Textron Inc.

National Labor Relations Board - Board Decisions

Jan 9, 1970

180 N.L.R.B. 606 (N.L.R.B. 1970)

606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Indiana Metal Products, a Division of Textron Inc.
and United Steelworkers of America , AFL-CIO.
Case 25-CA-2971
January 9, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On March 6, 1969, Trial Examiner Arthur M.
Goldberg issued his Decision in the above -entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision together with a supporting brief, and,
subsequently, errata to correct the aforementioned
exceptions and brief. Thereafter, the Charging Party
filed cross-exceptions to the Trial Examiner's
Decision together with a supporting brief. The
Respondent filed answering briefs in answer to the
exceptions, cross-exceptions, and briefs of the
General Counsel and the Charging Party.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and
cross-exceptions, the briefs, and the entire record in
the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner only to the extent consistent herewith.
The Trial Examiner concluded that Respondent
did not violate Section 8(a)(5) and (1) of the Act in
the course of its bargaining with the Union. We
disagree with this conclusion.
1. The chronology of this case, as detailed in the
Trial, Examiner ' s Decision , is a long and complex
one. In brief, the Union was originally certified on
August 30, 1965; there were 22 collective-bargaining
meetings between November 1965 and November
1966; the Union struck in August 1966 in support of
its demands; in October 1966 a petition for
decertification was filed and after the election and
appropriate exceptions to the Regional Director's
report on challenged ballots, certain ballots were
'Respondent 's motion to strike General Counsel's exceptions and its
opposition to General Counsel ' s motion to correct exceptions are hereby
denied as we find the General Counsel 's exceptions and brief substantially
comply with the requirements of the Board Rules and Regulations.
Respondent's motion to strike the cross-exceptions and brief of the
Charging Party is hereby denied as without merit, as the cross -exceptions
and brief comply with Board ' s Rules and Regulations.
180 NLRB No. 96
counted and the Union certified on July 5, 1967.
Following the recertification there were bargaining'
meetings on August 29, 1967, and September 28,
1967.
At the meeting of September 28, 1967, the
Respondent submitted a document which allegedly
was a "final offer ." If it was offered as such, then,
as the Trial Examiner noted , we must conclude the
Respondent unlawfully bargained to impasse
because the proposal , made soon after bargaining
was resumed following a 10-month hiatus , inter alia,
incorporated nonmandatory subjects of bargaining,
withdrew prior commitments , and reiterated
adherence to adamant positions on mandatory
subjects of bargaining . The Trial Examiner,
however, decided the proposal of September 28,
1967, was put forward as a basis for further
bargaining and that the General Counsel had failed
to establish that the Respondent insisted to impasse
on its proposals . We find otherwise.
In reaching his conclusion , the Trial Examiner
relies primarily on his discrediting of the testimony
of Earl Riffe , the union representative , who testified
the proposal was made as a "final offer ,"2 and on
the credited testimony of Edward Fahy, the
Respondent's Counsel and chief negotiator, who
denied presenting the September 28, 1967 , document
as a "final offer ." However, the Trial Examiner also
found Dale Bryant , who at the time of the
negotiations was president of the Union local, to be
a credible witness , and Bryant testified that at the
September 28, 1967, bargaining session the
Company indicated that this was its final proposal.
Moreover , only 2 days later, on September 30, 1967,
Fahy wrote Riffe a letter in which he stated:
The management of Indiana Metal have
considered your suggested changes in the
company 's final offer. In view of the concessions
contained in that final offer, the company does
not agree to make any further changes. The
proposal presented at our September 28 meeting,
therefore , stands as written and represents the
company 's final offer. [Emphasis supplied.]
In arriving at his conclusion that the proposal of
September 28, 1967 was not intended as a final
offer , the Trial Examiner resolved the conflict
between the two credited witnesses , Fahy and
Bryant , by hypothesizing that Bryant, an
inexperienced bargainer , was "confused" as to the
source of the term "final offer ," and that it is not
"unreasonable" to conclude the term was first used
in the Union caucus during the negotiating meeting.
rrhe Trial Examiner appears to rely in part on his "knowledge" of
events connected with the attempted settlement agreement on May 6, 1968,
in discrediting Riffe' s testimony concerning September 28, 1967. We note
that the record before us does not contain the material necessary for. us to
consider the justification for the Trial Examiner 's conclusions on Riffe's
role in the settlement aa; mpt and furthermore we note that part of the
Trial Examiner 's conclusion is based on conjecture as to Riffe's
contribution to the Charging Party's formal opposition to the settlement
proposal.
INDIANA METAL PRODUCTS 607
As for the letter of September 30, 1967, the Trial
Examiner accepted Fahy's explanation that since the
Union intended to submit the proposal to its
membership, that proposal became a final one, and
so, according to the Trial Examiner, it was the
Union's action which established the proposal as a
final offer.
We do not believe that the record supports the
rationale of the Trial Examiner. Bryant's testimony
clearly shows that the Respondent's position on the
September 28, 1967, proposal as a final offer, was
revealed after the union caucus and while the
negotiators for both sides were meeting jointly.3 We
see no reason to convert this testimony into a
conclusion that Bryant heard the phrase "final
offer" in the union caucus. Furthermore, Bryant's
recollection is buttressed by the Respondent's letter
of September 30, 1967. Therein Respondent most
emphatically designated its contract proposal of
September 28, 1967, as a "final offer." Even were
we to believe it legally appropriate to consider
Respondent's explanation for the clear and
unambiguous wording of the letter, we would
conclude that this proposal was intended to be final.
Nowhere in this letter, or elsewhere, did Respondent
indicate that it wished to modify its terms, meet
again with the Union, continue bargaining or in any
way have the contract proposal of September 28,
1967, construed other than as a "final proposal."
Moreover , Respondent ' s explanation for its
reference to the proposal as a "final offer" does not
bear scrutiny, and in our view Respondent's written
word must be held decisive of Respondent's intent.
Accordingly, we find that the proposal of September
28, 1967, was presented by Respondent as a final
offer, that this made further negotiations futile, and
that the Respondent unlawfully bargained to
impasse on its offer which contained nonmandatory
bargaining subjects, withdrawals from prior
commitments , and adherence to adamant positions
on mandatory subjects of bargaining.
Furthermore, we find that as of September 28,
1967, Respondent was bargaining in bad faith -
even if the proposal of that date was not set forth as
a final offer. Thus, after 2 years of bargaining,
Respondent not only adhered to, and made a
condition of agreement, its proposal on a
nonmandatory subject of bargaining that the
number of employees who could serve on the
Union's committees be limited, it added on that
date a requirement that employees selected to serve
on the negotiation and grievance committees have
"3 full years of seniority." In addition, proposed
clauses such as those pertaining to management
functions and grievance procedures , discussed more
fully, infra, were so restrictive and limiting , and the
withdrawal of prior commitments so numerous, that
"' . and we returned and Mr . Riffe said . . . that he didn 't feel that
they had done anything to help settle this thing . In fact, that they had
made it worse or had lust watered the thing down from the last proposal.
