Texas Foundries, Inc

National Labor Relations Board - Board Decisions

Dec 31, 1952

101 N.L.R.B. 1642 (N.L.R.B. 1952)

1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the United States have not been considered herein, the recommendations made
will be addressed to the Respondent in its operations within the State of Texas-20
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following :
CONCLUSIONS OF LAw
1. International Association of Machinists, Lodge 1276, and United Brother-
hood of Carpenters and Joiners of America, Local No. 1423, AFL, are labor
organizations within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of V. U.
Reneau and O. F. Tucker, thereby encouraging membership in the Carpenters,
the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act.
3. By such discrimination, thereby interfering with, restraining, and coercing
its employees in the exercise of rights guaranteed in Section 7 of the Act, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
4. The aforesaid labor practices are unfair labor practices affecting com-
merce, within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
20 The Respondent maintains a branch office and a warehouse in Houston , Texas.
'TEXAS FOUNDRIES , INC. and INTERNATIONAL MOLDERS & FOUNDRY
WORKERS UNION OF NORTH AMERICA , AFL. Case No. 16-CA-362.
December 31, 1952
Decision and Order
On February 29, 1952, Trial Examiner Arthur Leff issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain other unfair labor
practices alleged in the complaint and recommended the dismissal of
those allegations. Thereafter, the Respondent, the Union, and the
General Counsel filed exceptions to the Intermediate Report and sup-
porting briefs. The Respondent also requested oral argument. This
request is hereby denied because the record, the exceptions, and briefs,
in our opinion, adequately present the issues and the positions of the
parties.
The Board 1 has reviewed the rulings made at the hearing and
ifinds that no prejudicial error was committed. The rulings are hereby
'Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three -member panel
(Members Houston , Styles, and Peterson].
101 NLRB No. 249.
TEXAS FOUNDRIES, INC. 1643
affirmed. The Board has considered the Intermediate Report, the
exceptions and briefs, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner.2
Order
Upon the entire record in this case, and pursuant to Section 10
(c) of the National Labor Relations Act, the National Labor Relations
Board hereby orders that Texas Foundries, Inc., Lufkin, Texas, its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Molders &
Foundry Workers Union of North America, AFL, as the exclusive
bargaining representative of the employees in the appropriate unit
set forth in the Intermediate Report, with respect to rates of pay,
wages, hours of employment, or other conditions of employment.
(b) Discouraging membership in International Molders & Foundry
Workers Union, AFL, or any other labor organization of its employees,,
by discriminating in regard to their hire and tenure of employment or
any term or condition of their employment.
(c) Discharging or discriminatorily refusing to reinstate employees
for the reason that they participated in strike or concerted activities
protected by the Act.
(d) Threatening employees with loss of employment or other
reprisal for participating in strike or concerted activity.
(e) Unlawfully soliciting individual employees to discontinue or
abandon strike activity.
(f) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist International Molders &
Foundry Workers Union of North America, AFL, or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purposes
of collective bargaining or other mutual aid and protection, and to
refrain from any or all of such activities, except to the extent that
such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized by
Section 8 (a) (3) of the Act.
Certain inaccuracies and typographical errors in the Intermediate Report , too minor-
to be detailed here , do not affect our agreement with the Trial Examiner.
The Trial Examiner found a per se violation of Section 8 (a) (5) in the Respondent's
refusal to furnish the Union a list of current piece rate prices used in its wage incentive-
system . As we find that the Respondent 's action with respect to this request affords fur-
ther evidence of its lack of good faith in dealing with the Union, we find it unnecessary-
to adopt the Trial Examiner 's finding of a per se violation therein.
1644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Molders
& Foundry Workers Union of North America, AFL, as the exclusive
representative of the employees in the appropriate unit, and embody
in a signed agreement any understanding reached.
(b) Offer the employees named in schedules A and B attached to
the Intermediate Report immediate and full reinstatement to their
former or substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, as provided in the section
of the Intermediate Report entitled "The Remedy."
(c) Make whole the employees named in schedules A and B (other
than Jessie Lamb), as well as Vandy Paulette, in the manner set forth
in the section of the Intermediate Report entitled "The Remedy," for
any loss of pay they may have suffered by reason of the Respondent's
discrimination against them.
(d) Upon request, make available to the Board or its agents, for
examination or copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other rec-
ords necessary, to analyze the amount of back pay due under the terms
of this Order.
(e) Post at its plant at Lufkin, Texas, copies of the notice attached
hereto, marked "Appendix A." 3 Copies of said notice, to be fur-
nished by the Regional Director for the Sixteenth Region, shall, after
being signed by the Respondent's representative, be posted by the
Respondent immediately upon receipt thereof, and maintained by it
for sixty (60) consecutive days thereafter, in conspicuous places, in-
cluding places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by other notices.
(f) Notify the Regional Director for the Sixteenth Region, in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent violated the Act in respects other than herein found,
be, and it hereby is, dismissed.
3In the event that this order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor Re-
lations Act, we hereby notify our employees that:
TEXAS FOUNDRIES, INC. 1645
WE WILL NOT discourage membership in INTERNATIONAL MOLD-
ERS & FOUNDRY WORKERS UNION OF NORTH AMERICA, AFL, or in
any other labor organization of our employees, by discriminating
in regard to their hire or tenure of employment, or any term or
condition of employment.
WE WILL NOT discharge or discriminatorily refuse to reinstate
any of our employees for engaging in strike or concerted activities
protected by the Act.
WE WILL NoT threaten employees with loss of employment or
other reprisal for participating in strike or concerted activity.
WE WILL NOT unlawfully solicit individual employees to dis-
continue or abandon strike activity.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to selforganiza-
tion, to form labor organizations, to join or assist INTERNATIONAL
MOLDERS & FOUNDRY WORKERS UNION OF NORTH AMERICA, AFL,
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all of
such activities, except to the extent that such right might be af-
fected by an agreement requiring membership in a labor organiza-
tion as a condition of employment, as authorized in Section 8 (a)
(3) of the Act.
WE WILL, upon request, bargain collectively with INTERNA-
TIONAL MOLDERS & FOUNDRY WORKERS UNION OF NORTH AMERI-
CA, AFL, as the exclusive representative of the employees in the
bargaining unit described below, with respect to rates of pay,
hours of employment, or other conditions of employment, and if
an understanding is reached, embody such understanding in a
signed agreement.
WE WILL in the manner described in the section of the Inter-
mediate Report entitled "The Remedy," offer to the following per-
sons full reinstatement to their former or substantially equivalent
positions without prejudice to any seniority or other rights and
privileges previously enjoyed:
Elton Anderson
Euthel Anderson
A. E. Bailey
Thaxton Baird
Homer Brasuell
Henry Byars
Hayden Clevinger
William Edwards
Billie M. Ford
Jerrell P. Garrett
A. 0. Harbuck
P. W. Hopson
A. W. Johnson
E. P. Johnson
Aron Kelsey
J. C. Lawson
1646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. G. Lee
Delmer McGaughey
Cullen McMullen
Cecil Miles
N. H. Miles
E. H. Norton
Robert D. Page
Billie R. Sisson
Gerald L. Smith
Andrew J. Vickers
John H. White
Jessie Alexander
Ernest F. Brown
Alvis O. Campbell
Alton Lee Deckard
Theodore Gilders
James Jackson
Jessie Lamb
James Lewis
John B. Lewis
Leonard Murray
Willie B. Olford
George H. Overshone
S. K. Sweats
Wookerson Teal
Josie F. Ward
Eddie Williams
WE wn.L in the manner described in the section of the Intermediate
Report entitled "The Remedy" make each of the above-named
persons (other than Jessie Lamb) and, in addition, Vandy Paul-
ette, whole for any loss of pay suffered as a result of the discrimi-
nation against him. The bargaining unit is :
All molders, coremakers, and apprentices employed at our
Lufkin plant exclusive of all other employees, watchmen,
clerical and professional employees and supervisors as defined
in the National Labor Relations Act, as amended.
All our employees are free to become, remain, or refrain from becom-
ing or remaining members of the above-named union, or any other
labor organization, except to the extent that this right may be affected
by an agreement in conformity with Section 8 (a) (3) of the Act.
TEXAS FouwDRIEs, INC.,
Employer.
By ----------------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
A charge having been duly filed by International Molders & Foundry Workers
Union of North America , AFL, herein called the Union , on February 21, 1951, and
amended on August 9, 1951, a complaint and notice of hearing thereon having
been issued and served by the General Counsel on September 6, 1951, and an
answer having been filed by the Respondent , Texas Foundries , Inc., a hearing upon
due notice was held at Lufkin , Texas, before Arthur Leff, the undersigned duly
TEXAS FOUNDRIES, INC. 1647
designated Trial Examiner, between October 15 and November 2, 1951. The
complaint as amended at the hearing alleged in substance, and the answer denied,
that the Respondent engaged in unfair labor practices affecting commerce within
the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the
National Labor Relations Act, 61 Stat. 136, herein called the Act, by :
1. Refusing, since on or about September 28, 1950, to bargain collectively with
the Union as the exclusive representative of its employees in an appropriate unit
defined by the Board in Case No. 16-RC-247, 83 NLRB 679.
2. Engaging, since on or about September 23, 1950, in various acts of unlawful
interference with, and restraint and coercion of, guaranteed employee rights,
including (a) interrogation of employees concerning union membership, activities,
and sympathies; (b) threats of economic reprisal; (c) solicitation of individual
employees to return to work during a strike; (d) grants of unilateral wage
increases and a bonus in derogation of the rights of the exclusive bargaining
representative ; (e) refusal of permission to the Union's international representa-
tive to visit the Respondent's plant during working hours to view physical condi-
tions relating to grievances; (f) transporting nonstriking employees in the
Respondent's bus through union picket lines ; and (g) petitioning for and obtain-
ing a State court injunction enjoining the Union and striking employees from
engaging in picketing and other activities.
3. Discriminatorily refusing, on and after July 27, 1951, to reinstate to their
former or substantially equivalent positions 43 named employees who had en-
gaged in a strike caused by the Respondent's unfair labor practices, and denying
another, Vandy Paulette, such reinstatment after application therefor from
March 2 , 1951, to April 30, 1951.'
4. Additionally discriminating against 16 of the aforementioned striking em-
ployees-who are distinguished from the others in that they are outside the
bargaining unit-by discharging 14 of them on February 2, 1951, 1 (Alvis D.
Campbell) on January 10, 1951, and/or February 2, 1951, and 1 (Willie B.
Olford) on March 2, 1951.2
All parties were represented at the bearing by counsel and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence on the issues. At the close of the General Counsel's case, motions
of the Respondent were granted, over the objection of the General Counsel and
the Union, to dismiss the allegations of the complaint relating to interference,
restraint, and coercion that are referred to above as subdivisions (a), (e), and
(f) of paragraph numbered 2.' Motions made at the same time, to dismiss
additional allegations of the complaint for insufficiency of proof, were denied
with leave to renew on the entire record at the close of the case. Upon renewal,
ruling was reserved, and these motions are now disposed of in accordance with
the findings of fact and conclusions of law made below. Opportunity was af-
forded all parties to argue orally upon the record at the close of the case, and
to file briefs and proposed findings and conclusions. The General Counsel and
1 The complaint originally named 51 employees , but at the close of the General Counsel's
case it was amended to delete the names of 7. The amendment made at that time is here
deemed to have the operative effect of a dismissal on the merits . The 7 dropped from the
complaint were Wayne R. Carr , Raymond T . Forsythe , L. L. Hodges , J. L. Johnson, John
E. Loving, Harold Stewart , and William E. Whitaker.
-2 The allegations referred to in this paragraph , as well as the allegation relating to
Vandy Paulette in the preceding paragraph , were added to the complaint on motion of the
General Counsel , granted over the objection of the Respondent , at the close of the General
Counsel 's case. Motions made at that time to amend the complaint in other respects were
denied
a In dismissing ( e), it was made clear that this was not to preclude consideration of a
related matter on the refusal to bargain issue.
1648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union argued orally at the hearing and filed briefs thereafter ; the Re-
spondent did not.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Texas Foundries, Inc., a Texas corporation with its principal office and place
of business at Lufkin, Texas, is engaged in the manufacture, sale, and distribu-
tion of malleable iron castings and related products. During the 12-month
period ending March 31, 1951, the Respondent purchased raw materials valued
in excess of $250,000, of which more than 25 percent was shipped in interstate
commerce to its Lufkin plant from points outside the State of Texas. During
the same period, the Respondent manufactured and sold finished products valued
in excess of $2,000,000, of which more than 40 percent was shipped in interstate
commerce from its Lufkin plant to points outside the State of Texas. The Re-
spondent admits that it is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Molders & Foundry Workers Union of North America, affiliated
with the American Federation of Labor, is a labor organization within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
From about 1944, the Union has been interested in organizing all production
and maintenance employees at the Respondent's Lufkin plant. Before 1948,
the Union twice petitioned the Board for certification as exclusive bargaining
representative in employee units substantially broader than that described below.
On each such occasion its petition was administratively dismissed for lack of a
substantial showing of interest. Finally, in 1949, the Union filed a third petition
for certification, this time in a craft unit confined to molders, coremakers, and
apprentices, upon which a hearing was held. The Respondent vigorously opposed
the Union's petition, contending that the employee group in question did not
constitute an identifiable homogeneous group and, moreover, could not properly
be regarded as a craft. These contentions were overruled by the Board in its
Decision and Direction of Election. The Union won the election which followed,
and, on or about July 6, 1949, the Board certified it as the exclusive representa-
tive for the purpose of collective bargaining of all employees in the unit found
appropriate by the Board, described as follows :
All molders, coremakers, and apprentices of the Respondent employed at
its Lufkin plant, exclusive of all other employees, watchmen, clerical and
professional employees and supervisors as defined by the Act.
The unit contains roughly 60 of the Respondent's approximately 400 produc-
tion and maintenance employees. The Respondent admittedly holds to the con-
viction that the Board erred in setting apart a separate craft unit. It believes
now as it did in 1949 that the work of the minority inside and the majority out-
side the bargaining unit is so integrated as to make it unfeasible for it to take
a position with respect to wages, hours, and working conditions as to one group
not adopted as to the other.
TEXAS FOUNDRIES, INC . 1649
Notwithstanding that conviction , however, the Respondent did not seek court
review of the Board 's determination , as was its right , by withholding recogni-
tion from the Union . On the contrary , the Union entered into contract negotia-
tions with the Union as the statutory representative of employees in the certi-
fied unit. And in this proceeding the Respondent does not contest the Board's
unit determination , admitting its appropriateness in its pleading.
