposal, which provided that timework on
piecework jobs be paid at rates 5 cents per hour lower than the base rates
Tex-Tan intended from the start to do away with the practice of paying
base rates for timework on the piecework jobs It submitted a written
proposal to pay "time rates" at the very first conference (Resp Exh 4)
which , so far as appears in the record , the union representatives never
881
sider giving up that right, it offered an, increase in
wage rates at the bargaining session the next morn-
ing. Tex-Tan's cutting off the opportunity for col-
lective bargaining inherent in a wage increase until
the Union yielded on piece rates was not "con-
sistent with the purpose of the National Labor
Relations Act," see N.L.R.B. v. Crompton-Highland
Mills, Inc., 337 U.S. 217, 224, and denied to
piecework employees their right to bargain collec-
tively about their rates of pay. See Rhodes-Holland
Chevrolet, 146 NLRB 1304, 1316-17.
Tex-Tan's basic policy of not recognizing the em-
ployees' right to representation in bargaining was
manifested also in its issuance, without notice to
the Union, of a new book of regulations and a new
rule as to participation in Saturday overtime. The
management prerogative clause in the old contract
gave Tex-Tan the right to change the rules on con-
dition that one week's advance notice was given to
the Union. No notice was given and, in any event,
the Trial Examiner finds that the old contract and
the management-prerogative clause were not in ef-
fect when a new book of rules was issued. This find-
ing is -based on the adverse inference drawn from
Respondent's failure to prove the date the new
rules were issued, a fact peculiarly within its
knowledge, and from the fact that the Trial Ex-
aminer cannot credit Tolbert's and Manning's
testimony that they did not know. See Dyer v. Mac-
Dougall, 210 F.2d 265,269 (C.A.2). As production
managers, they will be aware of such matters, they
had been asked the same question during negotia-
tions and the matter came as no surprise at the
hearing. Plant rules are a mandatory subject of col-
lective bargaining and therefore may not be
changed unilaterally. See Miller Brewing Company,
166 NLRB 831; see also National Grinding Wheel
Company, 75 NLRB 905.
So far as Tex-Tan's technique of collective bar-
gaining was concerned, it consisted principally in
the avoidance, to the extent possible, of discussion
of issues at the bargaining table. One device was to
negotiate by writing. Thus, when the Union asked
questions about the vacation provisions of the old
contract in order to find out if some amendment
was appropriate, Tex-Tan immediately and without
any opportunity to find out what the problems
were, if any, suggested that the Union submit a
written proposal and that it would be "considered."
Such demands by Tex-Tan for written proposals,
with no tentative acceptance or rejection of
proposals and little or no discussion, were frequent.
noticed The proposal , which was combined with one for lower wage rates
for probationary employees , was immediately withdrawn by Tex-Tan, al-
legedly for reasons of faulty draftsmanship At the next conference, along
with the clause about probationers, the unnecessary and unrequested
provision for payment of base rates was submitted , presumably in order not
to draw to the Union's attention at that phase of the negotiations to what
Tex-Tan actually had in mind about time rates for piecework jobs At the
10th conference, when enumerating changes in the old contract , Tex-Tan,
like the Trial Examiner, omitted mention of the proposed addition to arti-
cle Ill, section 5
354-126 O-LT - 73 - pt 1 - 57
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the first conference Tex-Tan went through the
old contract article by article to identify those
which were acceptable to both parties, which was a
useful procedure at that stage of the negotiations.
At the fourth conference Tex-Tan repeated the
process over a mild objection by the Union that
there was a better way to identify the points at is-
sue. At the eighth conference Tex-Tan insisted on
repeating the article-by-article procedure again,
this time with respect to its July 28 proposed con-
tract, even though it knew that there were no im-
portant changes from the old contract. It refused to
identify any changes from the old contract to justify
the procedure but simply insisted adamantly on a
repeat rundown. The parties had been deadlocked
for months on important issues such as productivi-
ty, speed ratings, retiming, grievances on piecework
rates, arbitration, ventilation, holidays, vacations,
and a few others and Tex-Tan knew what those is-
sues were. During the article-by-article procedure
Tex-Tan attempted to start discussion on minor is-
sues. Tex-Tan's purpose in going through the 22 ar-
ticles individually plainly was to pretend to be bar-
gaining , while actually diverting the discussion
away from the issues that it knew had to be
resolved. Repeatedly it read lengthy extracts from
law review articles. Fruitful negotiation of the real
issues was also avoided by the device of not per-
mitting any decisions-even tentative ones-to be
made at the bargaining table. See N.L.R.B. v. Her-
man Sausage Company, Inc., 275 F.2d 229,
231-232 (C.A. 5), enfg. 122 NLRB 168. Tex-Tan's
negotiators would say that individual proposals of
the Union would have to be reported by them to
company officials for decision, so that the Union
had little contact with Tex-Tan's decision makers-
none after the fifth conference except for the ap-
pearance of C. C. Welhausen at the second execu-
tive session by special request. Manning, Tolbert,
and Weiss-mostly Weiss-talked; but it was plain
to see that, notwithstanding their claim to authori-
ty, they did not exercise any. This was particularly
true of Tolbert and Manning. They were intrigued
by the Union's proposal that the contract spell out
what constituted disqualification for Saturday over-
time and agreement was actually reached on that at
the bargaining table.'" In order to carry out the fic-
tion that Manning and Tolbert were authorized
negotiators Weiss said that he would write such a
provision and so wrote in his summary of the con-
ference. He did not do so and Manning and Tolbert
never repeated such exercise of bargaining authori-
ty. The Trial Examiner finds that Manning and Tol-
i0 Apparently Manning and Tolbert were unaware of Tex-Tan's intention
to do away with premium pay for Saturday work, an intention established
by its overtime article submitted at the first conference, which omitted the
provision for daily and weekend overtime So far as appears from the
record, it escaped the attention of the Union It was restored, without dis-
cussion and without request by the Union, in the proposed contract of
July 28, 1965, only to be excluded again in Tex-Tan's proposed contract
of September 29, 1966.
" i An idea of Manning and Tolbert's actual authority in Tex-Tan may be
gleaned from an incident peripheral to the bargaining After the strike the
bert did not have authority to bargain."' The only
other instance of agreement being reached at the
bargaining table, namely, the Company's agreement
that an employee transferred to another depart-
ment for the Company's convenience not lose his
seniority, as already noted, was not made by the
Company's regular bargainers.
The Union found it impossible to advance
negotiations by amending its proposals so as to
meet Tex-Tan's objections. Thus, when it proposed
that standards not be revised except for substantial
changes in job content, Tex-Tan objected that, the
word "substantial" would lead to difficulty. When
the Union dropped "substantial," Tex-Tan objected
that there might be a question as to what is a
change. When the Union proposed that jobs not be
retimed by reason of high earnings alone, Tex-Tan
objected that that would prevent the correction of
errors. When the Union offered to add that the
clause would not preclude retiming where error had
been made, Tex-Tan said that it would invite
grievances. When Tex-Tan objected that the
proposed provision would constitute an admission
that jobs had in fact been retimed because of high
earnings, the Union proposed to add, "Just as in the
past our policy will continue to be that we will not
retime a job," etc. Tex-Tan replied that the Union
was trying to wreck the piecework system. The
Union found that as to these and other issues it was
engaging in a labor of futility in trying to meet Tex-
Tan's objections. Moreover when Tex-Tan rejected
the Union's package proposal to end the strike by
giving up all but six of its demands, Tex-Tan re-
peatedly accused the Union of bad faith in standing
by the demands it had offered to drop, conveniently
forgetting the "ground rules" Tex-Tan itself had
framed for the negotiations. By thus placing the
Union on notice that it would refuse to recognize
the conditional character of any union proposal,
Tex-Tan excluded from the negotiations the normal
give and take of good-faith bargaining so often
needed if agreement is to be reached. See N.L.R.B.
v. Crompton-Highland Mills, Inc., 337 U.S. 217.
Arguments advanced by Tex-Tan also betray the
absence of good-faith purpose to reach agreement.
Bargainers, when pressed, often resort to reasoning
which cannot bear scrutiny; obviously that is not
necessarily inconsistent with good-faith attempt to
reach agreement. However, the incidence of such
arguments by Tex-Tan was extremely high, and the
description of the negotiations in the evidentiary
findings does not by any means reflect their extent.