The company indicated that this was their final proposal to us."
we cannot view Respondent as merely an adamant
or hard bargainer. Rather, it is apparent when the
full picture is surveyed, that the Respondent was
determined to present a contract document which
was calculated to frustrate agreement, produce a
stalemate, and undermine the statutory
representative, all in violation of Section 8(a)(5) and
(1) of the Act.4
2. On November 2, 1967, Respondent advised the
Union that effective January 1, 1968, the
Respondent was instituting three changes in the
conditions of employment which had been part of its
September 28 proposal. In view of our conclusion
that the impasse in bargaining resulted from the bad
faith bargaining of Respondent, we find that these
unilateral changes in wage rates and other terms and
conditions of employment constituted a violation of
Section 8(a)(5) and (1) of the Act. Nor did the
Union's failure to respond to the Respondent's
notice reflect a waiver of bargaining on those issues.
Such waiver must be clear and unequivocal.5 To the
contrary, the Union thereafter on November 13,
1967, filed the charge in this case, indicating its
conclusion that, in view of Respondent's bad faith
bargaining, to request further bargaining would be
futile.
3. We also find that subsequent to the proposed
settlement agreement of May 6, 1968, Respondent
continued to bargain in bad faith.
From May 8, 1968, to August 2, 1968, the parties
met some 12 times. Fahy testified that the
nonmandatory subjects were first taken up and
disposed of.' Among the items still unresolved were
the issues of management rights and arbitration. It
is the nature of the company proposals in these
areas, coupled with its tactics on nonmandatory
items and previously agreed upon items, that
convinces us that Respondent's real purpose was to
frustrate bargaining and undermine the Union.
The grievance procedure proposed in September
1967 ran to 8 pages; provided that the ultimate step
of arbitration rested on the mutual consent of the
parties; detailed in great length the arbitration
'See Stuart Radiator Core Manufacturing Co. Inc, 173 NLRB No 27.
In reaching this conclusion we note that the Trial Examiner accepts as
truthful the testimony of Carl Collins that in late May or early June 1967,
Harold Harper, then Respondent ' s Plant Manager , stated that a Union
victory (in the decertification election ) would do no good as the company
would continue to stall and by the end of the year would have enough new
employees to vote the Union out . In view of Harper 's position and the
obvious need he would have to know current circumstances concerning
employment and production , it is difficult for us to accept, as did the Trial
Examiner, Fahy' s explanation that Harper was a shopman not involved in
bargaining and that Fahy had no discussions with him . Moreover , no such
disclaimer was elicited from Val Pemberton who, as General Manager of
the plant , would have constant contact with Harper , and who was with
Fahy a member of Respondent's bargaining team.
'Insulating Fabricators , Inc.. Southern Division , 144 NLRB 1325, 1332,
enfd . 338 F 2d 457 (C.A 4)
'That the parties were able at this time to rapidly resolve the issues on
these nonmandatory items, supports our conviction that Respondent 's prior
adamant , if not unlawful , position on such nonmandatory items,
contributed to the impasse and reflects a lack of genuine desire to reach
agreement.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
procedures; and excluded from the arbitrator's
jurisdiction, inter alia , any authority reserved to the
Respondent, including those covered in the
Management Functions article, any issue discussed
during negotiations which was not expressly
incorporated in the agreement, and any issue which
was the subject of mandatory bargaining under the
Labor Management Relations Act. Coupled with
this was the Management Functions article of the
September 28, 1967 - parts of which represented
additional management rights added to earlier
proposals - which reserved to Respondent all
powers except those specifically abridged; and which
otherwise extensively set forth, among other things,
Respondent's exclusive control over plant
management, subcontracting, business operations,
hiring on a permanent or temporary basis,
establishment of hours of work, assignment of
employees, and establishment of standards of
performance. After negotiations resumed in May
1968, Respondent proposed another wide-ranging
Management Functions article' which placed in its
exclusive power most of the terms and conditions
normally associated with employment, but which
also added as a provision a clause reciting that the
enumerated rights were "not all inclusive, but
indicate the type of matters or rights which belong
to and are inherent to management."
Thus, the cumulative effect of Respondent's
proposals, both in September 1967 and in the
negotiations subsequent to the attempted agreement
of May 1968, was to retain for the Respondent
exclusive control over almost all the terms and
conditions of employment, and to permit the Union
to seek redress through arbitration only on limited
issues, and then only when and if the Respondent
acquiesced in the use of arbitration.
We think the Union's rejection of these clauses
and its efforts to ameliorate their onerous effects
were reasonable and understandable efforts to
protect the bargaining unit from erosion and should
not, as was done by the Trial Examiner, be
characterized as a stance as adamant as that of
Respondent. As we have said before in a case in
which the employer would have similarly limited the
application of the grievance procedure, an
employer's insistence on a management rights clause
does not in itself violate the Act, but the nature of
the employer's proposals and other matters are
factors in assessing the company's motivation in
approaching negotiations, and rigid adherence to
certain proposals may indicate an intent to avoid
agreement or produce a stalemate in order to
frustrate agreement and undermine the bargaining
representative.'
Accordingly, we find that Respondent did not
meet the tests of good-faith bargaining in September
1967 or after negotiations were resumed in May
1968, and that Respondent has, therefore, engaged
in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
Upon the basis of the foregoing findings, and on
the record as a whole, we make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All production and maintenance employees of
Respondent, including setup men, inspectors, the
truckdriver-general utility man, shipping and
receiving employees, draftsmen, drafting department
clerk, leadmen, chief inspector, and watchman,
employed at its Rochester, Indiana, plant, exclusive
of all office clerical employees, all professional
employees, guards and all supervisors as defined in
the Act, constitute a unit appropriate for the
purpose of collective bargaining within the meaning
of Section 9(b) of the Act.
4. At all times material herein, the Union has
been the exclusive bargaining representative of the
employees in the aforesaid unit within the meaning
of Section 9(b) of the Act.
5. By refusing on or about September 28, 1967,
and thereafter, to bargain in good faith with the
Union as the exclusive bargaining representative of
its employees in the aforesaid appropriate unit, and
by unilaterally changing wage rates and other terms
and conditions of employment without having
bargained to a good faith impasse on these subjects,
Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a)(5)
of the Act.
6. By the foregoing conduct, Respondent has
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices within the meaning of Section 2(6)
and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Indiana Metal Products, a Division of Textron Inc.,
Rochester , Indiana, its officers, agents , successors,
and assigns, shall:
'G. C Exh ► 0
'As we said in Stuart Radiator Core Manufacturing Co, Inc, fn. 4,
supra.
An evaluation of all Respondent ' s proposals herein indicates that
Respondent was determined to force the Union to abandon its rights to
be consulted regarding practically all disputes that might arise during the
term of the contract relating to terms and conditions of employment,
i e., to waive its statutory right to bargain collectively Since Respondent
could not have offered them with any reasonable expectation that they
would be acceptable to the Union, we can only conclude that
Respondent did not approach negotiations in good faith and with the
intent of reaching an agreement
INDIANA METAL PRODUCTS
1. Cease and desist from:
(a) Refusing to bargain collectively with United
Steelworkers of America, AFL-CIO, as the
exclusive representative of the employees in the unit
described hereinabove.
(b) Unilaterally changing wages and other terms
and conditions of employment without having
bargained to good faith impasse with the Union on
these subjects.
(c) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise
of rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain collectively with United
Steelworkers of America, AFL-CIO, as the
exclusive representative of the employees in the unit
described hereinabove, and if an agreement is
reached embody such agreement in a signed
contract.