Following the Union 's certification in 1949, contract negotiations extending
from September 10 to November 10 were conducted between the Union and the
Respondent , culminating in the execution of a 1 -year collective bargaining agree-
ment expiring on November 11, 1950.
B. The course of the 1950 negotiations and other events leading to the strike
1. The wage reopening in August 1950
Pursuant to a provision in the 1949 contract permitting either party to reopen
the question of basic wage rates , a meeting requested by the Union was held on
August 12 , 1950. At this, as well as at most of the subsequent meetings to be de-
scribed below , the Union 's negotiating committee was composed of Grady Alex-
ander, an international representative , and an employee shop committee of three ;
the Respondent 's, of E. W. Marcellus , employed by a Chicago industrial rela-
tions firm retained by the Respondent , R. S. Bradshaw , the Respondent's vice
president and production manager , and Scott Sayers, its personnel manager.
Colonel Cal C. Chambers , the Respondent 's president , was not present except at
one meeting in January 1951 , but throughout the negotiations he remained in
close contact and frequently consulted with the Respondent 's negotiating team.`
At the August 12 meeting the Union requested a wage increase , contending
among other things that the Respondent 's wages were out of line with those
paid by other foundries . The Respondent took the position that its earnings
did not justify a wage increase . It agreed , however, to make a survey compar-
ing its wage rates with rates paid by other foundries in the area , and to nego-
tiate on the basis of the facts found.
2. The Union reopens the entire contract for negotiation ; the Respondent decides
upon a 71/2-cent plant-wide increase
On September 9, 1950 , the Union served the required 60 days ' notice of its
intent to terminate the 1949 contract , and advised the Respondent it was reopen-
4 All those named above testified with regard to the negotiations summarized in this
Report. In addition , there was received in evidence minutes of the meetings prepared
by Sayers for the Respondent 's use. The Sayers minutes were admitted with the under-
standing that they were not necessarily complete and accurate in every detail , and that
they might be supplemented , qualified , or explained by oral testimony . The findings
made below are based upon a synthesis of the testimony of all witnesses , Sayers' minutes,
and other record evidence bearing on the issues. The full record has been considered,
without placing reliance entirely on any one witness or document to the exclusion of other
evidence in the record . As to most basic facts there is no substantial conflict. In certain
respects , however , conflicts do appear , not only between testimony of Alexander and the
Respondent 's representatives , but between different members of the Respondent 's nego-
tiating committee , and even at times within the testimony of a given witness Such con-
flicts have been resolved in accordance with my judgment of what version seems most
credible in the light of all surrounding circumstandes , other evidence , and my observation
of witnesses . Only in such instances where conflicts between the parties concern matters
critical to a determination of basic issues of this case will the conflicts and my basis for
resolving them be set out in this Report.
1650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the entire contract for negotiation. The Respondent replied it would be
prepared to discuss both the wage question and a new contract on September
28, 1950.
On or about September 24, 1950, the Union submitted to the Respondent its
proposal for a new contract. In addition to a demand for a wage increase and
for contract procedural changes, the Union asked for an improvement in working
conditions, including fringe benefits such as paid holidays, call-in pay, premium
pay for time worked in excess of 8 hours a day, and the like.
Before receiving the Union's contract proposals, the Respondent evaluated its
current business position, and determined to offer the Union and to grant all non-
unit employees an increase of 71/2 cents an hour, applied both to their minimum
guaranteed and to their incentive base rates. This determination was made
about the middle of September. It was then also decided that the offer to the
Union and the announcement of the grant to nonunit employees should be made
at about the same time. The 7%-cent figure was arrived at, according to the
Respondent, on the basis of its estimate of the maximum it was then financially
able to offer in the way of increased money benefits, whether in the form of a
direct wage increase or fringe benefits involving money items. Another de-
cision made at the time was to place all added money benefits in the wage in-
crease rather than allocating part to fringe items. This was done, according to
the Respondent, because the Union had been complaining that wage rates were
low, and because the Respondent desired to place itself in a more favorable
competitive position in the labor market.
3. Negotiations begin ; the Respondent offers the Union a 71/2-cent wage increase
and on the same day announces the immediate grant of a like increase to
nonunit employees
Contract negotiations began on September 28, 1950. The first day was devoted
largely to reviewing the provisions of the old contract, with the Union's proposed
changes and additions interpolated into the discussions at appropriate places.
Wages as such were not discussed at the first meeting, the Union acceding to the
Respondent's suggestion that this subject be deferred until after other contract
issues had been explored.
It had originally been contemplated that the second bargaining meeting
be held on September 29, but it was postponed to October 5 due to another engage-
ment of Alexander. At the meeting that day, the Union continued to urge
certain revisions in administrative provisions of the contract and also to urge its
demands for fringe benefits and improved working conditions. With regard to
the administrative provisions, the Respondent agreed to a few changes, to be more
fully reported below, but it refused to yield on any item involving money benefits
or improved working conditions.
The subject of wages was directly raised at this meeting. Taking issue with
the Union's claim that the Respondent's rates were low, the Respondent pro-
duced a chart it had prepared in connection with its wage survey to show that
the earnings of the Respondent's molders compared favorably to earnings of
similarly classified employees ' at other foundries in the area. The other
foundries were referred to on the chart simply by symbol, and the chart did not
indicate whether the earnings of their employees were based upon hourly or
upon incentive rates, nor did it -reflect the fringe benefits that were enjoyed.
Alexander requested the Respondent to identify by name the companies referred
to on the chart. But the Respondent refused to do so, asserting the information
was confidential.
TEXAS FOUNDRIES, INC. 1651
It was not until the end of the morning session on October 5 that the Respondent
for the first time communicated to the Union the wage increase offer it had
decided upon more than 2 weeks before. As the negotiators were recessing
for lunch that day, Marcellus remarked that he had a proposal to aid their
digestion. He then offered the Union a 71/2-cent hourly increase on guaranteed
and incentive base rates. This he stated was designed to cover and be in lieu
of all money items demand by the Union.
What Marcellus did not tell the union negotiators was that the Respondent
earlier that morning had posted a notice of a plant-wide meeting to announce
that raise. The meeting was held about 3 p. in. that day, and was attended by
production and maintenance employees, both in and out of the bargaining unit.
It was addressed by the Respondent's president, who, after emphasizing it was
"the policy of Texas Foundries to pay as high wages as we can possibly pay and
keep the Company in a sound and healthy financial position," announced the
Company was granting all nonunit employees a 71/2-cent per hour pay increase
effective as of October 2. He added that the same raise was being offered to the
Union, and if accepted that week would also become effective as of October 2.
I)uring the afternoon negotiating session on October 5, the Union made an
additional effort to have the Respondent agree to certain fringe benefits such as
paid holidays, call-in pay, and premium pay under certain conditions. And at
one point, the union representatives indicated they would recommend a 2-year
contract with a 6-month wage reopening clause, if the Respondent would only
agree to its proposal relating to Saturday work caused by furnace repairs.` But
the Respondent would not yield or compromise on any demand involving a cost
item
At the Respondent's request the Union's representatives agreed to submit to
the membership the Respondent's 71/2-cent proposal along with those contract
changes on which tentative agreement had been reached. They did not, however,
undertake to recommend acceptance of the Respondent's contract proposal. It
was arranged to have the Respondent draw up a draft incorporating all changes
on which tentative agreement had been reached so that a single document
might be presented to the union membership.
The draft as prepared and submitted by the Respondent reflected the follow-
ing modifications of the old contract, covering the only changes agreed upon up
to that point :
(a) The old contract had provided for six steps in the grievance procedure,
all of which had to be exhausted before the Union was free to strike. It was
possible for the Company to delay the exhaustion of all steps for a period of
some 74 days. The Union had protested this as too long. As modified, the
draft agreement shortened the fifth step from "thirty days" to "fifteen working
days," and the sixth step from "twenty-five days" to "fifteen working days "
(b) The old contract required the Union in the event of an unauthorized
strike, not only publicly to disavow the strike and to instruct the striking em-
ployees to resume work immediately, but also to "further instruct all employees
not participating in such interruption of production to continue at work." The
new draft omitted only the quoted provision and represented only a partial
concession to much broader demands of the Union on the subject. In a speech
on October 18 confined to unit employees, Chambers, explaining the changes to
which the Respondent had agreed, stated that the Company had consented to
delete this clause because "it doesn't mean too much either way."
G The old contract provided for a 5-day week but allowed the Respondent to require
Saturday work without premium . pay to make up for time lost during the week due to
furnace repairs . The Union wanted premium pay for Saturdays worked under these
conditions.
242305-53-105
1652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) The original contract gave the Respondent the "unqualified" right to
discharge or discipline an employee engaging in a strike before the exhaustion
of the grievance procedure. The draft omitted the word "unqualified." As
Chambers explained in his speech to the employees, "There is not much difference
between unqualified right and right."
(d) A paragraph was inserted making it clear that employees might vol-
untarily work on Saturday. This addition was requested by the Respondent
and agreed to by the Union.
(e) A provision was added requiring the Company to provide for the Union's
use a bulletin board on which the Union could post notices of meetings as well
as other notices that had received the prior written approval of the Company's
personnel manager. This did not represent a substantive change from former
practice, for, as Chambers explained to the employees, "The bulletin board has
been there, but we didn't include it in the contract last yehr so we put it in
this year."
(f) A provision was added for the retroactive application of adjustments
resulting from grievances on incentive rates. This also was not a substantive
change from existing practice. As Chambers in his speech explained, "That
has always been the policy of the Company, it has always been done, but the
Union wanted it stated in black and white, so we said 'Fine, we will put it in.' "
(g) Five cents was added to the starting rate of one classification, coremaker
learner, although the maximum rate was not changed. This modification was
requested by the Respondent, not by the Union.
(h) All rates were changed to reflect the 71/2-cents an hour increase offered
by the Respondent.
At a union meeting held shortly thereafter, the membership voted to reject
the contract in the form submitted by the Respondent. Aside from excepting
to substantive provisions, the members present at the meeting expressed their
irritation over the manner in which Colonel Chambers had announced the plant-
wide increase. They considered his action was designed to discredit the Union
by making it appear that the Union could gain nothing for its organized unit
beyond what the Respondent had already voluntarily decided to grant employees
outside the bargaining unit.
4. Further negotiations, October 18 to November 11, 1950
Between October 5 and November 11, 1950, three additional negotiating meet-
ings were held-on October 18 and 31, and on November 11, the last two with a
United States conciliator in attendance.
At these meetings the Union repeatedly informed the Respondent that some-
thing more would have to be added to make the contract palatable to its mem-
bership. Wages were mentioned but only in passing a The "something more"
the Union emphasized was not wages as such. It was improved working con-
ditions. While not agreeing that the 71/2-cent wage increase was adequate, the
Union repeatedly made clear its willingness to accept that amount if it could
get some of the fringe benefits its members were insisting upon. The members,
it was explained, regarded their fringe demands equally as important, if not
more, than an increase in wage rates. And this was particularly true, the
9 Thus it was stated at one point that the union members had not been made happy by
the amount offered. And in response to the Respondent's reiterated emphasis on the high
take-home pay of its employees, challenged by the Union, the Union on at least one occa-
sion suggested raising the hourly guaranteed rates to a level more nearly approximating
the hourly base incentive rates which the Respondent insisted more accurately reflected the
earnings of employees.
TEXAS FOUNDRIES, INC. 1653
Union stated, because wage rates were tied in with a wage incentive pay system
under which the men felt the Respondent might cancel out wage increases by
altering insignificantly the job content of incentive work. The Union's sights
at this stage of the negotiations were focused principally upon its demands
for paid holidays, premium pay for Saturday work as such, particularly where
such work was necessitated by furnace breakdowns, and premium pay for work
in excess of 8 hours a day.
With regard to the Union's demands for fringe benefits, the Respondent's
over-all stand was as follows : When it had made its original offer of 71/2 cents
it had decided to package all expense items in that wage offer. In making that
offer it had gone as far as it possibly could, and had even stretched a point,
considering its business position and prospects as they then appeared.' Because
the Union had complained that its wage rates were too low, and because it
wanted to maintain its direct wages at as high and attractive a level as possible,
it had decided when it made its wage offer to put all money benefits in the
form of a direct wage raise and not to split the increase by putting part of it
into fringe benefits as it might have done, and that was still its position.
As the unit employees represented only a small segment of its total employee,
complement, to grant them extra benefits would be unfair not only to its stock-
holders, but to its other employees as well. It could not permit the tail to wag
the dog ; wages and working conditions must be applied uniformly to employees
throughout the plant without placing any in a position of relative disadvantage;
and no concession could be made to the Union, whether in the form of wage
increases or modifications in their working conditions, that was not made
applicable to the entire employee group.
Sayers' minutes reveal the Respondent also based its position on another
factor, not disclosed to the Union. As appears from his minutes, the conciliator
at a private session with the Company during the October 31 bargaining meeting
expressed the view that the Union was actually satisfied with the 71/2-cent wage
increase but was upset because it felt the Company had been trying to discredit
it. He then gave it as his opinion that the parties would be able to get together
if the Company would only give in on one of the Union's fringe demands. In
response, Marcellus stated in effect that the Respondent was considering not
only its financial position and the favorable comparison of its rates to that
of other area foundries. It was also taking into account, he said, that the
Union was negotiating with an eye on its organizational drive among employees
outside the unit.
The Respondent discussed with the Union all its demands but receded on none,
even where they were revised to meet specific objections of the Respondent.
All compromise offers made by the Union were rejected, and none was proposed
by the Respondent.
In the course of these meetings the Union suggested, and the Respondent
rejected, the following as a basis for complete settlement of the contract con-
troversy : (a) At the October 18 meeting the Union suggested settling on the
basis of the Respondent's proposed contract plus six paid holidays. (b) At the
October 31 meeting, Alexander again offered to settle for six paid holidays,
although he coupled it this time with a request for premium pay for Saturday
work. This was rejected, according to Alexander's testimony, credited in that
7 At various points In the course of these meetings, Alexander for the Union expressed
his disbelief of the Respondent's assertion that 7% cents above the old wage rate was all
it could then pay and yet remain in a sound financial position. At no time, however, did
Alexander or any other union representative expressly request the Respondent to produce
financial data to back up its position in that regard.
1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respect, partly for the asserted reason that other area employees, especially
Lufkin Foundry Company, did not pay for holidays and the Respondent did
not care to be the area guinea pig on fringe issues. (c) Later at the same
meeting Alexander proposed a settlement on the basis of applying the proffered
71/2-cent hourly wage increase retroactively to October 2, 1950, the date it was
granted nonunit employees, and extending the old contract to March 1, 1951.