At the 12th conference, after more than a year of
Union, which was permitted to post notices of the time and place of
meetings on company bulletin boards, requested permission to add to the
notice for the meeting which would vote on the Company's wage proposal
the words, "All are invited " The discussion of that question and of
whether the notice, which in any event could not be larger than 8 by I I
inches, could be handlettered rather than typewritten, took up I I pages of
transcript Neither Tolbert nor Manning, both in full charge of production
for their respective companies, could give the permission, the question had
to be submitted to higher authority
TEX-TAN WELHAUSEN CO. 883
bargaining, Tex-Tan for the first time objected that
the Union's proposal for grievances on the
establishment of standards meant that the standards
would not be in effect pending resolution of the
grievances. This contention was made not-
withstanding the absence of any justification for
such an interpretation and notwithstanding that the
Union had made clear that it was not intended to
change the prevailing practice, but that Tex-Tan
was to fix standards initially without consulting the
Union. When discussing the Union's proposal that
standards be set so that an employee would achieve
130 percent if working "with incentive effort,"
Tex-Tan argued that the Union's proposal referred
to a man working at normal speed. When the Union
asked for changes in the arbitration clause, which,
because of its terms, had been found useless by the
employees, Tex-Tan argued that it was so good that
in 2 years there had been only one arbitration-
"don't mess with it," was the counsel given; and it
argued that the "neutral" arbitrator should be
someone who would "have a personal interest" in
Tex-Tan's continued operation. When the Union
proposed a provision about ventilation, Tex-Tan,
having admitted ventilation inadequacies in various
parts of the plant, counterproposed a provision,
"that the Company will provide the same adequate
heat and ventilation system that it has in the past."
It answered complaints referring to stifling air and
summer temperatures as high as 125 degrees by ar-
guing that doctors say it is good to sweat; that girls
in air-conditioned law offices complain that it is too
cold; and that a provision about ventilation might
result in a decision by an arbitrator requiring air
conditioning . Tex-Tan justified this last fear by cit-
ing an allegedly foolish award on overtime by an ar-
bitrator appointed through the machinery of the
Federal Mediation and Conciliation Service,
although Tex-Tan always insisted upon arbitrators
it could depend upon. When challenged to point to
any of the Union's proposals for changes which
Tex-Tan had accepted, Tex-Tan pointed to its own
editing, its own meaningless counterproposals, and
to its own proposal to reduce the wages of proba-
tionary employees. When asserting that its wage
rate proposal approached the Union's demand for a
10-cent-per-hour increase, Tex-Tan said that that
figure could be reached with the new rates if the
employees improved their productivity. To justify
cutting the time rates for piecework jobs to 5 cents
less than the base rates, Tex-Tan argued that it was
being done in order to discourage timework, a
matter completely within its own control. At the
first conference Tex-Tan represented that Imperial
Saddle, which was merely Division 15 of Western,
was a "newly established company." Moreover,
although Imperial plainly was part of the bargaining
unit , Tex-Tan refused to concede that for several
months, Tex-Tan's lawyers saying that the company
officials were considering it and the officials saying
that they were leaving it to their lawyer. Tex-Tan
specifically admitted that the Imperial question was
not a bargaining point, but after finally agreeing to
it, referred to it as a bargaining concession granted
in order to reach agreement with the Union. When
Tex-Tan finally proposed a provision incorporating
booklet language relating to the retiming of
piecework jobs but preceded it with nullifying lan-
guage that at the same time was enigmatic and the
Union asked what it meant, the only clarification
Tex-Tan would give was, "It means what it says."
Throughout the negotiations, whenever the issue of
piecework was discussed, Tex-Tan asserted over
and over again, many dozens of times, that the
Union's proposals were advanced for the purpose
of wrecking the standard hour system, reiterating
the assertion in the face of the Union's assurance
that it fully accepted the piecework system and was
prepared to work with Tex-Tan to make it operate
more advantageously to both Tex-Tan and the em-
ployees. Tex-Tan had had 2 years of experience
with the Union and had acknowledged that the
Union had "certainly cooperated with us well dur-
ing the past years." During that period the Union
had not been restricted in the filing of grievances
on the establishment of piece rates. It must be con-
cluded that Tex-Tan did not believe that the Union
was trying to wreck the standard hour plan but that
Tex-Tan was making the statement in order to
avoid meaningful discussion of the issues. The un-
real nature of Tex-Tan's negotiations was especially
apparent in connection with the checkoff. At the
ninth conference, held after the strike had been
authorized, Tex-Tan insisted on trying to create a
union "must" item of that proposal, even though it
had been one of those least urged by the Union. At
the 15th, the last, session the Union indicated
unequivocally that if Tex-Tan granted three paid
holidays it would give up the checkoff and all other
demands and accept Tex-Tan's contract, and the
mediator stated that the only thing standing in the
way of a contract was the holidays. Tex-Tan, how-
ever, argued vigorously that the Union was really
insisting on the checkoff, and the Union gave up
trying to negotiate.
It is not intended by the above listing of incidents
to indicate that each such action or nonaction, by
itself, would in all circumstances show bad faith. As
stated by Judge Brown, ". . . conduct done at one
time judicially ascertained to manifest good faith
may, under other circumstances, be a mere
pretense." N.L.R.B. v. Herman Sausage Co., Inc.,
275 F.2d 229, 231. However, an overall appraisal
of Tex-Tan's bargaining compels the conclusion
that it did not approach the negotiations "with an
open mind and purpose to reach an agreement con-
sistent with the respective rights of the parties."
Majure Transport Company v. N.L.R.B., 198 F.2d
735, 739 (C.A. 5), enfg. 95 NLRB 311. Insisting
upon unilateral control of piece rates, it merely
went through motions and engaged in shadowbox-
ing. See Stonewall Cotton Mills v. N.L.R.B., 129
F.2d 629, 631 (C.A. 5), enfg. 36 NLRB 240; and
N.L.R.B. v. Southwestern Porcelain Steel Corp., 317
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F.2d 527, 531 (C.A. 10), enfg . 134 NLRB 1733. Its
entire performance was a counterfeit of the collec-
tive-bargaining process contemplated by Congress
and was in violation of Section 8(a)(5).
Respondent alleged in its answer that the Union
bargained in bad faith . During the negotiations Tex-
Tan imputed bad faith to the Union especially in
connection with four incidents : ( 1) Its adherence to
proposals it had offered to drop in exchange for the
package Tex -Tan refused to grant ; ( 2) after the
Union , in the contract rundowns at the first and
fourth conferences , had stated that the manage-
ment prerogative , scope of agreement , and "no-dis-
crimination " clauses were acceptable , it later took
a different position as to each ; ( 3) Downer said that
a good incentive system required that at least 50
percent of the employees make standard, but
Shapiro said that the Union 's position was that
every employee on piecework should make more
than standard ; and (4 ) the Union demanded an
agency shop , illegal in Texas . As already indicated,
Tex-Tan, not the Union , acted in bad faith with
respect to the rejected package proposal. The
Union 's proposal had been plainly conditioned on
acceptance of the entire package and Tex-Tan had
not been trapped into offering the wage " increase.
The Union 's change of position as to the three
items in (2) had no effect on the bargaining ; except
for the "no-discrimination " clause , they were
hardly discussed . These issues were raised not by
the Union but by Tex-Tan, as part of its technique
of diverting the negotiations from the more impor-
tant issues . Without discussion the Union adopted
Tex-Tan's demands on the first two items in its Oc-
tober 18 proposed contract . Downer 's statement
was not an agreement or proposal in any sense. He
merely expressed an opinion about something he
admitted he knew nothing about . It would appear,
rather , that Tex-Tan's harping upon the incident
was intended to impede useful discussion of the
Union 's proposal. As to the agency shop, the
proposal was that it be subject to determination as
to its legality and in any event it was not insisted on
but was merely suggested as a possible alternative
to a checkoff . The Union negotiated , despite much
provocation , with patience and with fairness and
reasonableness towards Respondent . It was flexible,
modifying proposals and withdrawing some-ulti-
mately virtually all-in order to make agreement
possible . It is found that the Union bargained in
good faith.
These conclusions are not affected in any way by
the course of the discussion of settlement of this
proceeding . So far as the Trial Examiner can
discern , Respondent 's purpose in going into this
area was to bolster its claim that only an impasse on
checkoff prevented agreement . However, just as
that was not true during the bargaining negotia-
tions , it was not true during the settlement negotia-
tions . When the Union's lawyer asked whether the
Company would grant "a good arbitration clause"
if he got the Union to drop the checkoff , Weiss said
no. Moreover , the point is not material.
Respondent contends that the allegation in the
complaint that it negotiated " in bad faith with no
intention of entering into any ... agreement" is
contradicted by the allegation that it insisted upon
entering into an extension of the old contract, and
by the fact that "the Company stood ready and
willing to execute " its July 28 proposed contract.