(b) Post at its plant in Rochester, Indiana, copies
of the attached notice marked "Appendix."' Copies
of said Notice, on forms provided by the Regional
Director for Region 25, shall, after being duly
signed by Respondent's authorized representative, be
posted by it immediately upon receipt thereof, and
be maintained for a period of 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director for Region 25, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
'In the event this Order is enforced by a judgment of the United States
Court of Appeals , the words in the notice reading "Posted by order of the
National Labor Relations Board" shall read "Posted pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
Posted by order of the National Labor Relations Board
an agency of the United States Government
WE WILL, upon request, bargain collectively with the
United Steelworkers of America, AFL-CIO, as the
exclusive representative of our employees in the
appropriate unit described below and if an agreement is
reached embody such agreement in a signed contract.
The appropriate unit is: All our production and
maintenance employees, including setup men,
inspectors, the truckdriver-general utility man,
shipping and receiving employees, draftsmen, drafting
department clerk, leadmen, chief inspector, and
watchman, employed at our Rochester, Indiana,
plant, exclusive of all office clerical employees, all
professional employees, guards and all supervisors as
defined in the Act.
WE WILL NOT unilaterally change wage rates or other
terms and conditions of employment without bargaining
609
with the Union.
WE WILL NOT , in any like or related manner,
interfere with , restrain , or coerce our employees in the
exercise of rights guaranteed them in Section 7 of the
Act.
INDIANA METAL
PRODUCTS, A DIVISION OF
TEXTRON INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's Office,
614 ISTA Center, 150 West Market Street, Indianapolis,
Indiana 46204, Telephone 317-633-8921.
TRIAL EXAMINER'S DECISION
ARTHUR M. GOLDBERG, Trial Examiner: Based upon a
charge filed on November 13, 1967, by the United
Steelworkers of America, AFL-CIO (herein called the
Charging Party or the Union), on February 29, 1968, the
Regional Director for the Board's Region 25 issued
complaint herein alleging that Indiana Metal Products, a
Division of Textron Inc.' (herein called the Company or
the Respondent) had failed to meet its bargaining
obligations under the National Labor Relations Act, as
amended (herein called the Act). More specifically the
complaint alleged that since on or about August 29, 1967,
in violation of Section 8(a)(5) and (1) of the Act, the
Company has insisted that the Union bargain on
nonmandatory subjects; has taken adamant positions and
has refused to negotiate on mandatory subjects for
collective bargaining; has withdrawn and changed contract
proposals previously made; and has refused to offer or
agree to employment conditions equal to those then in
effect at its plant. The complaint further alleged that on
or about September 28, 1967, the Company submitted as
its final offer "an unreasonable and onerous contract
proposal for the purpose of avoiding reaching an
agreement." Further, the complaint alleged that since on
or about September 30, 1967, Respondent has refused to
meet and bargain with the Union concerning its allegedly
final offer submitted on September 28 and that on
November 2, 1967, the Respondent unilaterally changed
conditions of employment without having bargained to a
good-faith impasse on these subjects. Following issuance
of complaint, the Company on March 4, 1968, made a
Motion for a More Definite Statement as to the
allegations of violation. After Respondent's motion was
referred to a Trial Examiner for ruling the General
Counsel's answer in opposition to said motion supplied the
particulars requested.
Thereafter, the Company served its answer on March
21, 1968, denying all of the material allegations of the
complaint and controverting as well the complaint
assertion that the Union is the current certified bargaining
agent of the employees.
'The Company 's name appears as corrected by motion at the hearing
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hearing on the complaint opened before me in
Rochester, Indiana , on May 6, 1968. General Counsel and
the Respondent were represented by attorneys and
Charging Party appeared by an International staff
representative, Earl Riffe. Textron Inc. appeared by
counsel for the sole purpose of moving to quash a
subpoena duces tecum served by General Counsel
requiring the production of collective-bargaining
agreements between all domestic subsidiaries of Textron
and trade unions. Among the arguments proffered in
support of the Motion to Quash was that of materiality of
the subpoenaed material to the instant proceedings. The
complaint contains no allegation that Textron Inc.
maintains a central labor policy or exercises control over
the labor policy of the Respondent. General Counsel, in
opposition to the Motion to Quash, stated that during the
course of the hearing he would put on evidence that
Respondent's representatives indicated that in refusing to
discuss union security they were following a policy of
Textron. _
On the grounds of materiality Textron's Motion to
Quash was granted but at the same time General Counsel
was advised that if at any time during the course of the
proceeding materiality of the subpoenaed documents was
established I would at that time sustain a subpoena issued
for the collective-bargaining agreements. There was no
showing of materiality during the hearing and General
Counsel made no further effort to subpoena Textron.
During the course of the day on May 6, I encouraged
the parties to enter into a settlement of the instant matter.
General Counsel's position throughout was insistence on a
formal settlement, Board order, and court decree.
Following a 4-hour period of discussions the Union and
the Company agreed to the terms of an informal
settlement pursuant to which bargaining was to resume
immediately, the Union's certification was extended for a
period consistent with Board decisions, and the Trial
Examiner was to enter an order adjourning the
proceedings sine die pending receipt of notice from the
Regional Director of compliance with the settlement
agreement. The Union's International staff representative
secured approval for entry into this settlement agreement
by long distance telephone conversations with his
superiors. General Counsel throughout refused to be party
to this settlement agreement and the standard form of
settlement agreement was changed prior to execution by
the parties to provide for approval of the settlement by
the Trial Examiner rather than the Regional Director as
set forth in the printed form. On the record, prior to entry
of my order approving the settlement agreement and
adjourning the hearing, the General Counsel, at my
invitation and following my statement on the record that
"the Regional Director has refused to approve the
settlement or to be party there to" stated the General
Counsel's reason for refusing to enter into the settlement
agreement. Riffe, the Union's International representative,
was present throughout and remained silent . Thereafter,
after securing two extensions of time, General Counsel
filed his Brief in Support of Request for Permission to
Appeal from the Trial Examiner's Rulings. The
Respondent filed its Brief in Opposition to the General
Counsel's Appeal on June 28, 1968. On July 11, 1968, the
Union filed a Brief in Support of General Counsel's
'Contrary to General Counsel' s expectations, the evidence adduced
during the hearing established that the matter of union security is one
strictly for local determination by each subsidiary company of Textron. Cf
Capitol Aviation. Inc, 152 NLRB 745, 753.
Request for Permission to Appeal from the Trial
Examiner's Rulings. In this brief counsel for the Union
stated inter alia:
While Charging Party did have its Staff Representative
at such hearing, and he did enter into such informal
settlement, this was done because of his understanding
that "the Board" was recommending such settlement.
Only after he had committed himself to that informal
settlement, believing that the Board was in favor thereof
as the means by which Respondent could best be made
to live up to its duty to bargain in good faith under the
law, did he learn that the office of the General Counsel
and the Regional Director were opposed to such
settlement.
On or about July 22, 1968, the Respondent filed a reply to
the Union's brief in support of the General Counsel's
position. On July 25, 1968, the Board issued its order
granting to the General Counsel permission to appeal
from the Trial Examiner's rulings and "in view of all the
circumstances and to effectuate the purposes of the Act"
sustaining the General Counsel's appeal. At the same time
the Board affirmed the Trial Examiner's authority to
accept a settlement agreement pursuant to Section
101.9(d) of the Board's Rules and Regulations. Having
reversed my order accepting the settlement agreement, the
Board directed that the hearing be resumed. On
September 11, 1968, following a motion by Respondent to
the Board that it reconsider its action on the General
Counsel's appeal and the Board's denial of said motion
for reconsideration, I issued an order scheduling a
resumed hearing herein on October 22, 1968.