Alexander offered this proposal as one designed to meet the Respondent' s guinea
pig objection, explaining that the Union intended to gain a concession from Luf-
kin Foundry Company in its negotiations with that company which would be held
in the interim. In rejecting this compromise proposal, the Respondent gave
as its first reason that it had been decided when the Company first made its
7i -cent wage increase offer that the raise would not go into effect until the
week a new agreement was signed, and then only if the new agreement was
for a term of a year. To this the Respondent added that it did not care for a
short term contract because it would be tied up soon again in negotiations. (d)
Finally at the meeting on November 11 Alexander proposed a 1-year contract
with three paid holidays added to the Respondent's contract proposal, or
alternatively, the short term contract with the retroactive wage increase the
Union had offered the day before.' Though the old contract had expired the
day before, this, too, was turned down.
Throughout this period the only new item, major or minor, on which the
parties reached accord was for a clause, requested by the Respondent, that
would give the Respondent the right unilaterally to grant general wage increases
when in its judgment conditions justified such action. When after the three
meetings the Respondent had still shown no disposition to budge from the
contract proposal it had submitted on October 5, a proposal the Union was
unwilling to accept in that precise form, the conciliator, on November 11,
declared it as his judgment that an impasse had been reached.
5. The Respondent makes the 7%-cent wage increase effective for unit employees
On November 13 Bradshaw summoned to his office the employee members of
the Union 's negotiating committee . Bradshaw advised them that the Company
would continue to abide by the working conditions of the old contract, although its
term had now expired. He further informed them that since an impasse in
negotiations had been leached , the Company had decided to hold a meeting of
unit employees that afternoon to announce a 71/2-cent increase in wage rates
effective as of that day. The shop committee interposed no objection to the
Respondent 's proposed action other than to request a postponement of the an-
nouncement to November 15, so that the committee might in the meantime call
one last special meeting to see if it could not gain the membership's authorization
to sign a contract . The Respondent agreed to the postponement . However, at
the union meeting the unit employees once again voted to reject the contract as
offered by the Respondent.
s According to Marcellus , Alexander , as a third alternative , offered to accept a 2- or
3-cent raise Alexander dented making such an offer, insisting that at this time Pe was
seeking an Improvement in working conditions , not an increase in direct wages . He testi-
fied that the 2- or 3-cent figure was mentioned by the conciliator , not by him Sayers'
minutes contain reference to the statement to which Marcelhis testified But reading this
statement in the context of the negotiations at the time persuades me that Alexander, if
he made that statement , was referring not to a direct wage increase but to the cost to the
Respondent of the fringe benefit demanded This view is supported by the succeeding para-
graph of Sayers ' minutes , where Alexander is reported as adding , "just give us 3 hol,days
or give us the contract as outlined until March 1 " On all the evidence , I ain satisfied and
find that Alexander did not specifically propose a 2- or 3 -cent raise , although he may have
mentioned that figure in evaluating the cost to the Respondent of the added benefits the
Union was then seeking.
TEXAS FOUNDRIES, INC. 1655
On November 15, a meeting of unit employees was called by the Respondent.
Bradshaw advised the assembled employees that although the Respondent had
offered the Union all it could, negotiations had nevertheless ended in a stalemate.
He announced that effective November 13, 1951, the unit employees were granted
a 71/2-cent raise in their hourly and base incentive rates. He expressed regret
that the raise could not have been sooner effected on October 2, "as originally
offered to the Union negotiators and to the rest of the plant."
6. The Christmas bonus : the Respondent's decision to grant an additional 5-cent
increase ; the announcement of that decision ; the meeting of January 5, 1951
For some time after November 11, 1951, there was no contact between union
officials and the Respondent. In early December, Bradshaw and Alexander ar-
ranged for a further meeting to be held on December 18. Due to other engage-
ments of the conciliator, however, the meeting was postponed until January 5,
1951.
In the meantime the Respondent, like other employers at that time, was taking
stock of its situation in the light of the expectant Government price and wage
stabilization policies. The Respondent decided to effect an increase in the
prices of its products to its customers. It also decided that it would be to its
advantage, if it would retain its competitive position in what might become a
tight labor market, to effect an upward increase in wage rates before it was
blocked by a wage stabilization order. Discussions on that subject among
the Respondent's officials were begun sometime in November and continued until
about a week before Christmas. At about that time an additional plant-wide
5-cent hourly wage increase was decided upon. Undoubtedly, the Respondent
hoped that the additional 5-cent increase would appease the Union, bring about
a contract settlement, and avoid a strike. But the dominant factor influencing
the decision appears to have been the wage stabilization one. When the decision
was made, it was also decided to grant the increase to nonunit employees at about
the same time it was offered the Union But though the wage increase was
decided upon in December, its announcement was delayed until the date set for
reopening negotiations with the Union.
Christmas fell in the interim. On December 21, 1949, the Respondent, without
consulting the Union, granted all employees, unit and nonunit alike, a Christ-
mas bonus of 3 percent of their annual earnings. The announcement was made
by Colonel Chambers in a speech to all employees in which he reviewed the
Company's business operations for the year and again emphasized it was the
policy of the Company to pay the highest rates economically possible-"When
we have got it and you need it [he said] we will pass it on to you." It had
been the Company's practice since 1943 to grant Christmas bonuses to its em-
ployees, ranging from 3 to 5 percent. In 1949, while the contract with the
Union was in effect, a 3 percent bonus had been paid the unit employees, without
prior consultation with, or subsequent objection from, the Union. There is no
evidence that the Union ever asked the Respondent to negotiate with it con-
cerning the 1950 bonus or that it protested the Respondent's granting of it. So
far as appears, no question concerning it was raised until the complaint in this
proceeding was issued.
At the bargaining meeting on January 5, Marcellus stated that conditions had
changed since the last meeting, resulting in an improved business outlook for
the Respondent. He then read from a prepared statement, which, as subse-
quently appeared, was an extract from a speech prepared by Chambers for de-
livery at an employee meeting to be called for that afternoon. The statement
referred to a sales and production survey made by the Company, the successful
1656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
negotiation of a loan , recent Government orders stabilizing prices, and an in-
crease in the Company 's selling prices, and then went on :
As a result of these four happenings . . . the Company finds itself today
in the position to carry out the policy which the President of the Company
has frequently stated :
Whenever the condition of the Company is such that we can afford
a general pay raise and such a pay raise is justified by the general
business and competitive situation, this Company proposes to make
such a raise, if we are free to do so.
When we've got it and you need it, we'll pass it on to you . . . Therefore,
the Company is granting a pay raise of 50 per hour effective at the be-
ginning of the payroll week during which it is accepted by the Union and
the contract signed s
The offer to the Union of a 5-cent wage increase , as originally announced, was
conditioned upon the Union's acceptance of a 2-year contract with a 6 months'
reopening provision.
The Union informed the Respondent that it had no objection to the Respondent
making the 5-cent wage increase effective for unit employees if the Respondent
wanted to do so. But it made clear that a raise in direct wages was not the
consideration that would buy a contract. At this meeting, as at the earlier ones,
it emphasized that what the Union was primarily concerned with was an im-
provement in working conditions rather than in direct wage rates.
In connection with its demand for improved working conditions, the Union
proposed trading the proffered 5-cent increase for the fringe benefits it had been
demanding-more specifically, for paid holidays, time and a half for over 8 hours,
and time and a half for Saturday work. Alexander insisted upon the Union's
willingness to make this trade when the Respondent claimed the proposal was
not being made in good faith. The Union's proposed swap was rejected by the
Respondent. Marcellus testified it was rejected because of the Respondent's
position that all employees, unit and nonunit alike, had to be accorded equal
treatment on economic terms, and because the Respondent felt it would be placed
on the "hot spot" if one group of employees were given a wage increase that the
other was not.
Objection was taken by the Union to the Respondent conditioning its proposal
upon a 2-year contract, the Union explaining this would only longer delay the
negotiation of the fringe benefits upon which it was intent. In the course of
the bargaining session, the Respondent advised the Union that it could, if it
desired, have a 1-year contract in lieu of the 2-year contract, but without a
6-month wage reopening clause."
Other demands of the Union were also discussed at this meeting. Among
other things, Alexander complained that the Respondent had readjusted stand-
ards on incentive jobs after the 71/2-cent increase had been put into effect with
9 The statement as read omitted that portion of Chambers' speech which announced a
5-cent pay raise for all nonunit employees effective as of January 1, 1951. Moreover, the
last sentence quoted above varied from the delivered speech of Chambers, where, after an-
nouncing an immediate 5-cent increase for nonunit employees , he stated :
This same pay raise of 5$ per hour is being offered to the proper representatives of
the Union and If the Union accepts within the present work week the same pay raise
,of 50 per hour will become effective for [unit employees].
10 The draft contract prepared by the Respondent after the October 5 meeting provided
for a 1 -year term with a 6-month reopening clause. A like provision had appeared in the
old contract.
TEXAS FOUNDRIES, INC. 1657
the result that incentive employees had not realized anything from the increase.11
In that connection, the Union repeated a request it had made at earlier meetings
that it be furnished with a listing of piecework prices. This request was made
the subject of lengthy discussion-the Respondent's stand on that issue is more
fully discussed in the subsection below-but the Respondent's position remained
unaltered to the end. Another noneconomic subject that came up for discussion
was the Union's demand, contained in its original proposal, that union repre-
sentatives be allowed to visit the plant. On this, too, the Respondent's position
remained unchanged. The same was true with regard to each of the Union's
other demands that came up for discussion.
During or immediately after the luncheon recess, Alexander requested
Chambers to hold off until Monday-January 5 was a Friday-his announcement
to employees of the 5-cent increase, so that the Union might in the meantime
have an opportunity to consider the Respondent's latest proposal at a meeting
that night and possibly come back with a contract. Chambers refused.
That afternoon, while the negotiators were still meeting, Chambers delivered
his speech to the jointly assembled unit and nonunit employees, substantially
as set out above, announcing the immediate grant of a 5-cent increase to nonunit
employees, and the offer of a like amount to the Union, conditional upon accept-
ance that week.
At the afternoon session on January 5, the Union continued to argue without
avail for fringe benefits. As a last ditch proposal, the Union proposed accept-
ing the Respondent's offer with the addition of premium pay for Saturday work
caused by furnace repairs. The Union's proposal was refused, although, as ap-
pears from Marcellus' testimony, the cost to the Company would have been
small and Marcellus himself felt it was a reasonable exception to be made. It
was rejected, testified Marcellus, because of the Respondent's belief that "Alex-
ander was trying to force it down our throats just to make us do something
we didn't think necessary or desirable. So I felt it was not good bargaining
to agree to it." The meeting ended after the conciliator announced the nego-
tiations appeared to him to be at a standstill. Before the meeting adjourned,
the Respondent declared its 5-cent offer would continue to hold good until the
following day if the Union accepted the contract at its meeting that night.
The Union did not accept the contract. Instead it called a strike which began
on January 9, 1951.
C. The position of the parties on specific bargaining issues
It is the claim of the General Counsel and the Union that the Respondent's
bad faith approach to bargaining is reflected in part by the positions it took
on specific issues. Although the meeting of January 5 was not the last, this
would appear as good a point as any to consider the manner in which some
of the Union's specific requests were met by the Respondent through the entire
series of meetings. The bargaining issues considered below are those that were
particularly emphasized at the hearing.
Plant visitation by international representative.12 The proposed contract sub-
mitted by the Union in September asked for a clause that would permit an
11 Actually, as the Respondent demonstrated at the hearing, there had been more upward
adjustments than downward adjustments during that period . While the record discloses
Alexander 's complaint to have been unfounded , I have no doubt that he sincerely believed
it to be true at the time.
12 This was one of the specific issues at the two opening meetings ; It does not appear to
have been mentioned at the next three, but was brought up again at the meeting on January
5, 1951, and after the strike began was listed by the conciliator as one of the strike issues.
1658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
international representative of the Union to visit the Respondent's plant "on
legitimate business." provided he complied with the Company' s rules as to entry
on its premises The Union made clear it was not seeking an unrestricted
right of plant visitation, explaining that its purpose was to allow its repre-
sentative an opportunity to view actual physical conditions and operations
where employee grievances were involved. The Respondent's rejection of the
clause was expressly grounded on its unwillingness to have any international
representative visit the plant during working hours unless and until the plant
was entirely organized. The Respondent advised Alexander, without, however,
offering to put it into the contract, that he might come into the plant on a
Sunday when men were not working, and that if he was particularly interested
in any job the Respondent would set it up for his inspection in the pattern
shop. The Respondent's attempted justification of its position at the hearing,
though not during the negotiations, was that it would have caused disruption
of work to allow Alexander into the plant during working hours. This ex-
planation was not a persuasive one, for it appears that other visitors were al-
lowed through the plant, and the only possible "disruption" to which the Re-
spondent could point was the possibility that other employees might engage
in comment and speculation as to the reason for the visit. It was conceded
by the Respondent that where grievances were involved, a Sunday visit or an
inspection at the pattern shop would not supply as satisfactory a basis for
appraisal of working conditions or operations as would an investigation made
under actual working conditions; it contended, however, an on-the-spot inves-
tigation might be made by the shop committee.
Incentive pay and "board prices." The Respondent like other malleable iron
foundaries operates under an incentive pay system. Employees on most jobs are
paid on the basis of the number of units they produce, subject to a minimum
guarantee rate.13 The unit or piece price of a given job is determined by the
work content of that job. A standard is set up for each job by adding the time
elements of all operations involved, and making necessary adjustments for fatigue
elements and the like. The unit or piece price is then calculated by taking the
number of units that should be produced each hour under the standard and
dividing that figure into the base incentive rate." On all molding work where
the same pattern is used-each pattern being assigned a separate number-the
standard normally" remains constant, unless there is a change in the job
method or in the type of machine used, for example, where a squeezer is used
requiring one operator, as opposed to a cope and drag requiring two. An effort
is made to determine the most desirable job method when the job is first set
up, and, as a result, it only infrequently occurs that a standard will be altered
because of a method change after a job has once been set up. And where given
patterns may be worked on interchangeably on different machines, the Respond-
ent's records will as a rule indicate the standards and piece rates applicable
to that pattern for each machine. When assigned to an incentive job, molders-
but not the Union-are supplied with a job ticket showing the piece number
and description of the job, the piece rate, and the job operations called for.