This contention is based upon a misreading of the
allegation , which is not directed to the absence of
intent to enter into any contract at all, but to
Respondent 's bona fides in negotiating . The agree-
ment Respondent claims it was willing to execute
was the old contract with no changes of substance.
It did not evolve out of, and was unrelated to, the
negotiations . Tex-Tan demonstrated this graphi-
cally by submitting contract proposals concerning
daily and weekend overtime , vacation , and time
rates for piecework jobs , and then withdrawing
them without discussion and without expression of
objection by the Union . The gravamen of the al-
legation is the character of Tex-Tan's negotiations;
namely , that they were not engaged in with the pur-
pose of working out an agreement . The complaint
"brought into question the general course of the
Company 's conduct as it reflected its attitude
toward bargaining ." See N. L.R.B. v. Mayes Bros.,
Incorporated, 383 F.2d 242 (C.A. 5), enfg. as
modified 153 NLRB 18.
G. Concluding Findings as to the Strike
Respondent asserts in its brief that Shapiro's
testimony as to the strike meetings is so self-serving
as to be obviously fabricated and incredible. How-
ever , his testimony that he told the meetings that
Tex-Tan had not been bargaining in good faith
finds strong corroboration in the record of the bar-
gaining conferences , where he made the same as-
sertion a number of times directly to Tex-Tan. As
to his testimony that he said that they would not be
striking for a raise in pay, Tex-Tan's adamant
refusal to discuss any wage increase up to the time
of the strike makes that testimony seem plausible. It
is corroborated also by Shapiro's frequent advice to
Tex-Tan during the negotiations that an increase in
classification rates would be meaningless without
provisions for participation by the Union in the
establishment of rates of pay for piecework, as
required by the Act. The Trial Examiner is con-
vinced , and finds, that Shapiro's testimony as to
what occurred at the two meetings is basically cor-
rect. While the Trial Examiner , in finding that
Respondent failed to bargain in good faith, has ad-
verted to some incidents during and after the strike,
it is plain that there was serious violation of Section
8(a)(5) before the strike. Whatever doubt may
have remained in anyone 's mind as to Tex-Tan's
bona fides in the negotiations was necessarily dis-
pelled by its conduct at the ninth bargaining con-
TEX-TAN WELHAUSEN CO. 885
ference, held after the members had authorized the
negotiating committee to call a strike. There Tex-
Tan adhered to its position of insisting that the
Union yield to it unilateral control of rates of pay
for piecework; disclosed that it had failed to draft
the clause as to participation in Saturday overtime
which it had unequivocally undertaken to do; en-
gaged in more argument of a kind not intended or
calculated to promote agreement; and capped the
whole session with an insistent and unreasonable
demand that the Union submit a package proposal
yielding on additional issues while Tex-Tan refused
to exchange package proposals or make any
proposals for change. It would not even offer the
wage increase which it was ready to grant once the
Union surrendered the employees' rights under the
Act. It is found that the strike was caused by
Respondent's failure to bargain in good faith prior
to the strike and was prolonged by its further unfair
labor practices during the strike.
tent , such as might indicate a purpose which was
subtly threatening rather than advisory . Respondent
confined itself to a reasonable, straightforward, fac-
tual statement of problems which would confront
the employees.
While Tex-Tan was aware that it had not been
bargaining in good faith , it did not know when, or
even whether, a strike would actually take place.
Notwithstanding Tex-Tan's resoluteness in refusing
to bargain in good faith , the evidence is not suffi-
cient to establish that no circumstances could
possibly supervene which would remove the unfair
labor practices as a cause of the strike.
It is found that Respondent did not violate the
Act by issuing the October 4 letter. Roy E. Hanson,
Jr., Mfg., 137 NLRB 251, 268. Distinguish Rice
Lake Creamery Co., 131 NLRB 1270, enfd. sub
nom. General Drivers and Helpers Union, Local 662
v. N.L.R.B., 302 F.2d 908 (C.A.D.C.), cert. denied
371 U.S. 827.
H. The October 4 Letter
In late September 1965 a newspaper in Victoria,
Texas, published a story in which it ascribed to
Shapiro the statement, "There is no contract at this
time and the employees are free to strike at any
time they feel negotiations are fruitless-"
On October 4, 1965, Respondent distributed a
letter to all employees reading in relevant part as
follows:
*
There are rumors of strike talk. The Union
has a right to call a strike if it wants to. Each
individual employee has the right to decide
whether he wants to strike or to work. We are
telling you now emphatically that the company
will continue to operate its factories, strike or
no strike. Those who want to work can work.
The Company also has the right to employ per-
manent replacements for those who want to
strike. The company will exercise this right in
the event of a strike.
The fact that at the time the October 4 letter was
issued the Union had not threatened Tex-Tan that
it would strike is not material. Apart from the possi-
ble implications in Shapiro's newspaper interview,
unfruitful bargaining had been going on for 5-1/2
months, and within 2 weeks after the letter the em-
ployees did vote to strike. It is reasonable to infer
that prior to October 4 there had been talk among
the employees about the possibility of a strike. The
General Counsel has not proved that the strike
issue was created by Respondent . It is important,
also, to note that the letter did not dwell upon
possible loss of employment to any inordinate ex-
1. Johnny Hundl's Overtime
Johnny Hundl worked in the Belt Department,
where he did embossing , molding , and pointing,
and also filled in on edging . Respondent 's practice
was to have employees work overtime to relieve
bottlenecks. Overtime was usually assigned to the
operator who normally did the job causing the bot-
tleneck, provided that he was able to achieve at
least standard production. When several employees
were eligible, the choice fell on the highest
producer.
Johnny Hundl was one of the highest producers
at his work. He was a member of the Union's
negotiating committee and attended at least one of
the October 1965 bargaining sessions. On Saturday,
October 23, 13 of the 25 employees in the Belt De-
partment, not including Hundl, were assigned over-
time . Six of the thirteen did laminating, one did
stamping, three did edging , one did beveling and
skiving , and two did punching. None did pointing,
molding, or embossing, Hundi's work, except to the
extent that one of the laminators spent approxi-
mately 30 minutes finishing an embossing job that
she had started the day before, which had to be
finished promptly. Counsel for the General Counsel
failed to establish that any of the overtime assign-
ments that day were to persons other than those
regularly assigned to the jobs which were worked. It
is found that the General Counsel has not proved
that Respondent deprived Hundl of overtime to
which he would have been normally assigned.
J. The Failure To Reinstate the Strikers
On June 3, 1966, Respondent received from the
Union a telegram reading as follows:"
This telegram is formal notice to you that the
strike at Tex-Tan Welhausen Co., and Tex-Tan
" G C Exh 23
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Western Leather Co., Yoakum, Texas, of the
Tandy Corp., is hereby terminated . Picketing
and all consumer publicity have ceased. On be-
half of each of the strikers, individually, this
constitutes an unconditional offer to return to
work. Please advise when they should report.
In addition, but not as a condition to the
foregoing unconditional offer to return to
work, we request a meeting with your
representatives on Wednesday, June 8, 1966,
for the purpose of bargaining over wages,
hours and conditions of employment. We will
appreciate a prompt reply to this request for a
meeting.
When the telegram was sent, the employees listed
on schedules 1, 2, and 3 of the Appendix of this
Decision were still out on strike.
At the 12th conference, 4 days later, Shapiro said
that the Union had notified the Company that every
striker, numbering approximately 255 in all, was
prepared to return to work as of the morning of
June 3 and that the Company was liable for his full
wages. Weiss replied that the Company's position
was that the strike was economic and that while the
Company intended to recall the strikers, that would
be done only on the basis of the Company's need
and of where the strikers could be worked in or
placed. Only 23 strikers were put to work during
the week following their unconditional offer to
return, 12 on June 6 and 1 1 on June 8. The record
contains no evidence of any instance where a
replacement was discharged to make room for a
returning striker and a substantial number of
strikers who were called back to work were as-
signed to jobs different from those they had had be-
fore the strike, which were held by replacements.
Tex-Tan stated that the reemployment of some
strikers had been delayed because it preferred their
replacements. Two strikers who had worked for
Respondent continously more than 6 months up to
the beginning of the strike and who applied for
pregnancy leave when recalled, namely, Darlene
Stary and Peggy Holster, were denied it on the
ground that they were coming back as new em-
ployees and therefore did not have the 6 months'
seniority required to entitle them to such leave.93 It
is found that Respondent, by Weiss' statement on
June 7, 1966, intended to, and did, refuse to rein-
state the employees listed on schedules 1 and 2 of
the Appendix to their prior positions of employ-
ment with all their rights and privileges previously
enjoyed. It is, accordingly, found that on June 7,
1966, Respondent refused the employees listed on
schedules 1 and 2 of the Appendix reinstatement to
their former positions of employment, thereby dis-
criminating against them in violation of Section
8(a)(1) and (3) of the Act. For reasons stated
below this finding of discrimination does not apply
to Roy Richter.