All parties participated in the resumed hearing at
Rochester, Indiana, on October 22 through 25, 1968, and
were afforded full opportunity to be heard, to introduce
evidence, to examine witnesses, and to present oral
argument. The Union was represented by counsel, who
extended his stay at the hearing beyond the first day only
at the behest of the Trial Examiner but who absented
himself after the second day and the close of General
Counsel's case. Oral argument was waived and briefs were
filed by all parties.
Based upon the entire record in the case, my reading of
the briefs, and from my observation of the witnesses and
their demeanor I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleged, the answer admitted, and I find
that Indiana Metal Products, a Division of Textron Inc. is
and has been at all times herein, a division of Textron
Inc., which is a Delaware corporation with principal
offices at Providence, Rhode Island. At all times herein,
Respondent has maintained a place of business near
Rochester, Indiana (the only location involved in this
proceeding), where it is engaged in the manufacture,
sale, and distribution of screws, fasteners, metal
stampings, and related products.
During a representative 12-month period the
Respondent manufactured, sold, and shipped from its
Rochester plant finished products valued in excess of
$50,000 to points outside the State of Indiana.
I find that Respondent is and has been at all times
material herein an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and meets
the Board's standards for the assertion of its jurisdiction.
INDIANA METAL PRODUCTS 611
ii. THE LABOR ORGANIZATION INVOLVED
The United Steelworkers of America, AFL-CIO, is,
and has been at all times material herein , a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Company's Structure and Operations
The Respondent is one of three plants constituting an
operating division of Textron Inc. The Division's
headquarters are in Rockford, Illinois, and one Carlson is
president of the Division.
The Company is a screw manufacturing operation,
making thread-cutting screws, thread-forming screws,
sheet metal screws, and a variety of special types of
screws and fixtures.
At the time of the hearing herein and during the events
which constitute the alleged unfair labor practices, Val
Pemberton was the Respondent's general manager.
Pemberton credibly testified that to the best of his
knowledge the Company had always employed working
foremen and that this system of supervision was necessary
as the operation ran three shifts and close supervision was
needed in all of the work.
As to subcontracting, Pemberton stated that
Respondent is a service-oriented company and must
provide goods to regular customers upon order. Orders
are received daily and may be for items for which there
will be no additional call for months, if ever. It therefore
becomes impractical to manufacture such items not only
because special equipment would be needed which would
be expensive to obtain but also because the delays in
procurement would extend the time required to supply the
customer needs. Thus, Pemberton testified, if the
Respondent cannot manufacture an item with its present
equipment it must subcontract or lose the order.
B. Chronology of Events
To faciliate explication of the happenings, a chronology
is supplied and further discussion will be organized on the
basis of the three major periods of events which occupied
the attention of the parties.
August 30, 1965: The Union was certified as the
bargaining representative of Respondent's employees
following its triumph in an election conducted on August
20, 1965.
Late September or early October 1965: The Union's
International staff representative Riffe contacted
Respondent and requested information concerning the
Company's wage structure and its pension and insurance
programs.
November 13, 1965: First collective- bargaining meeting
between the parties. Prior to this meeting the Union
submitted a written proposed collective-bargaining
agreement.
December 3, December 8, and December 14, 1965:
Collective- bargaining sessions at which the
Union-proposed contract was the basis of discussion.
March 11, 1966: Collective-bargaining meeting at which
the Respondent submitted its first written
counterproposal.
March 21 August 2, 1966: Fourteen
collective-bargaining meetings between the parties.
August 6, 1966• The Union began its strike against
Respondent.
August 16, September 1, and November 3, 1966: Three
bargaining meetings while the Union's strike continued.
October 10, 1966: Petition for Decertification Election
filed.
December 1, 1966: Pursuant to Stipulation for Election
dated November 10, 1966, election conducted based on
decertification petition, resulting in 10 votes for the
Union, 21 votes against and 28 challenged ballots.'
January 9, 1967: Regional Director issued Report on
Challenged Ballots to which report Respondent filed
exceptions to the Board on January 20, 1967.
June 19, 1967.:1 Board issues order sustaining the
Regional Director's Report on Challenged Ballots and
ordering the counting of certain challenged ballots.
July 5, 1967• Certification issued to Union as
collective-bargaining representative of Respondent's
employees.'
August 29, 1967• First bargaining meeting between the
parties following recertification of Union.
September 28, 1967• Bargaining meeting between
parties with Federal mediator. At this meeting the
Company allegedly submitted "final offer" which is the
basis for complaint allegations of violation.
September 30, 1967: Respondent sent letter to Union
declining to make any changes in "final offer."
October 12, 1967: Union Representative Riffe advised
Respondent that its proposed contract had been rejected
by a vote of the Union's membership.
November 2, 1967: Respondent by letter advised Union
and employees that economic benefits contained in the
'The complaint alleged , Respondent in its brief concedes , and I find that
all production and maintenance employees of Respondent , including setup
men, inspectors , the truckdriver-general utility man, shipping and receiving
employees, draftsmen , drafting department clerk , leadmen, chief inspector
and watchmen , employed at its Rochester plant, exclusive of all office
clerical employees, all professional employees , guards and all supervisors
as defined in the Act, constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of the Act
'Carl Collins , presently employed by the Company as a working
foreman , testified that in late May or early June 1967, while picketing
Respondent 's plant, he was engaged in conversation by Harold Harper,
then Respondent's plant manager . In a discussion of the strike and the
outcome of the decertification election, Harper stated that a Union victory
would do no good as the Company would continue to stall and by the end
of the year would have enough new employees to vote the Union out
Collins testified that it was not unusual for Harper to stop and talk when
Collins was on picket line duty Fahy testified that Harper was strictly a
shopman who had never been involved in the bargaining and that Fahy,
who was chief company negotiator throughout the bargaining, had no
discussions with Harper other than to say hello Harper, who is no longer
employed by Respondent , was not called to testify . This incident was not
alleged as an unfair labor practice I find that both Collins and Fahy are
credible witnesses, that the conversation occurred , but that Harper had no
special knowledge of Respondent 's conduct at the bargaining table
Moreover , the evidence as to bargaining between November 1965 and
November 1966 establishes that the Union's adamant position on the issues
it deemed essential was as responsible for the failure to achieve agreement
as was the Company's insistence on its material positions
'As a defense to the instant proceeding , the Company asserted that the
certification issued on July 5, 1967, was invalid and that the rulings on
challenged ballots were improper . Further, Respondent asserts that it was
entitled to a hearing on its challenges . At no time during the hearing did
Respondent assert that there was now available to it material evidence
newly discovered or unavailable at the time of the representation
proceedings . It is the established policy of the Board to bar relitigating in
cases involving alleged violations of Section 8(a)(5) of the validity of the
underlining certification The Board 's Order on Challenged Ballots and the
certification of July 5, 1967, are binding in this proceeding United Dairies,
Inc, 144 NLRB 153
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rejected contract would be put into effect.