The Respondent maintains records for each pattern that has been worked on in
the past. The records show, among other things, what standards were estab-
lished and what piece rates were applicable when the job was last run. As the
Respondent's is essentially a jobbing enterprise, the Respondent has accumulated
13 The minimum guaranty is computed on a weekly basis by multiplying the hourly rate
by the number of hours worked
3' The base incentive rate is a negotiated rate which at the Respondent 's plant is higher
than the guaranteed hourly rate.
11 And therefore also the piece rate, except where the base incentive rate is changed.
TEXAS FOUNDRIES, INC. 1659
over the course of years thousands of job items. However, only a minor per-
centage of them will be current at any given time.
Under the provisions of the old contract, which the Respondent sought to
retain, incentive rates were established unilaterally by the Respondent in the
first instance, with the right reserved to employees to file a grievance after a
fair trial period. A time limit of 30 days from the date of the installation of
it new rate was prescribed for the filing of grievances. The contract provided
that once an incentive rate was established it was not to be changed unless there
was an arithmetical or typographical error in the computation of the rate, or
a change in the equipment or methods of production, or "an accumulation of
minor changes of one type or another in the duties or requirements of the job."
During the negotiations, the Union objected to the operation of the wage
incentive system, and complained, among other things, that rates were being
changed on given jobs when they were rerun, often, as a result of inconse-
quential changes not affecting the actual job content. At certain points the Union
suggested the total elimination of the incentive system It also requested the
Respondent to establish by prior negotiation all piece rates, so that the rates
would remain constant throughout the contract term regardless of any change
that might occur in the job content. The Respondent rejected this request as
unfeasible."
In addition, the Union several times during the negotiations requested the
Respondent to supply it with a list of "board prices," at least of those that were
then current. By "board prices," the Union stated, it meant an identification
of each incentive job worked on by name or number and the piece or unit price
established for each. It desired this information, the Union explained, as a
check on the Respondent, so that the men might be assured that the same jobs
were not rerun at different prices, and if there was a change in price it was
because of a change in job content on which the Union would have an opportunity
to negotiate with the Company. The Respondent failed to comply with the
Union's request. At the bargaining meetings and at the hearing, the Company
argued: (1) that a mere listing of jobs by pattern numbers and prices would
be meaningless unless accompanied by a full description of all elements involved
in the job; (2) that it would be too burdensome for the Respondent to make
up such a list in a meaningful form; and (3) that the information desired was
available for each particular job on the production ticket given employees
when they were assigned that job, thus permitting the employees if they desired
to compile their own list of prices in a notebook. With regard to the first two
points much testimony was adduced at the hearing. On consideration of all
of it, and particularly of that given by William Busby, the Respondent's in-
dustrial engineering superintendent, I am satisfied that neither of these points
has validity. Busby testified that although identification of a job by pattern
number was inconclusive-because the method might be changed the next time
the job was run-if the information was desired for the purpose of determining
when and if prices were changed for any reason, a listing by pattern number
and price would be sufficient. Busby's testimony also makes clear that the
task of supplying the information in the form requested by the Union would
merely be a clerical one of copying information from records on file, taking one
man about a week if all molding prices were desired, and substantially less if
confined only to current jobs. Whether the third reason assigned excuses the
Respondent's failure to produce the requested information, involves a question of
law reserved for later consideration.
1e Although the practice of rigidly fixing piece prices by contract is apparently accepted
at least in a certain segment of the soil pipe foundry industry , it is one that apparently
has never been adopted by malleable iron foundries.
1660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Paid holidays. The old agreement, as well as general plant practice, provided
for 6 holidays, not paid for if not worked, and paid for at the rate of time and
a half if worked. The Union asked for pay on holidays, although not worked.
The Respondent stressed the fact that, unlike other plants which paid for
holidays, it provided a daily 20-minute canteen period on company time. It
calculated the annual cost of the canteen period at $52,000, as contrasted to
$26,000, representing its calculated cost of 6 paid holidays-the Respondent's
calculations being based in each instance on its full employee complement rather
than on the basis of those in the bargaining unit. To meet this argument, the
Union offered to trade the canteen period for paid holidays, stating that this
would be preferred by the unit employees. And when the Respondent objected
that this might interfere with production schedules of nonunit employees, the
Union countered by offering to have the unit employees take the same canteen
period but on their own time. Still the Respondent rejected the Union's proposal
for a swap. It said, "No, the Company represents 450-500 people while the
Union represents only about 60. For the benefit of all we can't do it." It also
argued that if it agreed to the trade, the Union would come in the next year
for the canteen period, but would be unwilling to give up the holidays it had
gained.
Furnace breakdowns and Saturday premium pay. The Union advised the
Respondent that its members were especially concerned about the provision
of the old contract permitting the Respondent to work the men on Saturday
at straight time rates where a day's work had been lost during the week due
to the necessity of repairing a furnace breakdown. It asked for time and a
half on Saturday when such work was required. The Respondent argued that
furnace breakdowns occurred only three or four times a year. To meet the argu-
ment, the Union proposed a compromise under which the men would work three
Saturdays at straight time rates, but would be allowed overtime rates for
Saturdays in excess of that number. But this also was rejected, principally
for the reason, asserted with respect to all the Union's fringe economic demands,
that the wage offer had been designed to "wrap up" all economic demands.
For the same reason, the Respondent rejected an alternative union proposal
that men be allowed 4 hours call-in time when after reporting they found no
work available because of a furnace breakdown.
Premium pay for over 8 hours a day. The Union demanded time and a half
when men were required to work in excess of 8 hours a day. The Respondent
resisted on the ground that work on any given day was controlled in part by the
molten iron in the cupola and that it was impossible to gauge with exact accuracy
how much would he required for an 8-hour day. Te meet this argument, the
Union proposed giving the Company a 15-minute leeway, so that premium pay
would apply only to the excess over 8 hours and 15 minutes. This proposal
was likewise turned down on the ground the Respondent wanted all gains to
be wrapped up in the wage increase. Both the General Counsel and the Union
point in their briefs to the fact, established by the record, that in May 1951,
after the Respondent had withdrawn recognition from the Union, it unilaterally
put into effect a working rule under which all employees were paid overtime
over 8 hours a day.
D. Bargaining meetings and other events occurring during the strike
1. The strikers
When the strike began on January 9, there were 58 employees in the certified
bargaining unit. Thirty-five of them went out on strike, most of them remaining
TEXAS FOUNDRIES, INC. 1661
out until its conclusion. As will be more fully developed below, this group was
later joined by a number of nonunit employees who were or became members
of the Union.
2. The bargaining meeting of January 17
Two bargaining meetings were held during the strike, on January 17 and
February 19, 1951."
Noting that he had warned the Respondent that if a strike were called "all
bets would be off," Alexander at the opening of the January 17 meeting presented
the Respondent with 16 demands. Save for 2, all had been raised in some form
or another during the course of prior negotiations, though a few had not been
included in the Union's original proposals and several had apparently been
previously dropped by the Union. An increase in direct wage rates was not
among the demands asserted. The 2 new demands were for recognition of the
Union as bargaining agent of all employees in the plant if the Union were able
to make a showing to the Board of 80 percent membership, and for the reinstate-
ment of all striking employees upon the conclusion of an agreement.
As a proposal for the immediate settlement of the strike, the Union later in
the day offered to return all employees to work and then continue contract
negotiations, if the Respondent would agree to the Union's plant-wide recog-
nition demand. The Respondent refused, asserting that the Union was free to
invoke Board processes to establish its status if in fact it commanded a
majority.
Although Marcellus at one point testified that the 16 demands were presented
on an "all or nothing" basis, the record as a whole does not bear him out.
During the meeting the Union expressed a willingness to negotiate on its de-
mands. It withdrew 1 of its 16 demands, for the processing of grievances on
company time. And in response to a complaint of the Respondent that its
demand for Saturday overtime pay disregarded a concession it had earlier
made to grant 3 free Saturdays after furnace breakdowns, it advised the
Respondent that it would adhere to its earlier concession.
At this meeting the Respondent gave no indication of any disposition to
trade. It continued to insist that its wage offers had been generous, and its
proposed contract a good one. The Union, on the other hand, continued to
emphasize, as it had in the past, that working conditions, not wage rates, rep-
resented the real question. "It is working conditions we want," said Alexander ;
"a little right to have a say-so is worth more to the men who work with their
hands than the mere 5 cents an hour raise." There was little discussion of the
Union's specific demands, the Respondent stating that it would submit its posi-
tion with respect to each of them upon receipt of the demands in written form.
Finally Marcellus remarked that an impasse had apparently been reached
because neither side appeared to be giving in any way. The conciliator agreed
with Marcellus, and, with Alexander noting the Union's willingness to meet
again, the meeting was adjourned without any new date 'being set.
3. The replacement of the strikers
When the strike began, the Union established a picket line. Although at the
beginning of the strike substantially all nonunit employees came to work,
with the progress of the strike an increasing number of them failed to report for
" The Respondent 's negotiators at these meetings were the same as at the earlier ones.
The a'nion 's delegation , however , was enlarged by a substantial number of the striking
employees. Both meetings were attended by the conciliator.
1662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work. On January 23, 1951, the Respondent obtained from the State district
court a temporary restraining order enjoining the Union and the striking unit
employees from engaging in any further picketing , among other things. The
picket line thereafter remained down until about June 1, 1951, when it was
restored following a decision by an appellate court-of which more later.
At the beginning of the strike , the Respondent made no effort to replace strik-
ing employees on a permanent basis. With the granting of the temporary re-
straining order on January 23 , however, the Respondent embarked on an
extensive hiring program . Between January 23 and February 20, 1951, some
26 new employees were hired for jobs in the certified unit. The circumstances
surrounding their hire reflect, and it is found contrary to the assertion of the
Union, that they were hired on a permanent basis. In addition , 5 striking
employees returned to work before February 20, and 4 employees were trans-
ferred into the unit from other jobs, apparently on a permanent basis. It thus
appears that by February 20, substantially all striking employees in the bar-
gaining unit had been replaced.
4. The meeting of February 19, 1951
The final negotiating meeting was held on February 19, 1951. Near the
opening of the meeting , the Union announced it was eliminating two of its
demands-recognition for the entire plant upon an 80 percent showing, and
superseniority for shop committeemen . It stated that it was willing to bargain
on the balance of its demands, but with respect to one of them-the reinstatement
of strikers to their jobs when an agreement was signed-it clearly indicated it
regarded this as a "must."
The conciliator separated the parties . At a private meeting between the con-
ciliator and Respondent's negotiators , the Respondent for the first time expressed
a willingness to recede somewhat from the adamant position it had maintained
on all issues since October 5 , 1950-but not until after it had advised the con-
ciliator that it had succeeded in filling the places formerly held by strikers.
Marcellus told the conciliator the Respondent had been exploring the idea of
trading on money items ; that it hoped at a later date to work out something
with regard to paid holidays, overtime over 8 hours , and premium pay for
Saturday work, but that it was in no position to make any proposal along these
lines at that time He indicated , however, that the Respondent might then be
prepared to recede somewhat from its former stand on call -in pay, advance notice
of layoffs under certain circumstances , and the seniority provision of the con-
tract. As for the reinstatement of strikers , however, the Respondent advised
the conciliator that this was "not in the cards ." All it was prepared to do in
that regard was to set up a preferential list, based on ability and seniority, for
the rehiring of strikers without discrimination as and when further vacancies
occurred The conciliator requested the Respondent to meet with the Union in
joint session, so that the Union might be advised of the positions the Respondent
had taken before him . He suggested , however, that before taking up other items
the Respondent discuss with the Union its demand for the reinstatement of
strikers to see what would happen.
At the joint session which followed , the parties never got beyond the reinstate-
ment demand , the negotiations bogging down on that issue . The Union rejected
the Respondent 's proposal for the return of strikers , insisting it would not settle
unless the Respondent undertook to take back all the striking employees within
2 weeks after the conclusion of an agreement . The other items discussed be-
tween the conciliator and the Respondent at their private meeting were not
TEXAS FOUNDRIES, INC. 1663
reached at the joint session.18 With the conciliator once again declaring that it
looked to him is if an impasse had been reached , the meeting broke up. An
understanding was reached, however, to meet again on March 1.
5. The Respondent withdraws recognition from the Union
On the following day-February 20-the Respondent addressed two letters to
the Union. In one, the Respondent in effect withdrew recognition from the
Union. Questioning the Union's majority status, the Respondent advised the
Union it would be necessary for it "to supply the Company with the legal proof
of such representation before we conduct further bargaining." The other letter
purported to review-inaccurately, it is found-the status of the negotiations as
of the close of the last session, and to cast the blame on the Union for the impasse
in negotiations''
Although Alexander, on February 28, advised the Respondent of his willing-
ness to meet with the Respondent again on March 1, the Respondent canceled
that meeting No further bargaining meeting has been held.
On February 28 Chambers, in a speech to the molders and coremakers then
employed, advised them that the Respondent was putting into effect, as of Febru-
ary 26, the 5-cent increase that had been granted other employees on January 5.
Chambers emphasized that they had lost the benefit of an earlier raise because
the Union had not accepted the 5-cent wage increase when offered and because
the Respondent had not been legally free until an impasse was reached to grant
it to the unit employees. Chambers reiterated a promise made to the employees
at an earlier meeting : "Whenever the condition of the Company is such that
we can afford a general pay raise, and such pay raise is justified by the general
business and competitive situation, the Company proposes to make such a pay
raise if we are free to do so, and that goes for all the so-called fringe benefits
and other employee benefits as well."
Except for the modification of the injunction, nothing further of significance
occurred until late July, when the Union made its first of a series of requests
for the reinstatement of strikers. As the right of the strikers to reinstatement
turns on whether the strike was caused by an unlawful refusal to bargain, it
will be more orderly to make concluding findings on that issue before proceeding
to consider the remaining events.
E. The refusal to bargain; analysis and conclusions
1. No problem is presented in this case with regard to the appropriate unit
and the Union's status as the exclusive representative of that unit. The Re-
spondent ' s answer admits , and it is found , that the certified unit of molders,
coremakers, and their apprentices, more fully described above, is one appropriate
sa Marcellus testified at one point that the Respondent communicated to the Union at
the joint session what had been told the conciliator regarding concessions the Respondent
might make Sayers testified that he was told by the conciliator that such a communica-
tion was made to the Union privately . This testimony , denied by Alexander, is not
credited It is clearly inconsistent with what appears in memoranda made by Marcellus
and Sayers at or about that time Indeed , Marcellus later conceded , after his attention was
directed to such memoranda , that his earlier testimony was in error and that the facts
were substantially as found above
19 The letter asserted that certain positions , found to have been communicated to the
conciliator alone, were taken up in joint negotiation with the Union . Alexander took issue
with these assertions in a letter to the Respondent dated February 28. In a subsequent
letter , the Respondent in effect conceded that these positions were not taken up at joint
session , but expressed its "understanding " that they were conveyed to the Union by the
conciliator.