The strikers listed on schedule 3 of the Appendix
had been reemployed on June 6, so that Weiss'
blanket refusal of reinstatement on June 7 did not
apply to them. Except for Bessie Immenhauser and
Rosie Rothbauer, there is insufficient evidence that
the employees listed on schedule 3 were refused
reinstatement to their prior jobs.
Rosie Rothbauer and Bessie Immenhauser:
Rothbauer worked for Respondent since 1963 in
the Moccasin Department. Her principal job almost
from the start was doing certain work on chaps. She
was the only employee assigned to that job, which
took 60 to 70 percent of her time. Rothbauer was
reemployed on June 6, 1966, and assigned to do
other work in the Moccasin Department. Her old
job was done by Carmen Meza, an employee who
had been hired on the first day of the strike. Im-
menhauser was on leave of absence when the strike
started but joined the strike and picketed. Her job
when she went on leave of absence was as a stitcher
in the Moccasin Department on a small sewing
machine and her production averaged 150 percent.
After the strike she was assigned to various other
work in the same department, including odds and
ends. She received a warning slip for not achieving
standard but subsequently did achieve standard, on
one occasion as much as 132 percent. After 6
weeks she was invited to return to a job she had
had during the strike, and, since she had not been
given her prestrike job, accepted the offer and quit.
Respondent has not established that Immenhauser's
prestrike job was not available. It is found that
Respondent refused Rothbauer and Immenhauser
reinstatement to their former positions of employ-
ment, thereby discriminating against them in viola-
tion of Section 8(a)(1) and (3) of the Act.
Roy Richter: Richter was employed shortly be-
fore the strike, which he joined. During the strike
he participated with some other men in causing an
explosion one night on property near Respondent's
plant. The property was not part of Tex-Tan's
premises and there were no pickets in the area.
Respondent was informed by the police that
Richter had been prosecuted because of the in-
cident and had pleaded guilty. Shapiro claimed dur-
ing the negotiations that the incident concerned a
firecracker. Tolbert, however, testified that the
chief of police informed him and other officials of
Respondent that Richter had been involved in a
bombing. He also testified that the explosion had
caused damage to a house across the street. He
stated that he was present at a discussion of the in-
cident between Shows and Philip Welhausen and
that Welhausen decided not to reemploy Richter
because of the incident. Richter did not testify. It is
found that Respondent was informed by the police
that a bombing had taken place; that Respondent
was informed, further, that Richter had participated
and had pleaded guilty; and that Respondent de-
" See Cone Brothers Contracting Company, 158 NLRB 186
TEX-TAN WELHAUSEN CO. 887
cided for this reason to refuse to reinstate Richter.
In view of the seriousness of the conduct which
Tolbert testified the police ascribed to Richter and
the failure to prove that Richter was innocent, it is
found that the refusal to reinstate him was not
violative of the Act.
Wades Karl: Karl retired in January 1965 but
within 3 or 4 days resumed work and he worked
regularly up to the commencement of the strike. By
arrangement with his foreman he worked an
average of 2 days a week. The Company's retire-
ment policy, of which Karl was informed, was that
after reaching 65 years an employee was required
to retire unless the board of directors consented to
the extension of his employment for further periods
of 1 year each. A short time before the strike
Shows, president of Welhausen, remarked to Karl
that his work had helped the Company a great deal
and he asked whether Karl wanted to work again
the following year. Karl said that he would be glad
to if he felt all right. Karl struck on November 8
with the other employees. He received a letter from
Respondent asking him to come in but told his
foreman that he would not cross a picket line. The
foreman replied that they would have to fill the job
with somebody else. Karl was never recalled. While
Tolbert testified that Karl was informed of the
requirement that the board of directors consent
year by year to the extension of employment of an
employee reaching the mandatory retirement age,
he did not testify that that was the reason Karl was
not recalled. Respondent took no step to terminate
Karl's employment under its retirement policy.
Moreover, no showing was made that a retired em-
ployee was required to initiate the procedure
whereby the board of directors consented to the ex-
tension of his employment. The record does not
show that Karl made any application to the board
of directors when he was granted an extension in
1965. As an unfair labor practice striker, Karl was
entitled to full reinstatement to his position, and
Respondent's refusal on June 7 to reinstate him
was, as already found, discriminatory. The fact that
following, or simultaneously with, reinstatement
Respondent could have required him to make the
application for consent to an extension of his em-
ployment does not lessen the violation.
Lawrence Pekar: Pekar worked for Respondent
for about 10 months in 1961, left to go into the
Armed Services, from which he returned in January
1964, after which he worked continuously until the
strike. He was one of the two highest producers
among the five jackknife operators in the belt de-
partment, producing at the rate of about 165 to 170
percent. Pekar acted as shop steward for two de-
partments during the Union's 1965 organizing cam-
paign, signing up 23 of the 26 employees in the two
departments, all 23 of whom joined the strike. He
was on the Union's negotiating committee and dur-
ing the strike acted as picket chairman and assistant
to Shapiro. He was not reemployed until September
9, 1966. On July 18, 1966, at the 13th bargaining
conference when Shapiro asked why Pekar had not
been recalled, Tolbert replied that the various su-
pervisors did not want him back because of "his at-
titude toward the work and toward the Company."
He testified that he told the supervisors within 2
weeks after the end of the strike that he thought
Pekar should come back. He also testified that he
did not feel ready to force the issue with the super-
visors. Pekar had received three warning slips prior
to the strike, one for rolling an unattended dolly
across the floor, one for talking to another em-
ployee, and one for taking time off without first
getting permission. Tolbert testified that he
received a report that during the strike Pekar had
driven his car in such a manner as to block two
women who were driving home, but he said nothing
about it at the bargaining conference. Pekar denied
that he had done that and the Trial Examiner has
credited his denial. Tolbert testified that Pekar was
"a good hand and a good worker" and that when
Pekar spoke to him about the warning slips he ad-
vised Pekar not to "pick up these adolescent habits
because he had a good record and the Company
wanted to keep him that way."
It is found that Respondent delayed reemploying
Pekar because of his leadership in the organizing
campaign and the strike and that his prestrike con-
duct was seized upon as a pretext to justify a dis-
criminatory refusal to reinstate an outstanding
leader of the employees in their concerted activi-
ties . It is further found that Pekar did not engage
during the strike in conduct which justified Respon-
dent 's refusal of reinstatement.
K. Assignment to More Arduous Duties and Denial
of Leave of Absence
As the strike has been found to have been caused
by unfair labor practices, the allegations that
Respondent assigned more arduous and less agreea-
ble tasks at lower wages to certain strikers,
discharging one and constructively discharging
others, and that it denied leaves of absence to three
strikers, are subsumed by Respondent's refusal to
reinstate all the strikers . No additional findings or
remedial order are required.
L. The Warning Slips
Frank Bluda, Virginia Ferrell, Rosie Hundl, Bes-
sie Immenhauser , Bennett Krahovjak, Mary Rohan,
Rose Rothbauer, and Henry Wagner all par-
ticipated in the strike, were reemployed by Respon-
dent after its termination, but were assigned to jobs
materially different from those they held im-
mediately prior to the strike. After such reemploy-
ment each received one or more warning slips
because of low production. The warning slips all in-
cluded the statement, "Unless you take steps at
once to correct the above, disciplinary action will
be applied immediately," and Ferrell's had a
specific warning of possible discharge. Even prior
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the strike any employee producing below stan-
dard after a certain period on the job was theoreti-
cally subject to receiving a warning slip and ulti-
mately to being discharged . However , Respondent
had no defined policy as to taking those steps. The
record establishes that employees were retained in-
definitely even though their production was regu-
larly under standard and that warning slips were
dispensed with . The Respondent claimed that such
an exception was made when the foreman was con-
vinced that the employee was making reasonable
effort to improve his production . It may be inferred
that the foreman 's discretion was exercised also on
the basis of how readily replacements could be
found for the particular job, as in the case of
rawhide stitiching and cutting which many em-
ployees found unpleasant and undesirable . It is un-
necessary to decide whether Respondent 's irregular
practice would have resulted in the issuance of
warning slips to employees with the experience on
the job of the eight employees under discussion had
they not been strikers . There is no evidence that
their low production was in the nature of sabotage.