November 13, 1967: Charge filed in instant proceeding.
December 28, 1967: Riffe advised Respondent that the
strike had been terminated and made unconditional
request for reinstatement of all employees.
January 2, 1968• Respondent wrote to Riffe advising
that all employees from whom work was available would
be offered immediate reinstatement and others would be
placed in layoff status until job openings developed. In
time all were offered reinstatement.
February 29, 1968: Complaint herein issued.
May 6 , 1968: Hearing opened in instant proceeding and
the Union and Respondent entered into an informal
settlement agreement approved by Trial Examiner.
May 8, through August 2, 1968: Twelve
collective-bargaining meetings between the parties.
October 22, 1968: Hearing resumed.
An examination of the foregoing chronology discloses
three distinct periods of events. The first is from August
30, 1965, the date of the Union's certification up to and
including July 5, 1967, when the Union was recertified
following the decertification election. All of the bargaining
between the parties which took place during this period
occurred more than 6 months before the filing of the
charge herein and serves as background only. The second
period of events falls between August 29, 1967, the date of
the first bargaining meeting following the Union's
recertification, and the Respondent's action on January 2,
1968, in response to the unconditional request for
reinstatement of the employees. Finally, the third period
of events begins on May 6, 1968, when the Union and
Company entered into the informal settlement agreement,
and concludes with the breakoff of negotiations following
the August 2, 1968 meeting.
C. The Events of August and September 1967
1. August 29, 1967
The first meeting of the parties following the
decertification election was held on August 29, 1967. This
was their first negotiating session in almost 10 months.
Attending for the Union were Earl Riffe, who was the
chief union negotiator throughout; Dale Bryant, local
union president; John Mutcheler, local union vice
president, who at the time of the August 29 meeting was
employed by the Bendix Corporation; and Merle Zwick, a
local union committeeman . Participating for the Company
were Edward J. Fahy, the chief company spokesman
throughout; and Val Pemberton, who was attending his
first negotiation meeting since becoming Respondent's
general manager on February 1, 1967.
At the opening of the meeting Fahy and Riffe fenced
over the issue of responsibility for having convened the
meeting . The mediator finally cut short the discussion,
stating that it was he who had called the parties together
and he suggested that they turn their attention to the
areas in dispute and that they go through the proposed
contract item by item. The discussion which follows is
based upon a synthesis of the testimony of Riffe,
Mutcheler, Bryant , Fahy, and Pemberton. There is no
substantial disagreement among these witnesses as to the
events of the August 29 meeting or of the prior
negotiations on the subjects in dispute. Included in this
treatment of the August 29 negotiations is a brief
summary of the prior negotiations by the parties as to
those matters discussed on August 29.
As to the company-proposed Management Rights
provision, the two major areas of dispute pertained to
subcontracting and foremen performing production work.
In addition, the Union was concerned that the language
submitted by the Company relating to existing food
concessions in the plant would enable Respondent to
entirely discontinue food services for the working force.
During prior negotiations the Union had conceded many
areas of management rights, provided the arbitration
provision afforded a satisfactory arrangement for
resolution of disputes which might arise from
Respondent's exercise of those rights. On the subject of
subcontracting , the Union had agreed that the Company
could continue contracting out work previously
subcontracted and agreed to subcontracting where the
Company did not have the skills, ability, manpower, or
equipment to produce the work in question. However, as
to new subcontracting, the Union had demanded the right
to grieve. Throughout the negotiations Respondent had
insisted upon the unlimited right to subcontract whenever
it deemed such a move economically advantageous. At the
August 29, 1967, meeting the parties adhered to their
previous positions.
On the issue of the foremen performing production
work, the Company adhered to its previous position that
supervisors continue to perform such work without
limitation . The Union on August 29, and in prior sessions,
has sought a limitation of the circumstances under which
foremen could work to purposes of instruction,
experimentation, or in the event of emergencies. In the
discussion of food concessions in the plant, the Company
agreed that, while it reserved the right to change the form
of food concession, it would not discontinue food services
in the plant.
On the issue of union security and checkoff, the parties
early in the negotiations had established their respective
positions and at no time was there give from either side.
The Union stated on August 29, 1967, that its position on
union security was as it had always been, namely, a union
shop and checkoff of dues pursuant to the Steelworkers
standard form of authorization.' The Respondent was
equally adamant, Fahy stating that the economic muscle
of the strike would not cause Respondent to grant a union
shop even if the stoppage continued for 14 years.
Throughout the negotiations the Company had stated its
opposition to any form of forced union membership and
rejected checkoff as well, refusing to be a collection
agency for the Union.
On the subject of union representation and activities the
Respondent maintained its previously stated demand that
the membership of the union committee be limited to four
employees. The Company justified this position on its
concern that a larger union committee would take more
people away from their jobs during working hours. On
this point the Union stated that the composition of its
committees was its sole concern and that the Company
had no right to a role in determining the size or
membership of a union committee.
Arbitration had become an apparently insoluble issue
early in the negotiations. As to a grievance procedure
short of arbritation, the parties had early reached general
agreement . Until the August 29, 1967, meeting the Union
had insisted upon compulsory arbitration of all grievances.
Sometime prior to August 29 the Company had proposed
what was characterized as "permissive arbitration,"
whereby grievances would be referred to arbitration only
'Testimony of Riffe.
INDIANA METAL PRODUCTS 613
when the Respondent agreed to arbitrate and with the
right to strike reserved to the Union on nonarbitrated
unresolved grievances. The Company based its opposition
to compulsory arbitration on its stated conviction that
arbitration had become a crutch in labor relations and the
belief that the spector of a strike would force the company
and union representatives involved in the grievance
procedure to resolve their disagreements. In addition the
Company objected to a third party dictating the
adjustment of company-union grievances. At the August
29 session the Union reduced its demand for compulsory
arbitration to include only grievances arising from layoff
or discharge.' Fahy agreed to discuss this more limited
area of compulsory arbitration with his client but stated
that there was little chance of a change in company
position.
The question of wages was another subject on which the
position of the parties was unchanged. Early in the
negotiations the Union had demanded a 20-cent-per-hour
across-the-board increase. Just before the Union struck on
August 6, 1966, the Company had offered a
5-cent-per-hour increase , which it had paid to the
employees after negotiations were broken off. At the
August 29 meeting the Union again demanded the 20-cent
figure and the Company offered nothing beyond the 5-cent
increase already in effect.
The Union's concern that all strikers be reinstated at
the termination of the work stoppage was placed on the
table for discussion at the August 29 meeting. Riffe asked
that Respondent reconsider its discharge of two strikers
because of their picket line misconduct. Fahy agreed to
take another look at their cases but held out little hope
that Respondent would change its mind as to these two
men. As to the other strikers, Fahy stated that there
would be immediate reinstatement for all for whom work
was available and the other strikers would be placed on
layoff status to be recalled as openings developed. In the
course of this discussion Fahy gave figures to the union
negotiators on current employment including strike
replacements to explain why immediate reinstatement
would not be available to all strikers.
After several hours of meeting the parties agreed to
resume negotiations at the convenience of the mediator,
who had scheduled a vacation. The mediator requested a
fresh copy of the proposed agreement which the parties
were using as the basis for discussion. Fahy offered to
prepare a revised proposal for the next meeting which
would incorporate all changes resulting from negotiations
to that time. The session closed with the mediator's
request that each party review its positions in an effort to
make progress toward meeting the other side ' s demands.