1664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the purposes of collective bargaining within the meaning of Section 9 (b)
of the Act. The answer takes issue with the allegation that the Union is the
exclusive bargaining representative of all employees in that unit. It is clear,
however, that at least until the Respondent began to replace its striking em-
ployees, the Union commanded a majority of the employees in the appropriate
unit. Whether the Union still enjoys the status of an exclusive representative
depends on the disposition made of other issues in this case. If it is found
that the Respondent unlawfully refused to bargain with the Union and that
the strike was caused by the Respondent's unfair labor practices it would follow
on the facts of this case that the Union's position as the statutory representative
of unit employees has remained unbroken. The principal question is whether
the record as a whole supports a finding that the Respondent failed to bargain
with the Union in good faith, thereby precipitating the strike-and it is to a
consideration of that question that we now turn.
2. We consider first the Respondent's over-all course of conduct, and reserve
for subsequent consideration the positions taken by the Respondent upon specific
bargaining issues claimed by the General Counsel to constitute further viola-
t ions per se of its statutory obligation to bargain.
From September 28, 1951, when contract negotiations began, until February 20,
1951, when recognition was withdrawn, the Respondent met with the Union
whenever requested, conferred with it at length concerning its contract demands,
and at the opening of the negotiations even made a few minor concessions. In
determining whether or not the Respondent bargained in good faith, these are
circumstances that must be weighed in the Respondent's favor. But they are by
no means conclusive on that issue. The obligation to bargain is not necessarily
satisfied by a willingness to attend the conference room, engage in endless dis-
cussion, and even make concessions on a few minor issues. The real question is
whether the Respondent dealt in good faith with an open mind and a sincere
purpose of finding a basis for a mutually satisfactory agreement, or merely
engaged in "surface bargaining" with a fixed predetermination of issues and
without any intent of concluding an agreement on a give-and-take basis.2°
Save for a partial concession to the Union's demand for a reduction in the
allowable time for the processing of grievances and two minor changes in contract
language that the Respondent itself regarded as inconsequential, all made at
the opening of the negotiations, the Respondent made no concessions or offers
of compromise, although the Union made many, in the course of the protracted
negotiations. On all issues of an economic character, including particularly
those relating to the fringe benefits for which the Union was pressing, the Re-
spondent maintained an intransigent stand. Throughout the negotiations (save
possibly at the final meeting) it disclosed no disposition to recede under any
circumstances from its basic position that the wage increases it had already
unilaterally determined to grant nonunit employees represented the maximum it
was justified, from a business point of view, in offering the Union by way of
economic benefits ; that since the wage increases determined upon were intended
to embrace the cost of any fringe benefits that might otherwise have been granted
and to be in lieu of such benefits, it could offer the Union nothing more and nothing
different ; and that to grant the Union something more or something different
would be not only unfeasible but unfair to the nonunit employees whose interests
20 N. L. R. B. v. Whittier Mills, 111 F. 2d 474, 478; V. L. R. B V. Athens Manufacturing
Co., 161 F. 2d 8 (C. A 5) ; N L. R. B. v. Tower Hosiery Mills, Inc., 180 F 2d 701, 705 (C.
A. 5) ; Singer Mfg Co , 24 NLRB 444, 464, enfd. 119 F. 2d 131 (C A. 7), cert den , 313
U. S 595. See also N. L. R. B v. Griswold Mfg. Co., 106 F. 2d 713 (C A. 3) ; N. L. R. B.
v Pilling, 119 F. 2d 32 (C. A 3).
TEXAS FOUNDRIES, INC . 1665
the Respondent was duty bound to protect. All proposals and all efforts at com-
promise made by the Union with regard to economic fringe benefits were uni-
formly rejected, even where the proposals were adjusted to meet specific objec-
tions raised by the Respondent , or where offers were made to trade off requested
fringe benefits for other economic items so as to result in no extra cost to
the Respondent.
The Respondent's failure to make concessions, accept compromise proposals,
or offer any of its own, does not, of course, prove its bad faith, any more than
its mere willingness to meet and confer necessarily establishes its good faith.
The obligation to bargain neither compels agreement nor requires the making
of concessions, and no inference of bad faith may be drawn from such circum-
stances standing alone. Yet these circumstances are not irrelevant in evaluat-
ing the Respondent's entire course of conduct, for while they do not themselves
establish bad faith dealing, in conjunction with other evidence, they may aid to
determining whether the Respondent in fact negotiated with a closed mind and
a fixed determination not to deviate from its originally announced position on
economic issues, regardless of what the total situation at the bargaining table
might develop.
Independent evidence bearing on this question is not wanting in this record.
It has been touched upon but not elaborated in earlier sections of this Report.
It concerns the underlying policy which guided the Respondent in its dealings
with the Union, and the manner in which it chose to effectuate that policy.
In one of his speeches to the employees, Chambers stated :
The Company cannot permit a small minority of its employees to establish
contract provisions which will affect approximately 350 employees whose
best interests the Company is duty bound to respect and protect and that
goes for today and next week and next month.
At the hearing, Chambers conceded the quoted statement correctly reflected
the Respondent's position. According to his further testimony, as well as that
of other company witnesses, the Respondent thought it necessary to maintain
a uniform policy for all plant employees, whether in or out of the unit, with
regard not only to wages but all working conditions and fringe benefits as well.
The policy was necessary, they testified, because of the integration of all plant
operations, a factor which in the Respondent's view the Board had not properly
considered in certifying over its objection a separate craft unit for the minority
group of molders and coremakers. According to Chambers and Marcellus, the
Respondent in 1943 or 1944 had established, and had since maintained, a rate
structure based upon a comparative job evaluation made by a management
engineering firm ; to prevent employee dissension arising from inequities it was
essential to maintain that structure in balance; and the balance could not be
maintained if a wage increase were given one group and not the other, or if
one group were granted working conditions or fringe benefits not enjoyed by
the other. As appears from Chambers' testimony, that policy was discussed
by him with the company negotiating committee. And as appears from Mar-
cellus' testimony, that policy was kept in mind and adhered to by the company
negotiators throughout the bargaining meetings.
The General Counsel argues that, as the Union was the certified representative
of a unit found appropriate by the Board, the Respondent's statutory obligation
required it to bargain with the Union with regard to the wages, hours, and
working conditions of those in the appropriate unit, without taking into account
the effect agreements reached in that unit might have on its economic relations
with employees outside that unit. With that position, I am unable to agree
1666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entirely. I think the Respondent had the right to consider, weigh, and urge
the impact of the one upon the other and the relationship between the two.
But, simply because it considered the unit and nonunit groups as integrated,
at least in certain respects, it could not for that reason adopt a bargaining
position, the effect of which was to shut the door as well as its mind to free
negotiations with the Union as the legal representative of a separate craft unit
found appropriate by the Board. Nor do I agree with the General Counsel
that the Respondent's formulation of a policy on disputed matters in advance
of negotiations is necessarily indicative of its bad faith. That, alone, is not
inconsistent with good faith bargaining. It becomes so, however, where, as here,
the surrounding circumstances reveal a fixed purpose to proceed with a policy
so formulated, regardless of what may be developed in the negotiations. To
hold otherwise is to say that the requirements of good faith bargaining may
under circumstances be made subordinate to an employer's private policy, a
proposition the Act cannot countenance.
What lies at the heart of this case-assuming for the moment the Respondent's
primary motive was to maintain a balance in the wage structure between the
organized and unorganized groups, a premise the General Counsel disputes-
is not the policy itself, but the method the Respondent utilized to effectuate it.
In advance of receipt of the Union's contract proposals and an opportunity to
consider the expense items the Union would demand, the Respondent decided
the maximum amount it could then afford to grant by way of money benefits,
and determined to offer that entire amount in the form of a wage increase.
This the Respondent, of course, was entitled to do. But the Respondent went
further. It also determined in advance of negotiations to announce that in-
crease simultaneously with its offer to the Union as immediately effective for
nonunit employees. Were it not for the uniformity policy to which the Re-
spondent intended to adhere and the fact that the announced increase was all
the Respondent could afford by way of money benefits at the time, this, too,
would have been unexceptionable It was not so, however, in light of the
circumstances mentioned. For, as the Respondent admittedly knew, and in-
ferentially intended, the practical effect of converting its proposal to the Union
into an accomplished fact for nonunit employees was to freeze solidly its bar-
gaining position with the Union. Stated differently, the Respondent knowingly
precluded itself, in light of its stated policy, from thereafter seriously consider-
ing compromises of the Union's fringe demands on a give-and-take basis, for
example, by trading certain expense items demanded by the LTnion for others
nonunit employees already enjoyed. That much was virtually conceded by
Chambers at the hearing n What has just been said is most strikingly illus-
trated by the events which followed the initial impasse declared by the con-
ciliator. Throughout the first series of negotiations', after the Respondent had
made its 71/2 cents wage offer, the Union's main emphasis had been not on a
further increase in wage rates as such, but on added fringe benefits-holiday
21 After stating the Company could not have "varying degrees of benefits existing in a
group that works all together," Chambers testified
Q. Well, operationally could you have taken back the seven and a half cents
an hour increase you gave to the nonunit employees on October 5?
A. Having once made it, no, I don't think we could.
Q. You knew that when you made it9
A. Certainly.
Q. And you knew when you made that offer to them [the Union] that seven and
a half cents an hour was all the Company could economically afford on all business
conditions as they were at that time?
A. That's right.
TEXAS FOUNDRIES, INC. 1667
pay and premium pay for Staturdays and for work in excess of 8 hours a day.
In deciding upon an additional 5 cents increase-for reasons which, it is found,
were primarily unconnected with the contract negotiations-the Respondent
ignored the Union's demands for fringe benefits and chose instead itself
unilaterally to determine the form of the added benefits, though the amount,
according to its position, again represented the maximum it believed it could then
afford. And without giving the Union a fair opportunity to negotiate on the
question of how the added money benefits should be applied, the Respondent
again deliberately elected to solidify its position by granting the wage increase
to nonunit employees at the same time it offered it to the Union. In this instance
the Union made a specific proposal to trade the 5 cents for fringe benefits.
But because it had already determined, with full knowledge of the resultant
consequences, to announce the grant when making the offer, the Respondent,
guided as it was by the uniformity policy it had decided upon, could no longer
negotiate with the Union on compromise proposals of this sort freely, fairly,
and with an open mind. It could only confront the Union with the Respondent's
own unilateral determination, to accept or reject in precisely the form offered.?-
The Respondent's bad faith here, as well as its fixed determination to proceed
undeviatingly along its chartered course, is accented by its flat rejection of
the Union's request for a week-end postponement of the wage increase announce.
ment to employees.
Apparently it is the Respondent's position that neither the effectuation of its
asserted uniformity policy nor the grant of the wage increases to the nonunit
employees necessarily foreclosed it from negotiating in good faith with the
Union on other expense items, because it was still free to reach agreement with
the Union and then adjust the wages and working conditions of nonunit employ-
ees accordingly. This I suppose is true theoretically, but not as a practical
matter ; and, in any event, I am persuaded on all the evidence that, once having
made its unilateral determinations of what to grant nonunit employees the
Respondent neither intended to, nor in fact did, sincerely consider any union
proposal that might enlarge or modify its offer to the Union in a manner that
' At the hearing , Marcellus testified at one point that the grant of the 5-cent wage
increase to nonunit employees , already accomplished , coupled with the Respondent 's belief
that it could not have two sets of working conditions in the plant , was a "strong factor"
In the rejection of the Union's compromise offer. At another point he testified :
Q. After you announced to the employees outside the bargaining unit that they
were to receive a five cent wage increase did you then consider yourself in a position
where you could no longer negotiate with the union on fringe benefits that were to
serve in lieu of a five cent increase insofar as the members of the bargaining unit
were concerned?
A. Ac I understand the term "bargaining," it means to discuss with and to weigh
and consider demands and proposals and not necessarily to accept them That being
the case, we were free to bargain , to discuss with the Union and to weigh the ad-
vantages and disadvantages of anything which they might propose to us.
As it developed , however, the logic of the situation called for us to maintain
the position that the five cents an hour increase was the offer we were going
to stick by on economic matters.
Q. For the reason that it was your view that it would create an intolerable
situation from the standpoint of good employee relations to have those outside the
bargaining unit receive a five cent increase while those inside the bargaining unit
were denied a five cent wage increase?
A. That is correct , and for the further reason that the concession of fringe benefits
tagged "in lieu of" would not actually be in lieu of, and that we would be expected
to make up the five cents before very long, before much time had passed by.
[Emphasis supplied.] '
242305-53 --106
1668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
might be at variance with what had already been established for nonunit employ-
ees. For one thing, the Respondent fully realized that once having announced
a wage increase to nonunit employees it would no longer be in a position to take
it back, in whole or in part, in order to effect the adjustment of which it speaks.
Moreover, while it is true the Respondent never barred discussions of fringe
benefits with the Union, I am convinced that the Respondent engaged merely
in "surface bargaining" on these subjects, without any disposition sincerely to
consider and weigh the Union's proposals in the totality of the bargaining
situation. My conviction in that regard is based not only upon the Respondent's
consistent refusal to make any concession, however minor, on economic items,
even when they were adjusted to meet specific objections of the Respondent,
or to make any counterproposals of its own. It is based also upon testimony
of the Respondent's witnesses that the company negotiators never so much as
discussed with Chambers the possibility of offering the Union money items
other than in the form of a wage increase, or even so important a point as the
possibility of accepting the Union's proposal to exchange fringe benefits for the
5-cent wage offer. In view of other testimony in the record that Chambers, as
company president, was consulted by the company negotiators on all matters of
policy involving money items, the failure of the company negotiators to take
up with him the subjects mentioned can scarcely be viewed as consistent with
its assertion that it sincerely weighed and considered the acceptance of union
proposals at variance with its own offer.
A willingness to explore common grounds for agreement, to deal with a spirit
of cooperation, and to maintain a state of mind open to the possibility of modi-
fying on a give-and-take basis positions previously asserted, is of the essence of
good faith bargaining. That requirement is not met where, as here, an em-
ployer wilfully removes the possibility of any real negotiations with a bargaining
representative by deliberately adopting and then pursuing a plan under which
he unilaterally decides the amount and form of benefits he will give all employees,
puts it in effect for nonunit employees, and then in negotiations with the bar-
gaining representative tenaciously adheres to that decision, without seriously
considering compromise solutions, because to do otherwise would upset a claimed
balance between unit and nonunit employees which he says must be maintained.