Respondent 's assigning them to different work from
what they had done prior to the strike was dis-
criminatory and coercive , and it placed them under
a handicap in their work . The coerciveness of that
action of Respondent was reinforced by the
warnings of disciplinary action . It is found that by
issuing the warning slips to Frank Bluda , Virginia
Ferrell , Rosie Hundl , Bessie Immenhauser , Bennett
Krahovjak , Mary Rohan , Rose Rothbauer, and
Henry Wagner , Respondent further violated Sec-
tion 8 ( a)(1) of the Act.
Margaret Wicks struck on November 8, 1965,
and returned to work on June 20 , 1966. She was as-
signed to her prestrike work , which was on belts,
but on a different shift . She was required to report
on her daily production sheet the number of
belts she had worked on. Prior to the strike if an
employee had not completed a customer 's lot, it
was laid aside for him to complete the next day.
After the strike an incomplete lot was completed
by an employee on the next shift , and each was
required to report his own production . Shortly after
her return Wicks received an oral warning from her
foreman that she had reported doing 70 belts more
than she had actually worked on; later she was told
that on another day she had reported too few belts.
This was followed by a warning slip on July 22,
which included an express warning of possible
discharge . A short time later , because of the confu-
sion employees were experiencing in keeping count
under the new system, Respondent reverted to its
prestrike practice of having each employee work
only on complete lots. Wicks had no further warn-
ing slips . There is no evidence as to whether
Respondent issued warning slips to any other em-
ployees involved in the confusion about counting
the belts or as to whether in issuing the slip to
Wicks Respondent departed from its usual practice
and it has not been proved that Respondent did not
believe that Wicks had made the errors . It is found
that the General Counsel has failed to sustain the
burden of proving that the warning slip was issued
to Wicks for discriminatory reasons or in retaliation
for having struck.
On the morning of July 19, 1966, three em-
ployees , Estelle Ferguson , Oleta Hobbs, and Marie
Koliba were sitting on the steps of one of Tex-Tan's
buildings waiting for the doors to open, when a
fourth employee , Agnes Koliba, approached and
then turned round and left. Ferguson and Hobbs
had been on strike up to the end ; Agnes Koliba had
said that she would go out on strike but had not
done so; and Marie Koliba , distantly related to
Agnes by marriage , had been hired the second day
of the strike As Agnes was leaving , Ferguson made
a remark not meant for , or heard by , Agnes. Marie
informed Agnes that Ferguson had referred to her
as a two-faced son-of-a-bitch and a report to that
effect was made to Garrett , the superintendent.
Hobbs testified that later that day Garrett asked her
if she had heard of any name calling on the steps
that morning and she said no ; that he asked her
whether she had heard the epithet " heifer" used
and she said that no names at all had been called.
Garrett went to Ferguson and told her what had
been reported . She replied , "Why should I do
that?" and Garrett said , " Well, I would not really
[have] thought you would ." She told him she could
not remember ever calling anyone a name like that.
Garrett pressed her as to whether anyone else had
said anything that morning which could have
caused the report he had received and she told him
that she could not remember anybody calling any-
one names . Shortly thereafter Ferguson was sum-
moned to the office , where, confronted by Marie,
she again denied the accusation repeatedly and said
that she could not remember ever calling anybody
that name and that she did not talk that way. Marie
said , " Oh yes you did ." Three days later Ferguson
received a warning slip , stating that it was given
"because she causes trouble between other workers
by calling them names and also upsetting other
workers by making false accusations about choos-
ing jobs ." On the witness stand Hobbs and Fer-
guson denied, and Marie asserted , that Ferguson
made the remark in question . Ferguson and Hobbs'
version was that Ferguson had merely said that
Agnes was right in not coming to the steps, since
she said one thing and did another . It is unnecessa-
ry to decide the credibility question since the issue
is not what Ferguson said but what Garrett thought
she said and why he gave her the warning slip. Fer-
guson 's own testimony about Garrett 's investiga-
tion-his prodding her for recollection of
something that might explain the report he had
received , and his indication to her that he would
not expect such a remark from her-warrants the
inference that he was trying to ascertain the truth.
As the only direct evidence in the record as to Gar-
rett 's motive in issuing the warning slip is the slip it-
self, the Trial Examiner does not reach any firm
TEX-TAN WELHAUSEN CO.
conclusion as to Garrett's belief or his reason for is-
suing the slip. Nevertheless, on the basis of the ac-
counts placed before Garrett according to the un-
contradicted testimony of his three informants, the
Trial Examiner concludes that the General Counsel
has failed to sustain the burden of proving that Gar-
rett did not believe Marie Koliba, or that he issued
the warning slip to Ferguson for discriminatory
reasons.
Noe Barrera, a striker, was reemployed on June
13, 1966, and assigned to the same work he had
had prior to the strike; namely, attaching buckles to
belts. He received a warning slip the next day
because of faulty work. He testified that what he
had done had resulted from the fact that the belts
supplied him were defective and that, because of
his need to hurry in order to keep his production
up, he failed in some cases to see the defects and in
those cases where he did see them nevertheless
proceeded with his part of the work. After receiv-
ing the warning slips he had no further problem and
his production was satisfactory. It is found that the
General Counsel has failed to satisfy the burden of
proving that the issuance of the warning slip to Bar-
rera was discriminatory or coercive.
Justine Janak struck on November 8 and
returned to work on Friday, June 17, when she was
assigned to her old job. Her production, which had
usually run about 127 percent before the strike,
was 93 percent for the week ending June 18, cover-
ing less than 2 days of work after her return. For
the week ending June 25 her production was in ex-
cess of 123 percent. On June 24, however, Respon-
dent issued a warning slip to her , with the usual
threat of disciplinary action, for the stated reason,
"because your productivity for the week ending
6/18/66 is not up to standard (93 percent)." In its
brief Respondent states that Justine Janak's
foreman, Othold, issued warning slips to all em-
ployees who did not achieve standard. The record
contains no evidence to that effect and it contains
affirmative evidence that Tex-Tan's supervisors had
discretion as to issuing warning slips . Janak had
been off her job for 7 months. An employer
motivated by needs of production would make
reasonable allowance for an employee returning
after so long an absence to get back into form. If
Justine Janak had plunged right in and produced
100 percent she might well have made errors and
received warning slips for that reason , as did Noe
Barrera . By the time the warning slip was issued
Janak had been producing at a rate well over 100
percent. There was no testimony by Othold or any-
one else explaining why in those circumstances
there was any call for the warning slip. It is found
that Respondent issued the warning slip to Justine
Janak in retaliation for having exercised the right to
strike, and as a warning that as a former striker her
performance would be subject to close scrutiny and
that she might be discharged upon the slightest pre-
text. It is further found that Respondent thereby
889
coerced employees in the exercise of rights guaran-
teed in the Act.
M. The Strikers' Vacation Pay
At the 13th bargaining conference Weiss stated
that Respondent would not pay vacation pay to the
strikers. He said that the terms of the old contract
with respect to vacations were being applied and
that they provided, among other things, that if an
employee missed 200 hours or 280 hours during the
vacation year, he lost half or all of his vacation,
respectively. He said that those strikers who had
lost less than 200 hours and qualified otherwise
would receive vacation pay. Because of absences of
more than 280 hours Respondent disqualified all
employees listed on schedules 1, 2, and 3 of the
Appendix for both 1965 and 1966. They were also
disqualified for 1965 because they were not on the
payroll on December 31 of that year. In addition
Tex-Tan disqualified a substantial number of them
for 1965 and all for 1966 because it computed their
"continuous service" as of less than 10 months. In
view of Weiss' statement it is found that Respon-
dent considered the employees absent for more
than 280 hours, or not on the December 31, 1965,
payroll, or having less than 10 months' continuous
service in either year, on the basis of absence from
employment while participating in the strike.
Tex-Tan's disqualification of employees for vaca-
tion pay because of absence while on strike would
have the natural effect of discouraging strike activi-
ty and union membership unless the disqualification
served Tex-Tan's legitimate business interest in
some significant fashion. See American Ship Build-
ing Co. v. N.L.R.B., 380 U.S. 300; see also
N.L.R.B. v. Great Dane Trailers, Inc., 388 U.S. 26.
When, because of strike absence, an employer
reduces an employee's vacation to an extent
reasonably commensurate with the employees'
withholding of work, a legitimate business interest
is being served which is significant in that the
deferred wage-which vacation money is, see
General Electric Company, 80 NLRB 510, 511 -is
paid only for the work contribution called for by
the vacation plan. In such a case there is no dis-
crimination which discourages union membership.