2. September 28, 1967
On September 28, 1967, the parties reconvened for a
bargaining session in the offices of the Federal Mediation
and Conciliation Service in South Bend , Indiana.
Participating for the Company were Fahy and Pemberton
and for the Union Riffe and Bryant . Present as well was
the Federal mediator . Fahy presented a revised contract
proposal which contained many changes from the previous
draft which had been the basis of bargaining until that
time . The major changes are set forth under the article
heading in the order of their appearance in the draft.
Preamble : In the new draft the location of the plant
was specified as being in Richland Township rather than
'Testimony of Mutcheler and Bryant.
in the City of Rochester as in the previous draft. Fahy
testified that this change was made at Pemberton's
suggestion to state the plant's location more exactly.
Recognition and Coverage: The decertification case
number and the date of recertification were inserted in
place of the similar information relating to the original
election in 1965. In the definition of the bargaining unit
"draftsmen and drafting department clerk" were added to
reflect the fact that they had been included in the unit set
forth in the Stipulation for Election entered into following
the filing of the decertification petition. A new paragraph
was added to this provision barring assignment of the
contract by either party. Fahy testified that in prior
discussions Respondent had suggested that a successor
employer not be bound by the agreement if Respondent
sold the plant nor would the Company be bound if the
Union changed its affiliation. It was Fahy's testimony that
this paragraph was inserted for bargaining purposes so
that a definite decision on its inclusion could be reached.
Finally, in this provision language was added limiting
coverage of the agreement to the present plant or to any
extensions, expansion, or relocation within the county in
which it was located. Again it was Fahy's testimony that
this language was included to stimulate bargaining on the
point.
Management Functions Reserved: Fahy testified that at
Pemberton's suggestion language was added reserving to
the Company the right to install automated equipment
that might result in displacement of employees, to install
and conduct merit rating and performance systems, to
conduct a job evaluation program, and to determine the
vendors from whom the Company could purchase
machinery, equipment, and supplies and reserving as well
the right to sell to customers regardless of whether or not
such customers' employees were represented by a union or
a strike was in process at the customers' premises. There
were additional changes specifying the right of
management to assign employees to operations and to
determine production methods. Fahy testified that to meet
a union objection raised on August 29, 1967, language was
added limiting the number of persons who would be
permitted to perform production work for training
purposes and guaranteeing that work performed by
nonunit personnel would not adversely affect the earnings
of unit employees. An additional clause was added to that
section of the Management Functions provision pertaining
to changes in food concessions guaranteeing that food
services would be provided to the employees although the
Company reserved the right to change vending machines.
Representation and Activities: The prior proposal had
placed a limit on the number of employees who could
serve on the Union's committees. To this Fahy added a
requirement that the employees selected to serve on the
Union's negotiation and grievance committee "must have
at least 3 full years seniority." Fahy explained that
Pemberton had expressed concern that new inexperienced
employees would become union officers or committeemen
and that this additional language had been added to
achieve discussion concerning the new general manager's
fears. In prior discussions the Company had stated that it
did not wish the Union going out among the employees
and looking for grievances. Therefore, in the new draft
language was added providing that the Union and its
representatives should not solicit grievances.
Rules and Regulations: In the draft submitted on
September 28, 1967, Fahy added the word "exclusive" to
the prior provision establishing maintenance of discipline
as a company responsibility. Fahy testified that early in
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the negotiations he had suggested that plant rules and
regulations be made part of the collective-bargaining
agreement. The Union had objected to their inclusion in
the contract and had suggested instead that the Company
publish rules with the Union reserving the right to protest
any rule through the grievance procedure. The new draft
contained language establishing such a procedure for rule
making in the plant.
Grievance Procedure: Changes were made to reflect
Pemberton's appointment as general manager and his role
in the grievance procedure. Previous negotiations
concerning arbitration had been directed to the scope of
arbitration, i.e., whether the procedure was to be
compulsory as demanded by the Union or permissive
pursuant to the Company's proposal. In the new contract
draft Fahy spelled out procedures for the actual
invocation and conduct of arbitration cases and specifying
the powers of the arbitrator.
Leaves of Absence: Fahy testified that during
negotiations the Union had objected to a blanket
provision providing that seniority would accrue during all
leaves of absence. Therefore, in the new proposal Fahy
treated each type of leave of absence differently for
seniority purposes and to meet other union objections
eliminated accumulation of seniority entirely during leaves
of absence granted because of pregnancy. In addition
provision was made for leaves of absence for personal
business and farming which were traditional in the plant.
Finally, Fahy added to the leave of absence clause a
section which appeared in the seniority provision of earlier
drafts which specified that in the event an employee failed
to report for work at the expiration of his leave of absence
he would be deemed to have voluntarily quit his
employment with Respondent.
Hours of Work: Fahy testified that during prior
negotiations the Union had asked for a limitation on the
number of hours of overtime that could be required of
employees. The Company had countered with insistence
upon overtime whenever it deemed such work necessary.
In its proposal submitted on September 28 language was
added to that part of the Hours of Work clause defining
the regular schedule of hours to provide that this was not
to constitute a limitation of the number of hours that the
Company could require to be worked each day or each
week. However, a proviso was added which would make
voluntary any work performed over 12 hours in 1 day or
60 hours in a week. On the problem of an overlap between
shifts when the plant worked a three-shift schedule the
Company proposed a new schedule.
Wages: The Company proposed a general increase of
10 cents per hour with continuation of the existing
incentive bonus and merit rating programs.
Vacations: To meet a union request language was
added to the vacation clause providing that in the event of
a split vacation period an employee would receive his
entire vacation pay at the commencement of the first
period of vacation.
Paid- Holidays: The Union had initially requested that
Good Friday be made an additional paid holiday. The
Company had countered that suggestion with a proposal
that an additional holiday be added in the Christmas-New
Year's period to give employees a long weekend with pay.
Prior to the September 28, 1967, proposal the Company
had agreed that the incentive bonus would be included in
computation of each employee's holiday pay. Fahy
testified that at Pemberton's suggestion Good Friday was
substituted in the new proposal as a paid holiday because
the new general manager felt it would fill in during the
long period of the year where no paid holidays existed.
Additionally, the paid holiday clause was changed in the
new proposal by excluding incentive pay from
compensation for paid holidays and eliminating holiday
hours from the computation of weekly overtime. This was
done, Fahy testified, because Pemberton felt that incentive
pay was a reward for extra effort on the part of
employees and a device to obtain extra production for the
Company, benefits which could not accrue to the
Company during holiday hours when no work was
performed. Calculation of holiday hours for the purposes
of overtime was eliminated because the general manager
was of the opinion that this was akin to incentive pay for
the time not worked and in effect the Company would be
paying time and a half for holiday hours.
Bulletin Boards: In its new proposal submitted on
September 28 Respondent eliminated provisions which
had granted permission to the Union to post notices of
vocational and formal education or soliciting support for
recognized charities. Additionally, there was a provision
added providing "[t]here will be no distribution or posting
of notices or any kind of literature upon company
property by employees or by the Union, other that herein
provided." Fahy testified that this last limitation was
added following court decisions upsetting Board
determinations that an employer and union could not by
contractual agreement inhibit employee distribution.