The clear import of such a tactic is to deny the bargaining representative the
full recognition to which it is entitled, to hold in contempt the appropriate unit
for which that representative is certified, and to impose upon the unit employees
wages and working conditions arrived at not as a result of the collective bar-
gaining process the Act contemplates, but as a result of the employer's own
unilateral determination. That is not to suggest, of course, that where a plant
is partly represented and partly unrepresented, an employer must negotiate
with the represented group before making unilateral determinations affecting
the unrepresented one. It is to say, however, that in the rare situation where
an employer considers his action affecting the one must necessarily control his
position toward the other, an employer, faced with a choice, may not wilfully
preclude himself from genuine collective bargaining with the legal representative
of the organized group, by taking action with regard to the unorganized em-
ployees, the purpose or necessary effect of which he knows will freeze his stand
in his negotiations with the legal representative of the organized group. The
alternative in that situation-to negotiate with the union first and then pass on
the negotiated benefits to the unorganized employees-may not be a happy one
for an employer who may fear enhancement of the union's prestige among his
unorganized employees. But that is not a legitimate consideration for denying
to employees in an appropriate unit the full measure of collective bargaining
rights to which the mandate of law entitles them.
TEXAS FOUNDRIES , INC. 1669
That leads directly to another point upon which decision here rests.. As in-
dicated earlier , the General Counsel disputes that the Respondent 's bargaining
policy, of allowing the Union nothing more and nothing different by way of wages
and working conditions than that already granted nonunit employees , was pri-
marily motivated as it claims by a desire to maintain an established balance in
the wage structure of all its employees . The Respondent's true motive guiding
it in the formulation and execution of that policy in the negotiations , he asserts,
was to discredit the Union in the eyes of employees by making it appear that the
Union was helpless to gain for them anything the Respondent was not prepared
voluntarily to bestow upon all employees in advance of negotiations . There is
substantial evidence to support the General Counsel's assertion.
Thus, offsetting Chambers ' and Marcellus ' testimony that maintenance of the
wage structure established by the 1943 job evaluation plan was the controlling
consideration , there is uncontradicted testimony that in the previous year a 5-cent
increase had been allowed unit employees . There is also testimony by William
Busby, the Respondent 's industrial engineering superintendent , that the relation-
ship among different jobs established by the 1943 job evaluation plan had not been
consistently followed since that time.
Moreover , there is testimony from the Respondent 's witnesses that at least a
contributing factor in the formulation of its bargaining policy was a desire to
discount union prestige . Thus, Chambers , although disclaiming this to be the
"desired factor ," admitted that , in deciding to grant to nonunit employees what
was being offered the Union and to announce that grant together with the offer,
consideration was given to the fact that the Union was attempting to organize
nonunit employees , and that it would add to the Union 's prestige among them if
benefits were first negotiated with the Union and then passed along to other em-
ployees. Thus , too, Marcellus testified that in formulating its bargaining posi-
tion , the Respondent kept in mind the "over -all picture." That "picture," as
appears from his further testimony , took into account , among other things, that
the Union was seeking to organize employees outside the bargaining unit and
that to give the Union benefits not enjoyed by nonunit employees would lead to
"jealousy , discontent , unhappiness , friction ," adding to the Union 's influence
among them.
That the desire to minimize the Union 's prestige loomed larger in the shaping
of the Respondent 's bargaining policy than its officials would admit while
testifying, is for me convincingly demonstrated by the manner in which the
Respondent chose to announce to its employees the grant of an immediate wage
increase to nonunit employees and the corresponding offer to the Union 23 The
form and timing of the announcements to the jointly assembled unit and nonunit
employees were clearly calculated to impress upon both groups, not only that the
Respondent alone was entitled to credit for the increase , but that the Respondent
intended to offer the Union no more than it had already unilaterally determined,
without reference to the collective bargaining process, to allow nonunit employees.
This appears most clearly from the announcement of the 5 -cent increase when
the Respondent , without adverting to the Union demands or even the earlier
negotiations , announced the increase as representing merely an effectuation of
the Company 's fixed policy : "When we've got it and you need it we ' ll pass it
on to you.,, 24
23 The Respondent's explanation that the plant-wide announcements were designed solely
to prevent rumors and speculation in the plant, I find on the record as a whole to be
entirely unconvincing
2* The Respondent's determination to consider itself the custodian of the employees'
interests and to allow the Union no economic gains not enjoyed by other employees was
conveyed to employees in other ways as well . See, for example, statement, quoted above,
from Chambers' speech to employees
1670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, intrinsic proof that the Respondent' s bargaining policy was bottomed
at least in substantial measure upon a purpose to discredit the Union is to be
found in the negotiations themselves. It is revealed in part by the Respondent's
refusal, not satisfactorily explained, to withhold the plant-wide announcement of
the 5-cent increase to employees. It is revealed also by Marcellus' remarks to
the conciliator, indicating that the Respondent, in rejecting compromise offers
the Respondent might otherwise have viewed as unexceptional, was considering
at least in part the Union's organizational drive among nonunit employees. It
is confirmed by the consistent rejection of every union demand, no matter how
adjusted to meet objections of the Respondent, as well as of every compromise
suggestion that might vary in the slightest degree the Respondent's economic
offers as originally announced to the assembled employees?5
On all the evidence I am persuaded that the bargaining policy formulated and
pursued by the Respondent, to allow the Union nothing more and nothing differ-
ent from what it had already unilaterally determined to grant nonunit em-
ployees, was designed in substantial part, although perhaps not entirely, to
discredit the Union. The injection into its bargaining policy of this element,
foreign to the purposes of collective bargaining, was, it is found, incompatible
with the Respondent's obligation under the Act "to negotiate with an open mind
and sincere desire to reach an agreement in a spirit of amity and cooperation." 29
It was one, moreover, that could only lead, as in fact it did, to a bargaining
attitude tightly sealed against giving serious consideration to any concessions
or trades on economic terms at variance with the Respondent's originally an-
nounced position For all the reasons above set forth, it is concluded that on
economic issues the Respondent, while engaging in the pretense of bargaining, in
fact dealt with the Union with a closed mind and a fixed predetermination of
issues.
3. Apart from the Respondent's general course of dealing, the General Counsel
and the Union contend the Respondent engaged in per se refusals to bargain in
the specific respects considered below :
(a) Individual bargaining: It is contended the Respondent engaged in in-
dividual bargaining by Chambers' speeches to employees announcing the wage
increases and by other speeches, confined to unit employees, in which the Re-
spondent stated its position on issues before the bargaining conference. Be-
cause I consider the Respondent's conduct in these respects not substantially
distinguishable from what the Board found privileged in United Welding Com-
pany, 72 NLRB 944, and Jacobs Mfg. Co., 94 NLRB 1214, I reject this contention.
(b) Probationary period: The old contract provided for a 4-month probation-
ary period for new employees, during which time no grievances could be presented
on their behalf in connection with their discipline, assignments , discharges, or
25 One striking example is the Respondent ' s rejection on October 31 of a short-term
contract with the 71/2-cent wage increase applied retroactively to the date of its receipt
by nonunit employees . Although this could not have affected the prenegotiations wage
structure, it was rejected partly for the reason that it had been decided when the 71/2-cent
wage increase offer was made that It would not go into effect until the week a new contract
was signed Another example is the Respondent 's refusal at the January 5, 1951 , meeting
to accept the Union 's proposal to settle on the basis of the Respondent's offer plus premium
pay for Saturdays under limited circumstances. Marcellus, as appears from his testimony,
did not consider this as an unreasonable exception , and rejected it because lie felt it Ras
not good bargaining to agree to something the Union was trying "to force down the
Respondent 's throat" just to make it do something the Respondent did not think necessary.
What Marcellus is saying here in effect is that the Respondent thought it bad bargaining
for the Respondent to "agree"-the purpose of all negotiations-not because the Respondent
found the proposal itself exceptional , but because It would have exhibited that the Union
could force the Respondent to recede from its original stand.
113 N. L. R. B. v. Atlanta Broadcasting Co., 193 F. 2d 641 (C. A. 5).
TEXAS FOUNDRIES, INC. 1671
layoffs. The Union sought to reduce this period to 1 month, and later agreed
to compromise at 3 months, but the Respondent refused to alter its original
position, arguing the necessity for a full 4-month period. Arguing that an
employee's rights under the Act may not be conditioned upon the length of time
he has served a particular employer, the General Counsel contends that an em-
ployer's insistence upon unilateral control concerning the discipline, work as-
signments and layoffs of even a segment of his employees is a per se violation
of the Act. He concedes that the submission of a probationary provision is not
itself unlawful, but contends that insistence upon its acceptance is. At the
bargaining conferences no issue was raised between the parties as to the prin-
ciple of exemption, only as to the length of its duration. For that reason alone,
and without passing on the validity of the General Counsel's argument generally,
I find no merit to this contention.
(c) Refusal to sign intervm agreement: The General Counsel contends the
Respondent engaged in a per se violation when it refused the Union's compro-
mise proposal of a short-term contract on the Respondent's own terms. It will
be recalled this proposal was made after the Respondent had stated it did not
care to be the "guinea pig" on certain fringe issues, and was designed, according
to the Union, to meet the Respondent's objection by permitting it in the mean-
time to negotiate for such benefits with another area employer with whom the
Union had a contract. This proposal was conditioned, however, upon the Re-
spondent applying its proffered wage increase retroactively to the date it was
put into effect for nonunit employees, and in this respect did not meet the
Respondent's original offer to make that increase effective for unit employees
during the week the contract was signed I am unable to agree with the Gen-
eral Counsel that the Respondent's rejection of the short-term contract, stand-
ing alone, constituted a per se refusal to bargain. However, I believe it must
be considered as an integral part of the totality of the Respondent's conduct,
manifesting its determination not to make any agreement on economic terms
with the Union, other than the precise one it had unilaterally determined upon
and offered to the Union 27
(d) Unilateral granting of wage increases and Chrtstmas bonus: It is con-
tended that the Respondent's conduct in each of these respects constituted both
a refusal to bargain and an independent violation of Section 8 (a) (1). The
Christmas bonus issue may be quickly disposed of. Bearing in mind that a
Christmas bonus had been traditional in the plant since 1943; that the Respond-
ent had unilaterally granted the bonus to all its employees, unit and nonunit
alike, in 1949, when a contract with the Union was in effect; that the Union
had neither asked to bargain about nor objected to the unilateral granting of
the bonus in 1949, or in 1950 either ; and that no issue concerning it appears to
have been raised until the complaint in this proceeding was filed-bearing all
these facts in mind, I am unable to find anything illegal in the Respondent's
conduct. As for the wage increases, the Respondent's defense appears to be,
first, that unilateral action was justified because an impasse in negotiations had
been reached before each wage increase was made, and second, that the uni-
lateral wage increases were agreed to by the Union. It is unnecessary to con-
sider in this case whether the stalemate in negotiations, which, as found. re-
sulted from the Respondent's bad faith bargaining, created such an impasse
as to justify it in thereafter taking unilateral action. Cf. Reed d Prince Mfg.
Co., 96 NLRB 850. For I am satisfied on the facts of this case that the Re-
spondent's second defense is a valid one. Before putting into effect the first
27 See Atlanta Broadcasting Co., 90 NLRB 808, enfd N. L. R. B. v. Atlanta Broadcasting
Co, supra.
1672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unilateral wage increase, the Respondent notified the employee shop committee,
and obtained, I am satisfied, its tacit if not its express acquiescense. With
regard to the second unilateral wage increase of 5 cents, it appears that the
Union's position all along was that it had no objection to the Respondent making
that raise effective for the unit employees if it wanted to, only that the granting
of the raise would neither buy a contract nor satisfy the Union's demand for
fringe benefits. But although I do not find a per se violation of the Act in the
granting of the unilateral wage increases, I do find that the manner in which
they were effected constitutes further evidence of the Respondent's bad faith
in bargaining; for the raises, particularly the second one, were announced in
a way tending to disparage the bargaining agent and undermine its prestige.
(e) Contract provisions for access to plant premises by an international
representative: The contract provision in question and the positions taken with
reference to it at the bargaining meetings have been discussed in section III,
C, above. As the International was the certified representative of the appro-
priate unit, the employees in the unit had a statutory right to deal with the
Respondent through a representative of that labor organization, even though
he was not employed by the Respondent and might be regarded by it as an
"outsider." Indeed, this right, in its general application, was recognized under
the old contract which provided for participation of an international repre-
sentative beginning at the third step of the grievance procedure. The specific
question here is whether representation through an international representative
entitles such representative to plant access during working hours for the pur-
pose of viewing actual physical conditions and operations in connection with
grievances, and whether it was a refusal to bargain for the Respondent to refuse
to agree to a contractual provision for such access?"
Full realization by employees of their right to bargain through a represen-
tative of their own choosing requires that they be permitted the full advice and
assistance of a trained negotiator. And that in turn contemplates an oppor-
tunity for the negotiator to assess the nature and validity of the grievance by
himself viewing the questionable plant equipment or conditions before conferring
with management. As the Second Circuit Court of Appeals stated in the Cities
Service case, supra, at p. 151:
It may be true that many, or even most grievances are settled on the
ship by the ship's committee without the intervention of the Union, but one
of the prime objects of the Union is to afford the seamen advisors and
negotiators who are not continually under the eyes of the master and in-
clined through fear of untoward circumstances to defer to his demand. Its
advice as to major differences would naturally be needed and in many cases
it cannot advise the personnel wisely without visiting the ship and seeing
the conditions under which work is done and of which criticism is made.
That does not mean, of course, that access need be unrestricted. The con-
ditions of access may be determined by collective bargaining. And it may be,
too-although that question appears to be still open 2D-that a union, if it chooses,
28 It is, of course, clear that the denial of access may not be justified solely upon an
inherent right of the Respondent to regulate the use of its private property ; for it must by
now be regarded as well settled that where the statutorily guaranteed right of employees
to engage in collective bargaining would be seriously impeded by the inability of union
representatives, albeit "outsiders," to come upon plant property, the rights of an employer
to regulate entrance to his property must yield so as reasonably to accommodate itself to
the employee rights N. L. R. B. V. Cities Service Oil Company, 122 F. 2d 149 (C A. 2),
enfg 25 NLRB 36; Richfield Oil Corp. V. N. L. R. B, 143 F. 2d 860, enfg. 49 NLRB 593
See also N. L. R. B. V. Stowe Spinning Co., 336 U S. 226; N. L R. B. v. Lake Superior
Lumber Company, 16,7 F. 2d 147 (C. A. 6), enfg. 70 NLRB 178.