In General Electric Company strike absence resulted
in merely postponing, for purposes of vacation
credits, the employees' dates of hire, so that their
eligibility for the various lengths of vacation pro-
vided for in the plan was delayed for a time
equivalent to their striking. The employees who
maintained their employment status long enough to
qualify eventually received vacation pay based
upon their entire work contribution without forfei-
ture. Whatever reduction in vacation benefits ulti-
mately resulted was commensurate with the
withholding of work. The same was true in Mooney
Aircraft, Inc., 148 NLRB 1057. As Tex-Tan's plan
called for vacation payments based directly upon
the employees' work contribution, its reduction to
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the extent of the employees' failure to work during
the strike, which was automatic since based on
earnings, would represent a legitimate business in-
terest of Tex-Tan and would not be violative of
Section 8(a)(3). However, insofar as vacation pay-
ments were denied the employees because of con-
siderations based upon years or months of service,
not related to the work contributions which mea-
sured the vacation payments under the plan, Tex-
Tan's equating strike absence with normal absence
served no business interest sufficiently significant to
counterbalance the destructive impact which denial
of the vacation pay had upon the employees' right
to engage in strikes. See N.L.R.B. v. Great Dane
Trailers, Inc., supra. Respondent urges that its argu-
ments at the bargaining conferences establish a
legitimate purpose in disqualifying the strikers. As
such purpose was not testified to at the hearing, it is
unnecessary to consider whether it would justify
Respondent's action.
It is found that Respondent's denial of vacation
pay to the strikers on the basis of their absence
while striking was discriminatory and coerced the
employees in the exercise of their rights under the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
It is found that the activities of Respondent set
forth in section III, occurring in connection with its
operations described in section I, have a close, inti-
mate, and substantial relationship to trade, traffic,
and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
As it has been found that Respondent has en-
gaged in certain unfair labor practices, it is recom-
mended that the Board issue the Recommended
Order set forth below requiring Respondent to
cease and desist from said unfair labor practices
and to take certain affirmative action which will ef-
fectuate the policies of the Act.
It has been found that Tex-Tan insisted upon uni-
lateral control of piece rates by refusing to bargain
for a definition or guiding principle to govern
productivity speed ratings for incentive standards
and by insisting upon an agreement that the em-
ployees not have the right to file grievances on the
establishment of standards. It is recommended that
Respondent cease and desist from such insistence,
and, also , that it be affirmatively required to bar-
gain about such definition or guiding principle and
incorporate any agreement reached in a written
contract. Under this provision of the order the ex-
isting agreement as to the achievement of 100 per-
cent of standard without special effort must be in-
cluded in a written contract unless changed without
violation of the duty to bargain. The Trial Examiner
finds that Tex-Tan's refusal to bargain was unre-
lated to the identity of the employees' bargaining
agent but grew out of Respondent's basic
philosophy of labor-management relations; namely,
that it had to retain complete unilateral control of
rates of pay for piecework. For this reason it will be
recommended that Respondent be required to
cease and desist from insisting upon unilateral con-
trol of piece rates not only in bargaining with the
Union, but also with any other exclusive bargaining
representative of the employees in the unit.
It has been found that on June 7, 1966, Respon-
dent refused to reinstate the employees listed on
schedules 1 and 2 of the Appendix of this Decision
to their former positions of employment, thereby
discriminatorily discharging them, and on June 6,
1966, refused so to reinstate Rosie Rothbauer and
Bessie Immenhauser. It will, accordingly, be recom-
mended that Respondent immediately offer rein-
statement to their former positions of employment
to Bessie Immenhauser, Rosie Rothbauer, and all
employees listed on schedules 1 and 2 of the Ap-
pendix, other than Roy Richter. Some employees
listed on schedules 1 and 2 were thereafter offered
reinstatement to their prior positions and it will not
be necessary that such offers be repeated. The
reemployment letters in evidence, such as those to
Stary and Holster, were not, in view of Weiss' state-
ment on June 7 and the other circumstances men-
tioned, offers of reinstatement. Respondent shall
have the right in the compliance stage of this
proceeding to establish that it offered reinstatement
to their prestrike jobs to any of the discriminatees
in addition to those as to whom such finding is
made in this Decision. The order to make such
offer of reinstatement shall not be affected by the
fact that the discriminatee was discharged from or
quit a job with Respondent where he was not of-
fered full reinstatement to his prestrike job.
Edward Gomez, on returning to work after the
strike, was assigned to rawhide cutting. During the
4 months immediately prior to the strike his job had
been putting ground work on saddletrees. He had
received three warning notices because of his low
production, which had averaged 61 percent. Gomez
had previously been a rawhide cutter and had
produced at the rate of 180 percent, earning $2.50
an hour. However, when his job had been moved it
had been retimed and his earnings had fallen to
$1.68 per hour, after which the standard had been
cut further. Gomez had quit the rawhide job but
after 2 or 3 weeks had been reemployed and as-
signed to the groundwork job. After the strike,
when first offered the job of rawhide cutting, he re-
jected it and asked for his prestrike job, which
Respondent refused. Three days later he returned
to the plant and offered to take the rawhide job,
but Respondent rejected the offer. In August
Respondent invited him back to the rawhide-
cutting job, which he accepted, and he was still so
employed at the time of the hearing. His earnings
averaged about $85 per week, including overtime,
TEX-TAN WELHAUSEN CO. 891
as compared with $50 per week on the job he had
had just prior to the strike. While Gomez was more
adept, and could earn more, at rawhide cutting
than at his prestrike job, he was an unfair labor
practice striker and Respondent was not authorized
to decide which job was best for him. It may be that
when his prestrike job is offered, he will opt to
remain on the rawhide-cutting job, but Respondent
must make the offer of reinstatement.
Mathew Migl, Bennett Krahovjak, and Anna Mae
Huetsch were reemployed after the strike at jobs
other than their prestrike jobs but testified that they
preferred the new jobs. Ordinarily it would not be
appropriate to require that offers of reinstatement
be made to employees in such situations. However
at least Migl and Huetsch's new jobs had been held
before the strike by strikers who must be offered
reinstatement under the terms of the Recom-
mended Order. Migl, Krahovjak, and Huetsch
therefore need the protection of an order requiring
offers to them of reinstatement to their old jobs.
Johnny Drerschke operated a Dake machine in
the Saddle Department for several years prior to
the strike. When called back to work after the
strike he was assigned to other work, and his
earnings were substantially reduced. The Dake
machine was being operated by a new employee
who eventually quit, whereupon Respondent as-
signed another new employee to the Dake machine.
In late September 1966 when the second new em-
ployee quit, Drerschke was finally assigned to his
prestrike job. It is found that Respondent complied
as of that time with its duty to reinstate Drerschke
and no further offer of reinstatement need be
made.
Harvey Schaefer operated the Freeman machine
in the Billfold Department prior to the strike on the
7:30 a.m. to 4:30 p.m. shift. During the strike
Respondent instituted two shifts, the first from 4:30
a.m. to 1 p.m. and the second from 1 p.m. to 9
p.m., and this was maintained after the strike. For
some time Respondent also had a 7:30 a.m. to 4:30
p.m. shift for the later steps on its production line,
but that did not include operation of the Freeman
machine. When Schaefer returned after the strike,
he was assigned to the same job as previously but
on the 4:30 a.m. to 1 p.m. shift. He found the work
more difficult because materials were not as readily
available as they had been before the strike. Since
the standard remained the same, he found that in
order to maintain his earnings the time so lost had
to be made up for by working much harder, with
resulting nervous strain. Because this problem and
the new hours were upsetting to his physical condi-
tion-he was a longtime ulcer sufferer-he quit. As
Schaefer's prestrike job was no longer in existence""
Respondent was obliged to offer him substantially
equivalent employment. Schaefer's old shift was not
available, and, as the General Counsel has not
proved that the I to 9 o'clock shift would have
been more nearly equivalent to his old shift than
the 4:30 a.m. shift, it is found that when Respon-
dent reemployed Schaefer, it complied as of that
time with its duty to reinstate Schaefer. No further
offer of reinstatement need be made to Schaefer.
Distinguish Griffin Pipe, Division of Griffin Wheel
Company, 136 NLRB 1669, 1677, where work on
the discriminatees' old shift was available.
It will also be recommended that Respondent pay
the strikers their vacation pay and that it make
whole Bessie Immenhauser, Rosie Rothbauer, and
the employees listed on schedules I and 2 of the
Appendix, other than Roy Richter, for any loss of
earnings suffered by reason of the discrimination
against them. The amount paid as backpay to each
employee shall be a sum of money equal to what he
would have earned from June 7, 1966, the date of
Respondent's refusal of reinstatement,"5 to the date
of the offer to him of reinstatement to his prestrike
position. In the case of Bessie Immenhauser and
Rosie Rothbauer the backpay period shall com-
mence on June 6, 1966. The backpay shall be com-
puted in accordance with the formula stated in F.