The foregoing specification of changes in the new
proposal submitted on September 28 does not exhaust the
additions or delections from the prior draft. However,
there is sufficient basis for a finding, and I find, that in
this proposal the Company included matters which are
nonmandatory subjects for bargaining (limitations on
membership on union committees and a requirement of 3
years' seniority for membership in such committees,
limitations upon employee distribution other than in the
manner contractually agreed), withdrew from theretofore
agreed conditions of employment (elimination of incentive
pay from computation of compensation, elimination of
holiday hours from calculation of hours worked for
purposes of overtime)' and, restated matters upon which
the Respondent (and the Union) had theretofore taken
adament positions (subcontracting, performance of unit
work by supervisors, union security and checkoff,
mandatory arbitration).
General Counsel contends that Respondent bargained
to impasse on the foregoing matters by presenting its
September 28, 1967, proposal as its "final offer."
Respondent, on the other hand, contends that the draft in
question was merely a revised proposal incorporating
changes theretofore agreed upon, stating additional
matters which the Company wished discussed and
restating issues which to that point had eluded agreement
by the parties.
Riffe testified that at the start of the meeting on
September 28, after the mediator asked whether the
parties had changed any of their theretofore stated
positions, Respondent presented two documents - a
proposed contract and a proposed wage clause for
inclusion in that contract. It was Riffe's testimony that at
the time Fahy presented these documents he stated that
this was Respondent's final proposal and that Riffe should
note the changes made therein which had been underlined
'The Company's change of position on these matters over a year after
the strike had begun , standing alone , would not evidence a failure to
bargain in good faith . Caroline Farms Division of Textron , Inc. v.
N L.R.B.. 401 F.2d 205 , 211 (C A. 4).
INDIANA METAL PRODUCTS
for easier discernment. The union negotiator testified that
after a brief discussion of the underlined added material
he requested a caucus to evaluate the new proposal. This
private meeting lasted approximately 45 minutes.
Following this caucus Riffe claimed to have told the
company representatives that changes had been made
which the Union had never agreed to and that the prior
proposal was more acceptable to the Union than the new
draft. Riffe testified that there was discussion of many of
the items in the new draft including the Recognition and
Coverage article, Management Functions Reserved,
Representation and Activities, Rules and Regulations,
Arbitration, Hours of Work, Holidays, Wages, Bulletin
Boards, and Leaves of Absence. On almost every issue,
Riffe claimed the Company's answer was that the
September 28 proposal was their final offer and that the
conditions outlined therein were the way things were to
be. Riffe recalled that the meeting concluded with his
request that Fahy consider making changes in the new
proposal to which Fahy replied that he would furnish his
answer in writing. Riffe informed Fahy that this answer
was needed before a membership meeting to take place
the following Tuesday, October 3, 1967, at which the
proposal would be put to a vote.
Dale Bryant testified as to his recollection of the events
of September 28.9 Bryant recalled that the Company
presented "what they said was a revised proposal" and
asked that the Union look it over. Riffe then called for a
recess and the union representatives retired to a different
room. After approximately 45 minutes Riffe and Bryant
returned, at which time Riffe stated that the new proposal
had done nothing to help settle the negotiations. It was at
this point, Bryant testified, that "[T]he Company
indicated that this was their final proposal to us." Bryant
recalled that after some discussion of matters in the new
proposal the mediator suggested that the parties meet in
separate rooms and that he would serve as the
intermediary between them in negotiations. It was by this
means that certain matters, including recall of strikers,
were discussed. Finally, Bryant recalled, the Company
agreed to review its position on areas of the contract
raised by the Union and to supply an answer to the Union
by the beginning of the following week.
The version of the events of that afternoon offered by
Fahy and Pemberton vary both in detail and in total effect
from that of General Counsel's witnesses. It was their
testimony that after they arrived at the mediator's office
at 2 p.m., the scheduled time of the meeting, they were
left waiting for approximately 30 minutes before the
mediator entered the conference room. At that time Fahy
presented the revised contract proposal pointing out that
he had underlined for easier identification the words that
were different or added to the previous draft. After Riffe
had quickly examined the proposal he suggested a caucus
and retired with Bryant and the mediator to another
room, returning after about one half hour to ask questions
about the proposal. The discussion which followed was in
the nature of clarification by the Company of matters in
the proposed contract concerning which the Union raised
questions. Thereafter, the union representatives and
mediator again retired from the room and after some time
the mediator returned to tell Fahy and Pemberton that the
private meeting would be going on for some time.
'At the time of the 1967 negotiations Bryant was local union president
and on strike against the Company. When Bryant testified herein he was
employed by Respondent as a working foreman and was no longer a union
member
615
Thereupon Fahy and Pemberton, with the mediator's
knowledge, left the building for coffee and other matters
and were gone for at least 40 minutes. Some time after
they returned to the Mediation Service offices the
mediator came back to the conference room alone and
stated that the hard core issues remained unsolved and
there was the additional issue of the Union' s insistence
that all strikers be returned to work. Earlier in the
meeting Riffe had stated that the return of the strikers
was an essential thing to him. The mediator stated that he
and Riffe had discussed possible changes in the Company
proposal, that there was to be a union meeting in a few
days, and Riffe planned to submit the Company's
September 28 proposal to the membership for ratification!'
Fahy agreed to review the contract proposal and discuss
the matter with company officials. The mediator then
brought Riffe and Bryant back to a joint session , at which
time Riffe advised that he planned to submit the proposal,
including the Company's position on the two strikers
discharged for picket line misconduct, to the membership
with his recommendation that the proposal be rejected.
The meeting ended on this note.
On September 30, 1967, Fahy wrote to Riffe stating
inter alia:
The management of Indiana Metal have considered
your suggested changes in the company's final offer. In
view of the concessions contained in that final offer, the
company does not agree to make any further changes.
The proposal presented at our September 28 meeting,
therefore, stands as written and represents the
-company's final offer.
Following the Union's meeting, Riffe wrote to Fahy as
follows
This letter will serve to notify you that your "final
offer" as outlined in your letter dated 9-30-1967 is
completely unacceptable as a basis for settlement of our
dispute and further that I have notified the Federal
Mediation and Conciliation Service accordingly.
The Union made no request for further bargaining and
filed the change herein on November 13, 1967.
3. Conclusions and findings
I am presented with irreconcilable characterizations of
Respondent's September 28 proposal. If accepted, Riffe's
version, as supported in part by Bryant, establishes that
the document was proffered as a final offer barring
further meaningful negotiations. Were I to credit this
version of the September 28 meeting I must find that
Respondent unlawfully bargained to impasse on a
proposal incorporating nonmandatory subjects of
bargaining , a proposal which represented a withdrawal
from prior commitments and which reiterated adherence
to adamant positions on mandatory subjects of
bargaining . On the other hand, if I credit Respondent's
account of the September 28 meeting the revised proposal
was put forth only to serve as the basis for future
bargaining . Under the Company's version of the
September 28 meeting, it was the Union's decision to
"During cross-examination , Fahy was reminded that in a statement
furnished to the Regional Office during the administrative investigation of
the underlying charge he had attributed to the mediator the phrase "final
offer" at the time he relayed the Union 's intention to submit the revised
proposal to its membership . Fahy testified that the statement he gave to
the Regional Office represented his best recollection as of that date, but
that as of the present time he had no independent recollection of such a
statement by the mediator
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
submit the revised proposal to its membership which
created the condition of impasse barring bargaining on the
contents of the draft
In the final analysis this conflict can be resolved only
by crediting testimony offered by the proponents of one
version while rejecting that of the other side General
Counsel's chief witness was Riffe. If his testimony is
credited, the revised proposal was from the moment of
presentation Respondent's final offer and bargaining
ended at that point. However, based on my observation of
Riffe during his lengthy appearance in this proceeding, I
did not find him a credible witness. Apart from his
unconvincing demeanor Riffe possessed a shifting ability
to recall events. Riffe was able to recall conversations on
September 28, 1967, which would lead to a finding of
violation but hazy on happenings during July and August,
1968, a short time before the hearing herein and a period
of bargaining when progress was made toward agreement.