20 See Richfield Oil Corp. v. N. L. R. B., supra, at p. 862.
TEXAS FOUNDRIES, INC. 1673
may bargain away the right of access altogether. But, save perhaps for some
compelling overriding reason related to security, legitimate business necessity,
or the like, an employer, if he would fulfill his bargaining obligation, in good
faith, may not take an adamant position the effect of which is completely to
deny a union representative entrance to plant premises to observe working con-
ditions relevant to grievances ; for to do so is unlawfully to restrict and interfere
with the full exercise by employees of their right to bargain collectively.
In this case the Union, as it made clear, was not demanding an unrestricted
license for plant visitation, but one confined to the inspection of working condi-
tions in connection with investigation and presentation of grievances. The
Respondent's position throughout was one of positive and complete rejection of
any such clause; it gave no indication of any willingness to consider and accept
a contractual provision for the viewing of actual working conditions, no matter
what restrictions were imposed. True, the Respondent did verbally represent
that the Union's representative would be welcome to visit the plant on a Sunday
when men were not working. But, as must be obvious, and as the Respondent
conceded at the hearing, this would not provide the same opportunity for evalu-
ation of grievances as would inspection under actual working conditions. The
only objection the Respondent made to the Union's demand at the negotiating
meetings was that it was unwilling to allow an international representative in
the plant during working hours until such time as all employees were organ-
ized30 This objection is not a valid one. Merely because part of his employees
are unorganized, an employer is not justified in refusing to those who are the
full recognition to which they are entitled in the unit certified by the Board as
appropriate. And it is not for an employer to say that the exercise of certain
rights in an established employee unit are to be suspended until organization
has been effected in a broader unit he may consider more appropriate. More-
over, the basis on which this clause was rejected suggests that the Respondent's
real objection was bottomed on its reluctance to grant the Union anything that
might appear to add to its prestige among nonunit employees while they yet
remained unorganized. This further confirms what has been found above to
have been a dominating factor in the shaping and execution of the Respondent's
bargaining policy. If not itself a refusal to bargain, the Respondent's position
on the contract issue here in question at least supplies convincing additional
evidence of the Respondent's bad faith approach to bargaining with the Union.
(f) The "board prices": The relevant facts on this issue have been set out in
section III, C, above. The General Counsel contends the Respondent violated
its obligation to bargain in two respects-first, by its refusal to make the
"board" or piece prices a part of the agreement, and secondly, by failing and
refusing to comply with the Union's request that the Respondent furnish it
with the existing prices. I disagree with the General Counsel as to the first,
but agree as to the second.
I do not consider that the Respondent's refusal to fix by agreement for a
definite term the applicable piece rates constituted either a refusal to bargain
or evidence of bad faith bargaining. Under the incentive system used by the
Respondent, piece rates were determined on the basis of job content, and even
where the same pattern was used the rate was subject to change during the
contract term with a change in job method. Although rates were originally
fixed by the Respondent, they were subject to review and adjustment under
the grievance procedure. In these circumstances, it cannot be concluded that
the Respondent was insisting upon a reservation of the unilateral right to deter-
s° Of the two additional reasons advanced at the hearing , one, that it would have resulted
in plant disruption , has been found unconvincing ; the other , that the shop committee
already had such access , has been shown insufficient as a matter of law.
1674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mine incentive wages. The bargaining requirement of joint determination of
incentive rates is as least minimally met by the provisions for joint participa-
tion at the grievance stage. The objections of the Union to the instability of
rates, to the delays in review, and to its lack of participation in the initial set-
ting of rates, are all matters for the conference room, not for the Board.
The Respondent's failure to comply with the Union's reiterated requests for a
listing of all current piece rate prices is another matter. One of the Union's
principal complaints during the negotiations was that rates were often changed
on jobs when they were rerun because of some inconsequential change in job
method. For that and other reasons the Union took the position that if the
incentive wage system was to be continued, it must be provided with a listing
of at least the current piece rate prices. Whether or not the Union's complaint
was justified is not controlling. The information sought by the Union was rele-
vant to the issue raised in the negotiations concerning incentive pay inequities.
It was also necessary to the Union in order to enable it fully to exercise its
legitimate representative function of policing the operation of the incentive pay
system. With this information the Union would at least know when a piece
rate was changed for any reason, and thus be in a position to determine whether
the reason was a just one, and, if it thought not, to file a grievance within the
limited time premitted under the grievance procedure. Without it, the Union
would be seriously handicapped in exercising its representative function ; for in
that event the Union would have no source of information other than from the
employees themselves, and the large number of different jobs individual employees
perform, the fact that a given job will be assigned to different individuals at
different times, the fact that a substantial period may elapse between two
runnings of the same job, and other practical difficulties, provide substantial
obstacles to the Union's own compilation of a full schedule of piece rate prices.
Under similar circumstances, the Board, with court approval, has frequently held
that an employer's refusal to furnish necessary information to a representative
of his employees shows a lack of good faith in bargaining and constitutes in
itself a violation of Section 8 (5) of the Act 91 For reasons earlier indicated,
the Respondent's contentions that the listing requested would have been mean-
ingless to the Union and too burdensome for the Respondent are found factually
insufficient to excuse its failure to supply the requested information. The re-
spondent's contention that it was justified in refusing to supply this information
because it might have been compiled from production tickets given to employees
when jobs are assigned is clearly without substance. Like contentions have
been overruled in a number of cases .32
4. Upon the entire record it is concluded and found that, by the lack of good
faith evidenced from its whole course of purported bargaining with the Union
since September 28, 1950, as well as by its refusal to supply the Union upon its
request with a listing of its piece rate prices, the Respondent has failed to per-
form its statutory obligation to bargain, in violation of section 8 (a) (5) of the
Act, and thereby has also interfered with, restrained, and coerced its employees
in the exercise of their guaranteed rights in violation of Section 8 (a) (1) of
the Act.
31 Aluminum Ore Company, 39 NLRB 1286, enfd. 131 F. 2d 485 (C. A 7) ; J. H. Allison
& Company, 70 NLRB 377, enfd 165 F 2d 766 (C A 6) ; cert den 335 U. S 905 ; Vanette
Hosiery Mills, 80 NLRB 1116, enfd. 179 F. 2d 504 (C. A. 5) ; General Controls Co, 88
NLRB 1341; Electric Auto-Late Company, 89 NLRB 1192; Leland-Gifford Company, 95
NLRB 1306
32 See, e. g, Aluminum Ore Company , supra; J. H. Allison & Company, supra; Electric
Auto-Late Company, supra.
TEXAS FOUNDRIES, INC.
F. The strike as an unfair labor practice strike
1675
It is found that the strike which began on January 9, 1951, and extended until
the Union's picket line was finally withdrawn on September 15, 1951, was caused
and prolonged by the Respondent's unfair labor practices in unlawfully refusing
to bargain with the Union.
G. Termination of the strike; requests for reinstatement
There is no evidence of any action by the Union before July 26, 1951, to effect
the reinstatement of the strikers, other than the demand, conditioned upon the
execution of a contract, made by the Union and rejected by the Respondent at
the last bargaining meeting in February.
Under date of .July 26, 1951, the Union's attorney, L. N. D Wells, Jr., wrote to
Sam Sayers," Dallas attorney who was representing the Respondent in the in-
junction suit as well as in a decertification proceeding the Respondent had
instituted. The pertinent part of Mr. Wells' letter follows :
. .. the union is anxious to meet with the company in an attempt to nego-
tiate a collective bargaining contract for the bargaining unit defined in the
Board's certification of representatives. Likewise, the union is anxious
to effect reinstatement to their regular positions of all strikers Accordingly,
please accept this letter as the reiterated request of the union that each of
the employees be reinstated and the further request that the company
promptly meet with accredited representatives of the union to negotiate
a collective bargaining contract.
There was no immediate reply to this letter from Sayers or any other rep-
resentative of the Respondent. On August 9, 1951, the Union filed an amended
charge in this proceeding. The amendment added to the original charge of re-
fusal to bargain, which had been filed on February 21, the allegation that :
On or about February 19, 1951 and July 26, 1951, the Union uncondi-
tionally requested reinstatement of said striking employees and the above-
named employer failed and refused to reinstate said strikers.
On August 10, 1951, Sam Sayers replied to Mr. Wells' letter. Mr. Sayers
stated he had limited authority to represent the Respondent and that he was
unauthorized to act for the Respondent with regard either to the reinstatement of
strikers or bargaining with the Union. For these reasons, he added, and be-
cause he had already made that clear to Mr. Wells in a conversation on July
13, he had not thought it necessary to reply to Mr. Wells' letter of July 26. He
was now prompted to answer, wrote Mr. Sayers, only because he had since re-
ceived a copy of the Union's amended charge and had concluded from its refer-
ence to the July 26 date that Mr. Wells was "undertaking to make use of a
situation by said letter." Mr. Sayers went on to express his understanding of
the Respondent's position as to bargaining, that it would not and could not
bargain with the Union unless and until it was legally assured of the Union's
majority status.
Under date of August 17, 1951, Mr. Wells replied to Mr. Sayers, taking issue
with certain remarks made by Mr. Sayers, and repeating in substantially the
as Sam Sayers is not to be confused with Scott Sayers, the Respondent's personnel
manager.
1676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same language his earlier request on behalf of the Union for the reinstatement
of strikers and for a collective-bargaining meeting :
I think [Mr. Wells added] that the simple and fair way to conclude the
controversy-would be for the parties to promptly sit down and arrange for
reinstatement of the strikers and bargain out, in good faith, a collective
bargaining agreement.
He was writing to Mr. Sayers, rather than to Colonel Chambers, Mr. Wells
stated, in order to observe the proprieties. To avoid any question of authority,
however, he was enclosing an extra copy of his letter so that Mr. Sayers could
forward it to the Colonel if Mr. Sayers believed himself unauthorized to act for
the Respondent.
In the meantime, under date of August 16, Colonel Chambers wrote directly
to Mr. Wells, his letter apparently crossing Mr Wells' last letter in the mails.
After mentioning that Mr. Wells' letter of July 26 and Mr. Sayers' reply of
August 10 had only then come to his attention because of his absence from the
office for surgical treatment, Chambers confirmed the correctness of Mr. Sayers'
statements concerning the Respondent's position on bargaining. His letter then
continued :
With reference to the other point you raised in regard to reinstatement of
employees, the Company has never refused to reinstate any striking em-
ployees who have applied for reinstatement .. .
Scott Sayers, our Personnel Manager, will be pleased to discuss reinstate-
ment with any striking employees who apply at his office during office hours
or who request an appointment for any other more convenient time.
The final letter in this series, dated September 4, 1951, is from Mr. Wells to
Colonel Chambers. After noting that he had received no reply to his last letter,
either from Mr. Sayers or Colonel Chambers, Mr. Wells outlined the Union's
position as follows :
1. The union requests that the Company promptly bargain collectively in
good faith with authorized representatives of the Union . . . in the unit
certified by NLRB.
2. The union requests immediate unconditional reinstatement of each of
the persons who went on strike.
3. I note your suggestion that the individual striking employees apply
to your Personnel Manager, Scott Sayers, for reinstatement. Such request
that employees act individually rather than through the union of their
choice, has many times been held by NLRB to itself be an unfair labor
practice .. .
I would appreciate word from you as to your present position in the light
of the union's position above stated.
Chambers testified he first saw the letter of July 26 when he returned from the
hospital about the middle of August ; he was unable to state whether the Respond-
ent's officials in charge of the plant during his absence had previously seen it.
He admitted receiving from Mr. Sayers a copy of Mr. Wells' letter of August 17,
shortly after it was sent. With respect to both these letters, he conceded realizing
when he saw them that they contained a request for reinstatement. According
to his testimony, however, he took the position that the request made in these
letters was not a "formal"one, and was one, therefore, that he was free to ignore.
Asked for the basis of that position, he testified that Sayers was not authorized to
act for the Company on formal demands, and to this he added that he was advised
TEXAS FOUNDRIES, INC. 1677
by counsel that the letters did not contain "official and proper requests for rein-
statement." When questioned specifically as to his reason for not replying to the
September 4 letter, Chambers stated he did not consider it to be an unqualified
demand for reinstatement but one coupled with another request.
On September 6, 1951, the General Counsel issued his complaint in this proceed-
ing. The complaint alleged, inter alia, that since on or about July 27 (presum-
ably the date of receipt of Mr. Wells' first letter) the Respondent had refused to
reinstate strikers listed on schedule A annexed to the complaint. Listed on
schedule A were not only those who had been employed in the bargaining unit, but
also those outside that unit who had refrained from coming to work because of
the strike. A copy of the complaint was received by the Respondent on September
7, 1951.
On various dates between September 7 and 14, 1951, the Respondent addressed
letters to about 18 or more of its striking employees, advising them that jobs
either were then open or might soon become open. The employees were told that
if they were interested in returning to work, they were to report to the Respond-
ent's personnel office not later than the dates specified in the letters, ranging from
September 15 to 22.' The strikers receiving such letters were all in the
bargaining unit.
On September 15, the Union's picket line was removed. This was decided upon
early that morning at a meeting at the Union's hall. At that time it was also
determined to have the strikers present themselves personally in a body at the
Respondent's plant for the purpose of making personal application for reinstate-
ment. Accordingly, after the picket line was removed, the strikers drove to the
Respondent's premises and through the plant gate leading to the area outside the
Respondent's offices. Included in this group were both unit and nonunit employ-
ees, many of the latter being readily identifiable because they were Negroes-all
the unit employees being white. While the bulk of the striking employees re-
mained on the lawn in positions clearly visible from the windows of the Respond-
ent's offices, a committee of four, consisting of Alexander and three employees,
called on Personnel Manager Sayers. Speaking for the group, Alexander advised
Sayers, and also Vice-President Bradshaw, that all of the Respondent's striking
employees were prepared to return to work unconditionally. Sayers, stating he
was acting on advice of counsel, informed Alexander he would not talk to him as a
bargaining representative but would as an individual. Alexander responded by
stating he was there to make an unconditional offer on behalf of all striking
employees to return to work. He further stated in substance that although the
Union was not abandoning its claimed bargaining rights, the demand for rein-
statement was not conditioned on recognition of such rights. Sayers and Brad-
shaw advised Alexander that, while they could not deal with the Union, they
would deal with the employees as individuals and return them to work as and
when future openings occurred.