W. Woolworth Company, 90 NLRB 289, with in-
terest thereon at the rate of 6 percent per annum,
to be computed in the manner described in Isis
Plumbing & Heating Co., 138 NLRB 716. It is
recommended also that Respondent preserve, and
upon request make available to the Board, payroll
and other records to facilitate the computation of
backpay and vacation pay.
The Trial Examiner further recommends that all
warning slips issued because of low production to
Frank Bluda, Virginia Ferrell, Rosie Hundl , Bessie
Immenhauser, Justine Janak, Bennett Krahovjak,
Mary Rohan, Rosie Rothbauer, and Henry Wagner
be removed from their personnel files.
As some employees entitled to offers of reinstate-
ment, backpay, or vacation pay under the terms of
the Recommended Order are not presently em-
ployed by Respondent, it will be recommended that
Respondent send copies of the Appendix to all per-
sons listed on the attached schedules not employed
by Respondent.
Upon the basis of the foregoing findings of fact
and of the entire record in this case, the Trial Ex-
aminer makes the following:
CONCLUSIONS OF LAW
1. Respondent, Tex-Tan Welhausen Company
and Tex-Tan Western Leather Company, Division
of Tandy Corporation, is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. Respondent is, and at all times material has
been, an employer within the meaning of Section
2(2) of the Act.
a' See Chase National Band , 65 NLRB 827, 828-829 , see also N L R B v
American Aggregate Co , 305 F 2d 559, 563 (C A 5)
" Lae Resistor Corp, 139 NLRB 621, 633
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Amalgamated Meat Cutters and Butcher
Workmen of North America , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of
the Act.
4. All production and maintenance employees at
Tex-Tan 's Yoakum , Texas , plant , regular and extra
truckdrivers , shipping and receiving employees, and
leadmen , but excluding office -clerical employees,
confidential employees , watchmen , guards, and su-
pervisors as defined in the Act, constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9 ( b) of the Act
5. At all times material the Union has been, and
it still is, the exclusive representative of all the em-
ployees in the appropriate unit for the purposes of
collective bargaining in respect to rates of pay,
wages, hours of employment , or other conditions of
employment , within the meaning of Section 9(a) of
the Act.
6. By refusing to bargain collectively with the
Union as the exclusive representative of all its em-
ployees in the appropriate unit , the Respondent has
engaged , and is engaging , in unfair labor practices
within the meaning of Section 8 ( a)(5) of the Act.
7. By refusing to reinstate unfair labor practice
strikers to their former positions of employment
and by denying them vacation pay, Respondent has
engaged , and is engaging , in unfair labor practices
within the meaning of Section 8 ( a)(3) of the Act.
8. By interfering with , restraining , and coercing
employees in the exercise of rights guaranteed in
Section 7 of the Act , Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
9. The unfair labor practices described above
are unfair labor practices affecting commerce
within the meaning of Section 2 ( 6) and ( 7) of the
Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law , and upon the entire record
in this case , and pursuant to Section 10(c) of the
National Labor Relations Act, as amended,
Respondent , Tex-Tan Welhausen Company and
Tex-Tan Western Leather Company, Division of
Tandy Corporation , its officers , agents , successors,
and assigns , shall:
1. Cease and desist from:
(a) Insisting , as a condition to entering into an
agreement with Amalgamated Meatcutters and
Butcher Workmen of North America , AFL-CIO, or
any other exclusive bargaining representative of its
employees in the appropriate unit, upon a provision
depriving the employees of their right to file
grievances on the establishment of standards for
piecework.
(b) Insisting , as a condition to entering into an
agreement with the Union or any other exclusive
bargaining representative of its employees in the
appropriate unit, upon excluding from such agree-
ment any definition or guiding principle as to
productivity speed ratings on the basis of which
production standards for piecework are to be
established.
(c) Refusing to incorporate into a written con-
tract with the Union its agreement as to productivi-
ty speed ratings upon the basis of which production
standards for piecework are to be established.
(d) In any other manner insisting, as a condition
to entering into an agreement with the Union or
any other exclusive bargaining representative of its
employees , upon being given the right to fix the
rates of pay of its piecework employees unilaterally.
(e) Refusing to furnish the Union its written job
descriptions in advance of timestudies by the Union
in connection with any grievances or in connection
with the preparation for the negotiation of contract
with Respondent.
(f) Changing factory rules without affording the
Union opportunity to bargain as to such changes.
(g) In any other manner refusing to bargain col-
lectively with the Union as the exclusive represent-
ative of its employees in the appropriate unit with
respect to rates of pay, wages , hours of employ-
ment , or any other terms or conditions of employ-
ment . The appropriate bargaining unit is:
All production and maintenance employees at
Tex-Tan 's Yoakum , Texas, plant , including
regular and extra truckdrivers , shipping and
receiving employees , and leadmen , but exclud-
ing office -clerical employees , confidential em-
ployees , watchmen , guards and supervisors, as
defined in the Act.
(h) Discouraging membership in the Union by
discharging or refusing to reinstate employees or
denying them vacation pay, or discriminating in any
other manner against them with respect to their
hire or tenure of employment or any terms or con-
ditions of employment.
(i) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
ercise of their rights guaranteed in Section 7 of the
Act.
2. Take the following affirmative action which, it
is found , will effectuate the policies of the Act:
(a) Upon request bargain collectively with the
Union as the collective -bargaining representative of
the employees in the appropriate unit with respect
to rates of pay, wages , hours of employment, and
other terms and conditions of employment , includ-
ing a definition or guiding principle to govern
productivity speed ratings for piecework standards,
and embody any understanding reached in a signed
contract.
(b) Upon request furnish to the Union informa-
tion in its possession necessary for the Union to
make timestudies or to check Respondent's
timestudies.
(c) Offer Bessie Immenhauser , Rosie Rothbauer,
and all persons listed on schedules 1 and 2 of the
Appendix of this Decision other than Roy Richter
immediate and full reinstatement to their former or
TEX-TAN WELHASUEN CO. 893
substantially equivalent positions without prejudice
to their seniority and other rights and privileges.
(d) Notify Bessie Immenhauser, Rosie
Rothbauer, and the employees listed on schedules I
and 2 of the Appendix, other than Roy Richter, if
presently serving in the Armed Forces of the
United States, of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
(e) Make Bessie Immenhauser, Rosie
Rothbauer, and the employees listed on schedules I
and 2 of the Appendix whole for any loss of
earnings they may have suffered as a result of the
discrimination against them in the manner
described above in section V of this Decision enti-
tled "The Remedy."
(f) Forthwith pay to each employee on
schedules 1, 2, and 3 of the Appendix the 1965 and
1966 vacation pay due him pursuant to Respon-
dent's vacation plan described in article VI of the
Respondent's contract with the Union dated May
10, 1963, disregarding for this purpose his absence
from work between November 8, 1965, and June 3,
1966, both inclusive, with interest thereon at the
rate of 6 percent per annum.
(g) Preserve and, upon request, make available
to the Board's agents for examination, copying, and
reproduction all social security payment records,
production records, payroll records, and all other
data necessary or helpful to analyze and compute
the backpay and vacation pay required by this
Order and to determine the identity of the em-
ployees entitled thereto.
(h) Expunge from the respective personnel
records of Frank Bluda, Virginia Ferrell, Rosie
Hundl, Bessie Immenhauser, Justine Janak, Bennett
Krahovjak, Mary Rohan, Rosie Rothbauer, and
Henry Wagner any warning slips or other notations
based upon low production.
(i) Post at all buildings of its plant in Yoakum,
Texas, copies of the attached notice marked "Ap-
pendix. "46 Copies of said notice, on forms provided
by the Regional Director for Region 23, after being
duly signed by its representative, shall be posted by
it immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken to insure that
said notices are not altered, defaced, or covered by
any other material. A copy of the aforesaid Appen-
dix shall also be mailed by Respondent to each em-
ployee listed on schedules 1, 2, and 3 thereof who
at the time of said posting is not employed by
Respondent, at his last known address.
(j) Notify the Regional Director for Region 23,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.47
IT IS ALSO RECOMMENDED that the complaint be
dismissed insofar as it alleges that Respondent in-
terfered with, restrained, or coerced employees, or
discriminated against them, by distributing the Oc-
tober 4, 1965, letter, by interrogating or threaten-
ing employees through Rosalie Findeisen and Lou
Wagner, by issuing warning slips to Noe Barrera,
Estelle Ferguson, and Margaret Wicks, by depriving
Johnny Hundl of overtime, and by failing to rein-
state Roy Richter.