After the meeting, the Respondent individually interviewed employees who had
received letters asking them to report. Six were selected to return to work in
the immediate future.
Since September 15, 1951, the Respondent has followed in general the policy
of employing, as and when suitable job vacancies occurred, those striking
employees who were members of the bargaining unit. To make room for such
striking employees, the Respondent has not, however, discharged any of their
'* On August 28, a similar letter was sent to Aaron Kelsey , a striker . The Respondent's
files disclose that Kelsey had made a personal application for reinstatement in February.
1678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replacements . Between September 15 and October 15, 1951 ,96 10 unit strikers
were returned to work . Of these only 5 (Cullen McMullen , Homer Brasuell,
William Edwards, Aaron Kelsey, and Arthur 111arbuck ) appear, on the basis of
records submitted by the Respondent , to have been returned to job classifications
within the bargaining unit. While it would appear that some , and perhaps
even all of them, were returned to their former or substantially equivalent
positions , that point was not specifically litigated, and as the General Counsel
has raised some question concerning it, no specific finding will be made here, the
question being reserved for the compliance stage of this proceeding . The re-
maining 7 ( Perry Hopson, Thaxton Baird, Hayden Clevinger , Cecil Miles,
James C. Lawson, Elton Anderson , and Ambers Bailey ) were returned to jobs
outside the bargaining unit, some to jobs of a temporary character , although at
the rates of pay to which they would have been entitled had they not gone on
strike. According to the Respondent , all strikers who have thus far been taken
back returned to work as old employees without a break in their service credit.
None outside the bargaining unit was returned to work, at least up to October
15, 1951. It appears that between September 15 and October 15, 1951, the Re-
spondent hired some three new employees and rehired three former nonstriking
employees in laborer or analogous classifications such nonunit employees may
have been qualified to fill.
H. Discrimination against striking employees
For purposes of consideration here, the employees alleged to have been dis-
criminated against are being divided into two groups-one composed of those
who were within the bargaining unit, the other , of those who were not. The
division is made, not only because those in the second group are alleged to have
been discriminated against by discharge during the strike, as well as by a re-
fusal of reinstatement at the end of the strike , but also because certain addi-
tional questions have been raised as to them that are not applicable to the
strikers in the first group.
1. Unit employees
The employees in this group are those whose names are set forth in schedule A,
hereto attached , and, in addition , Vandy Paulette , whose case is somewhat
different.
Vandy Paulette , a union member who had worked in the bargaining unit,
joined the strike at its inception . On April 2 , 1951, he individually filed a written
application for reinstatement . He was not returned to work, however, until
April 30, 1951 . The complaint alleges, and I find, that the Respondent in
violation of Section 8 (a) (3) discriminated against Paulette from April 2,
1951, to April 30, 1951. As an unfair labor practice striker, Paulette was en-
titled to immediate reinstatement to his former or substantially equivalent posi-
tion when by his application he signified his immediate and unconditional readi-
ness to return , and the Respondent was not justified in delaying his reinstate-
ment because his position had been filled while he was out on strike and it had
no other position immediately available for him.
The other employees in this group , those named in schedule A, all members of
the Union and of the bargaining unit, likewise joined the strike at its inception,
but remained out during its entire course. They are alleged in the complaint to
have been discriminated against by the Respondent 's refusal "on or about July
36 The evidence introduced on this subject shows only what happened up to October 15,
1951, and does not go beyond that date.
TEXAS FOUNDRIES, INC. 1679
27, 1951, and at various times thereafter ," to reinstate them to their former or
substantially equivalent positions in disregard of the Union 's requests made on
their behalf for such reinstatement.36
The applicable law in this situation is settled . As unfair labor practice
strikers , the employees in question were entitled to reinstatement upon uncondi-
tionally offering to terminate their participation in the strike by returning to
work, even though the Respondent to make room for them would have found it
necessary to discharge new employees hired to fill their places during the strike.
It was not necessary for them to make the offer individually or by personal visit
to the Respondent 's employment of&ce ; it was no less legally sufficient if made
on their behalf by the Union or its representative. As the Seventh Circuit
Court of Appeals stated, "An application for work may be made personally or
through an agent in any manner which reasonably brings notice of the applica-
tion to the employer." N. L. R. B. v. Lightner Publishing Corp., 128 F. 2d 237,
239. Indeed, as the Board has held with court approval, for an employer to
insist "upon dealing with the returning strikers on an individual basis as if
they were applicants for new employment" is for him illegally to disregard "the
right of these employees to have the Union as their collective spokesman in dos-
cussing their reinstatement." Houston and North Texas Motor Freight Lines,
Inc., 88 NLRB 1462, enfd. 193 F. 2d 394 (C. A. 5) $' An otherwise unconditional
offer to abandon a strike and to return to work does not cease to be unconditional
merely because the offer contemplates a group return. Draper Corporation,
52 NLRB 1477, 1479, enft. den. on other grounds, 145 F. 2d 199 (C. A. 4). Wheie
an employer is required to reinstate all striking employees , as in the case of
unfair labor practice strikers, his rejection of the unconditional group offer,
though accompanied by an expressed willingness to restore part of the group,
discriminates against all within the meaning of Section 8 (a) (3) of the Act.
See Draper Corporation , supra, and cases there cited.
Application of the law to the facts of this case presents only one problem-de-
termination of the date when the Union made its unconditional request for the
reinstatement of striking employees . I think it free from doubt, and I find,
that such a request was made on September 15, 1951, when, after the withdrawal
of the picket line, Alexander and a union committee called on the Respondent's
personnel manager, while other strikers waited outside , and made an offer on
behalf of all strikers to return to work with no strings attached. The Respond-
ent's response, that it would deal with the strikers individually and return them
to work as and when job openings occurred-including by clear implication a
refusal to displace replacements to make room for the unfair labor practice
strikers-constituted a rejection of the Union's group offer, and in law amounted
to a discriminatory refusal to reinstate the strikers in violation of Section 8 (a)
(1) and 8 (a) (3). That presents no difficulty. The problem adverted to arises
from the contention of the General Counsel and the Union that prior to Septem-
ber 15, 1951, unconditional applications for reinstatement had been made by
Mr. Wells' letters to Mr. Sayers of July 26 and August 17, as well as by
"In the case of two of these strikers-Aaron Kelsey and E P. Johnson- the Respond-
ent's records indicate earlier individual applications for work, on February 21, 1951, by
Kelsey , and on April 2, 1951, by Johnson However, unlike the case of Paulette , the com-
plaint does not single them out for separate consideration , but includes them in the group
for which the Union made mass application . In deciding their cases , I deem myself bound
by the allegations of the complaint
"That is especially true where , as here , the Union is the collective bargaining agent
It also follows from Sections 7 and 9 ( a) of the Act which assures to employees the right
to act as a group, independently of any statutory bargaining agent, in presenting grievances
See Houston & N. T. Motor Freight Lines, supra , Douds v Retail Store Union, 173 F. 2d
764 (C. A. 2).
1680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his letter to Colonel Chambers of September 4, 1951. The precise date of the
discrimination is important in connection with the back-pay remedy.
Although not free from doubt, I am not persuaded the record sufficiently
establishes a discriminatory refusal to reinstate before September 15, 1951.
Ordinarily there can be no refusal without an effective application. And to be
effective the application must be in such form as to make it clear that, without
more being done, the strikers are prepared upon acceptance of their reinstatement
application immediately to return to work and terminate their strike activity.
In that respect, Mr. Wells' letter of July 26 is equivocal. Conceivably it may
be read as containing two requests completely independent of each other-a
request for reinstatement and a request to bargain-and as expressing a readi-
ness to terminate the strike if the reinstatement requests were granted, regard-
less of the Respondent's position on the bargaining request. So construed, the
reinstatement request would, of course, be unconditional. But it may also be
construed to mean-and in the posture of this case, it was at least open to that
construction-that the Union was holding out two conditions for the termination
of the strike, reinstatement and bargaining recognition, and would end the strike
only if both were met. Interpreted in this manner, the reinstatement request
was not unconditional, for the return to work was also made dependent upon
the Respondent's agreement to bargain. It was no less conditional because the
Respondent was then under a legal duty to bargain with the Union ; for it re-
quired the Respondent, as a condition to the Union's termination of the strike,
both to remedy the very unfair labor practice against which the strike was
directed and to abandon the legal position it was asserting. See Foote & Davies,
66 NLRB 416.
Mr. Wells' letter of August 17 simply reiterated his earlier request in sub-
stantially identical language and, therefore, stands in no better posture. Indeed,
the portion of the letter above quoted appears to reinforce the view that what
the Union was then seeking, in order "to conclude the controversy," was a meet-
ing with the Respondent which would serve the dual purpose of arranging for
reinstatement and negotiating an agreement. Here, too, there was no clear
indication of the Union's intent to abandon the strike unless and until the Re-
spondent at least expressed its readiness to negotiate. Nor had the Union's posi-
tion by then become otherwise clarified by the charge which had been filed in
the meantime and had come to the Respondent's attention. True, the amended
charge referred to an unconditional request for reinstatement on July 26, 1951,
the date of Mr. Wells' first letter, but it also coupled that date with February
19, 1951, the date of the last bargaining conference. At that time, the Union
had also asked for reinstatement, but had made it clear that the strike would
be continued until a contract was negotiated. Thus, reference in the charge to
the "unconditionally requested reinstatement" on July 26 might fairly be read
as substantially a reiteration of the Union's position on February 19.
Finally we come to the letter of September 4. Though set up and phrased
somewhat differently, the substance of the Union's position as expressed in this
letter appears to me not substantially different from what was stated in the
two earlier letters. A request for "immediate unconditional reinstatement,"
where, as here, it is coupled in the same letter with a bargaining demand, it not
necessarily the same as an "unconditional request for immediate reinstatement."
Nor is the Union aided by the testimony adduced with regard to the Respond-
ent's understanding of the letters. Like the letters, the testimony is equivocal,
and fails to establish to my satisfaction that the Respondent necessarily under-
stood the letters to mean that the Union was prepared to abandon the strike
without bargaining recognition. In sum, I conclude the General Counsel has
failed to satisfy his burden of proving an alleged unconditional reinstatement
TEXAS FOUNDRIES, INC. 1681
application prior to September 15, 1951. It is found that the Respondent, by
failing to reinstate the strikers named in schedule A on September 15, 1951,
discriminated against them within the meaning of Section 8 (a) (3) of the
Act, and also violated Section 8 (a) (1) of the Act.
2. Nonunit employees
The complaint groups the nonunit employees-listed in schedule B hereto at-
tached-with the unit employees in alleging illegal discrimination against all of
them based upon the Respondent's rejection of the Union's unconditional rein-
statement application made on behalf of all striking employees. The date of
that unconditional application has been found above to be September 15, 1951.
In addition, the complaint alleges separately with respect to the schedule B
employees that they were illegally discharged during the strike, the date of
discharge being fixed at February 2, 1951, except for Willie B. Olford, who it
is alleged was discharged on March 2, 1951. In connection with the alleged dis-
criminatory discharges, however, the General Counsel has made clear on the
record that he is seeking no back-pay remedy for the period from the discharge
dates to the date Of the Union's unconditional group application for reinstate-
ment. As a practical matter, therefore, the remedy would be the same whether
discrimination is found on the basis of the discharges or on the basis of an
illegal refusal to reinstate, or on both u
After the commencement of the strike-beginning on various dates ranging
from January 9, 1951, in the case of Campbell, to January 30, 1951, in the case of
Olford-the employees listed on schedule B, all of whom held jobs outside the
bargaining unit, ceased reporting for work. Except for Jessie Lamb, whose case
has been separately noted, all thereafter remained out for the duration of the
strike. All joined the Union, paid union dues beginning in January and ex-
tending in most cases through July, and, at least during a portion of the strike,
were paid strike benefits by the Union. In addition, a number of them engaged
in picketing activities. It is found that the work of these employees ceased as a
consequence of and in connection with the then current labor dispute between
the Union and the Respondent. It is further found that these employees, by
identifying themselves with the Union and by ceasing to work during the strike,
gave aid, support, and assistance to the Union and joined and made common
cause with the strike and concerted activities of their fellow union members
who were within the bargaining unit.
The Respondent, through representatives of its personnel office, attempted
to contact all in this group shortly after they first failed to report for work.
Inquiry was made of those contacted as to the reasons for their failure to
report. One of the questions asked of them was whether they were afraid
to cross the picket line.38 In response several stated that they were, according
to memoranda in the Respondent's personnel files. Only three of the employees
to whom such responses are attributed testified as witnesses. One, George
38 One exception should be noted. Jessie Lamb, one of those listed In schedule B, per-
sonally applied to return to work on May 16, 1951, was given a job other than his prestrike
job on May 17, 1951, and on May 21, 1951, was transferred to his prestrike job classification.
If discrimination against him Is to be found at all, it must be on the basis of his discharge.
Such a finding would require as an appropriate remedy a reinstatement order for, though
It appears he has been restored to his former job, it does not appear he has been reinstated
to all the rights and privileges previously enjoyed by him In that job-his personnel record
Indicating he was "reemployed," presumably as a new employee, rather than "reinstated."
But, because of the short interval elapsing between the date of his application and the
date of his reemployment, no back-pay order would appear warranted In his case.
39 One of the Respondent's purposes in eliciting this information may have been to
prepare for the Injunction proceeding it was then contemplating
1682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Overshone, admitted making that statement. He testified that when asked that
question he "just told [Scott Sayers] I was scared so he would leave me alone,
you know, be bothered because I was a member of the Union . . . I wasn't
scared." According to Overshone's further testimony, undenied by Sayers and
credited, he also informed Sayers at the time that he was a member of the
Union and would be back "when things settled down." Overshone was one of
those who inarched on the picket line after it was restored The second wit-
ness , Theodore Gilders, another employee who later carried a picket sign, ad-
mitted he may have said he was afraid, but testified that was not his actual
reason. According to his testimony, not denied by Sayers in that respect and
credited, he informed Sayers that he wanted to and needed to work, but would
not come back as long as the strike continued. The third employee, Joseph
Leonard Murray, denied flatly making the statement attributed to him. Ac-
cording to Murray, he simply stated to the Respondent's representatives that
he would not be back until the strike was over. The Respondent's representa-
tives who spoke to Murray were not called as witnesses, and Murray's direct
testimony on this point is credited over that of the hearsay records.
On February 2, 19