*` In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
'' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 23, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that.
WE WILL NOT insist , as a condition to enter-
ing into an agreement with Amalgamated
Meatcutters and Butcher Workmen of North
America, AFL-CIO, or any other exclusive
bargaining representative of our employees,
upon a provision depriving our employees of
their right to file grievances on the establish-
ment of standards for piecework, or upon ex-
cluding from such agreement a definition or
guiding principle as to productivity speed
ratings on the basis of which production stan-
dards for piecework are to be established.
WE WILL NOT refuse to incorporate into a
written contract with the Union our agreement
as to such productivity speed ratings for
piecework standards.
WE WILL NOT refuse to furnish to the Union
our written job descriptions in advance of
timestudies by the Union.
WE WILL NOT in any other manner refuse to
bargain in good faith with the Union as the ex-
clusive representative of our employees in the
appropriate unit with respect to rates of pay,
wages, hours of employment, or any other
terms or conditions of employment. The ap-
propriate unit is:
All production and maintenance em-
ployees at Tex-Tan's Yoakum, Texas,
plant, regular and extra truckdrivers,
shipping and receiving employees, and
leadmen, but excluding office-clerical em-
ployees, confidential employees,
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
watchmen, guards and supervisors as
defined in the Act.
WE WILL NOT discourage membership in the
Union by refusing to reinstate employees or
denying them vacation pay or by discriminat-
ing in any other manner against them with
respect to their hire or tenure of employment
or any term or condition of employment.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of their rights to self-or-
ganization, to form, join, or assist the Union or
any other labor organization, to bargain collec-
tively 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 or all such activities.
WE WILL offer Bessie Immenhauser, Rosie
Rothbauer, and all persons listed on schedules
1 and 2 of this notice, other than Roy Richter,
immediate and full reinstatement to their
former positions without prejudice to their
seniority and other rights and privileges. The
only exceptions are any of those persons to
whom we have already offered full reinstate-
ment to the jobs they had before the strike.
WE WILL notify Bessie Immenhauser, Rosie
Rothbauer, and the persons listed on schedules
I and 2 of this notice, if presently serving in
the Armed Forces of the United States, of their
right to full reinstatement upon application in
accordance with the Selective Service Act and
the Universal Military Training and Service
Act, as amended, after discharge from the
Armed Forces.
WE WILL make Bessie Immenhauser, Rosie
Rothbauer, and the employees listed on
schedules 1 and 2 of this notice whole for any
loss of earnings they may have suffered as the
result of our refusal to reinstate them to the
jobs they had before the strike.
WE WILL pay to each employee on schedules
1, 2, and 3 of this notice the 1965 and 1966
vacation pay due him, if any, pursuant to our
vacation plan, with interest thereon at the rate
of 6 percent per annum, and for this purpose
will disregard absence from work during the
strike.
WE WILL remove and expunge from the
respective personnel records of Frank Bluda,
Virginia Ferrell, Rosie Hundl, Bessie Immen-
hauser, Justine Janak, Bennett Krahovjak,
Mary Rohan, Rosie Rothbauer, and Henry
Wagner any warning slips or other notations is-
sued after the strike based upon low produc-
tion.
TEX-TAN WELHAUSEN
COMPANY AND TEX-TAN
WESTERN LEATHER
COMPANY, DIVISION OF
Dated By
TANDY CORPORATION
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 6617 Federal Office Building, 515 Rusk
Avenue, Houston, Texas 77002, Telephone
713-228-4721.
SCHEDULE 1
James Adams
Arthur Aschenbeck
Raymond Barton
Roselyn Berger
Marvin Berger
Frank Bluda
Millie Boening
Ben Bolech
Walter Braun
Edith Brewer
Henrietta Buesing
Janice Carby
John Chavarria
Burton Clark, Jr.
Delores Clark
Kathleen Day
Johnnie Drerschke
Edward Dolezal
Francis Donnelly
Howard Drabek
Barbara Drozd
Annie Emken
Estelle Ferguson
Virgie Ferrell
Max Friedrich
Arthur Gerdes
Edward Gomez
Herbert Greer
Gilbert Gregory
Henry Grossman
Danny Guajardo, Jr.
Ruth Guetebeir
Violet Hairell
Luella Havlik
Della Hearn
Martha Heidaker
Herman Hermes
Oleta Hobbs
John Holster, Jr.
James Hudgeons
Anna Huetsch
Rose Hundl
Bobby Kurtz
Donald Kurtz
George Kurtz
Adela Leck
Alan Leck
Julius Machacek
Dorothy Meyer
Estelle Migl
George Migl
Matthew Migl
Willie Mikulenka
Bennie Mitchell
Joe Morales
Leon McAfee
Eugene Neitch
Rudolph Neusser
Victor Novak
Frances Olsovsky
Bobby Opela
Delores Opela
Joseph Opela
Leo Opela
Lilian Orsak
Iva Parks
Evelyn Pekar
Edwin Pesek
Elizabeth Polasek
Tony Pospisil
Howard Pullin
Clifton Renken
Newton Renken
Mary Rohan
Rose Rothbauer
Joe Sanchez
John Sanchez
Adolf Sandelovic
Isabella Schaefer
Robert Sciba
Edward Schroeder
Hilda Selver
Estella Shackelford
George Shimek
TEX-TAN WELHAUSEN CO. 895
John Hurta Leroy Shows August Devault Roy Richter
Lorene Hurta Elizabeth Simper Emil Doubrava Ronald Romero
Bessie Immenhauser Joseph Simper Mary Dowlearn Robert Sanchez
Willie Immenhauser Willie Slovacek George Fojtik Harvey Schaefer
Ella Jackson Marie Smith Mary Ann Frazer Tillie Schmidt
Francis Jagerson Daniel Spies Nettie Frazer Eunis Schumann
Justine Janak Walter Squyres Albina Fuller Larry Seifert
Lambert Janak Phillip Sualla Ruby Gerdes Fairey Simek
Julia Janik Louis Steinman Bonnie Gibson Eugene Simper
Mary Jemelka Treet Steinman Loretta Hajek Gladys Squyres
Junius Johnson Dennis Strauss Alma Harless Walter Squyres, Jr.
Ruth Johnston Roy Thomas Edward Heidaker Darlene Stary
Martha Kahanek Lupe Trevino Hazel Hermes Wilma Stary
Stanley Kahanek Rudolph Trevino Peggy Holster Anita Thiele
Herbert Klockgether Edwin Ulcak Johnnie Hundl Jim Turek
Lillian Koether Willie Vera Harold Irvin Helen Vinklarek
Irene Krametbauer Henry Wagner James Irvin Margaret Wick
Elias Krejci Erlene Werner Alice Janak Tessie Yaws
Bennett Krahovjak Paul Wick Louise Janak Richard Zapta
Eddie Kristek Julius Zissa Edward Jemelka
Felix Kuenstler Leon Zissa Hugh Jones
Eddie Jungbauer John Aleman
Willie Zissa Jo Ann Kahanek Patsy Bartek
Claude Kalina Rose Barton
Schedule 2 Wades Karl Elie Berger
Rudy Kasparek Jacqueline Dearson
Leonard Amaya, Jr. Steve Machart Alfonse Kocian Kenneth Evans
Bernhard Barre Effie Manning George P. Kocian Charles Mallard
Noe Barrera David Marcak Finis Kuenstler Frank Molina
Patricia Bennetsen Agnes Michalec Betty Jo Kurtz Adela Pekar
Annette Blaschke Kenneth Miller Elizabeth Kurtz Louis Pekar
Emil Blaschke Henry Moeller, Jr. Elizabeth M. Kurtz Fred Rohde
Erwin Blaschke Ike McElroy Thelma Lauer Ramon Sanchez
Lily Mae Bolech Katie McElroy James Loos Elvira Shimek
Gussie Bortel Alma McMarry Charles Machacek Roberta Shimek
Annie Marie Brewer Mary Ann Parr William Renken Edwin von Haefen
I F li P kBrma rewer are x e
Alfred Chumchal Lawrence Pekar Schedule 3
Id Ch h l S P kda umc a on ra are
Leebert Clark Karl Petering Morris Boone Emily Weber
Antonia Cretors Annie Pilsner Herman Donnelly Jimmie Harman
Earl Cretors Della Pustejovsky Mary Rainosek John Pilat
Emma Culak Clariebel Renken William Kunetka Paul Novosad
Mary Deharde Lanell Renken Donald Harbin Alvin Migl