Thus, I discredit Riffe's testimony about the events of
September 28, 1967 "
Bryant was a credible witness. Employed by
Respondent as a supervisor at the time he testified herein,
Bryant had much to lose and nothing to gain by giving
evidence adverse to his employer's interests. This lends
substantial credence to his testimony. Bryant only
partially supported Riffe's version of the Company's
actions. Bryant did not recall Fahy's presenting the
revised proposal as a "final offer." Rather, he testified
that Fahy handed out copies of the document stating
merely that this was a revised proposal and asking that
the union representative examine the draft. This testimony
conforms to that of Fahy. Fahy and Pemberton both
impressed me as credible witnesses who truthfully testified
to the best of their recollection. Fahy flatly denied using
the term "final offer" in connection with the revised draft
prior to his letter of September 30. I credit his disclaimer.
Under General Counsel's theory of the case the
Respondent was determined throughout the negotiations
to frustrate agreement. However, the credited testimony
establishes that in the 2 years preceding September 28,
1967, Respondent's conduct had not exceeded legal
bounds. While it adhered to its position on many issues,
Respondent's adamancy was matched by that of Riffe. On
September 28, 1967, Respondent was bargaining from a
position of greater strength than it had enjoyed during the
lengthy period of negotiations in 1965 and 1966. The
Union had employed its maximum effort of persuasion,
the strike, and had been clearly unsuccessful in that effort.
While recertified by virtue of a count of the challenged
ballots, the Union's numerical strength was clearly
diminished, as evidenced by the small number of strikers
who sought reinstatement in January 1968 and thereafter.'2
It strains credulity to accept General Counsel's
argument that the Company, so richly situated, would in
effect checkmate itself by presenting the September 28
draft as a "final offer." Apart from the credence which I
afford to Fahy, as corroborated by Pemberton, General
Counsel's theory of Respondent's conduct on September
28 is totally inconsistent with its behavior during the
negotiations to that point.
"In evaluating Riffe ' s testimony I am not unmindful that when it
withdrew from the settlement agreement of May 6, 1968, and supported
General Counsel 's opposition to the settlement the Union 's brief presented
a version of the events of May 6 which had to come from Riffe On the
basis of the record and my own knowledge of the events, those statements
must be deemed a willfull misstatement of the facts
"Five strikers out of twenty five offered reinstatement returned to
Respondent 's employ
Two facts remain which would support General
Counsel's theory of the case rather than that of
Respondent's. The first is Bryant's testimony that at some
point in the meeting on September 28 the Company
referred to the revised proposal as a "final offer." In
evaluating this testimony I note that on September 28
Bryant spent more time in private meetings with Riffe and
the mediator than in direct confrontation with
Respondent's negotiators. I have heretofore determined
that it was Riffe's decision to submit the contract to the
Union's membership which ended bargaining. It was the
mediator who first informed Respondent's negotiators of
Riffe's decision to make this move. Therefore, Riffe must
have first enunciated his planned course of action during a
private session with Bryant and the mediator General
Counsel's cross-examination of Fahy brought forth the
suggestion that the term "final offer" was first used by the
mediator. Under these circumstances it is not
unreasonable to conclude that Bryant, a credible witness
but inexperienced in bargaining, was confused as to the
source of the phrase and that it was first used in the
Union's private caucus rather than in session with the
Company. Second, there is the language contained in
Fahy's September 30 letter to Riffe set forth above. At
three points in one paragraph Fahy refers to the "final
offer." When questioned as to why that letter was replete
with the expression "final offer" Fahy answered
we were asked to consider any changes before [the
September 28 proposal] was submitted to a vote of the
membership, and when, at least I think when you
submit a proposal that the Union says they are going to
submit a vote of the membership that it is a final
proposal. You don't submit something to the
membership to be negotiated.
As noted, based on my observation of Fahy, I found him
to be a credible witness. Moreover, under the
circumstances found I conclude that his explanation of the
September 30 letter is a reasonable one. The Union by its
action had established the September 28 proposal as a
final one. I find nothing unlawful in the Company's
behavior Rather Respondent's conduct was consistent
with the circumstances which Riffe had created.
All things considered, based upon the credited
testimony which establishes that the Company put
forward its revised proposal on September 28 as the basis
for further bargaining and not as a final offer, I find that
General Counsel has failed to establish that the Company
insisted to impasse on an unlawful proposal ' 3
"On November 2, 1967, over Pemberton ' s signature, Respondent advised
the Union and its employees that in view of the impasse in negotiations,
effective January 1, 1968, the Company was instituting three changes in
conditions of employment which had been part of the September 28
proposal. As of the first of the year wages were increased 10 cents per
hour, Good Friday was made a paid holiday in place of the day after
Christmas , and the vacation eligibility date was changed to December 31,
with a proviso that no employees suffer a reduction in vacation pay as a
result of this change The complaint alleges that these revised conditions of
employment constituted a unilateral change of existing rates and vacations
by Respondent "without having bargained with the Union to a good faith
impasse on these subjects " In view of my finding that the impasse which
arose was not occasioned by Respondent's unlawful conduct and followed
good-faith bargaining on the Company' s part , I shall recommend dismissal
of this allegation of the complaint
INDIANA METAL PRODUCTS 617
D. Postsettlement Bargaining
Pursuant to the terms of the settlement agreement
entered into on May 6, 1968, the parties met for
negotiations on May 8, 1968, and on i I occasions
thereafter. The last meeting was on August 2, I968.''
The postsettlement bargaining first disposed of those
matters in the September 28, 1967, proposal which were
alleged in the complaint to have violated the Act. The
items which constitute nonmandatory subjects of
bargaining were discussed first, Riffe raising no objection
to bargaining on the topics. Thereafter all of the matters
specified in General Counsel's March 15, 1968, opposition
to the Respondent's Motion for a More Definite
Statement were taken up by the parties.
After the 12 bargaining sessions the matters still to be
resolved were Management Functions Reserved, union
security, Arbitration, and Wages.
On the issue of checkoff of dues, the Company first
suggested that a means be devised by which the Union
could collect dues in the plant. After this was rejected the
Company offered to set aside I hour per shift per month
for the collection of' dues on company time with no loss in
pay to the person assigned by the Union to collect the
dues. Following the Union's rejection of this revised
proposal Fahy asked what the Union wanted, at which
point Riffe reinstated the demand for checkoff of dues
pursuant to the Steelworkers standard authorization form."
Countering this the Company proposed dues checkoff
pursuant to an authorization revocable at will by the
employee. After Riffe secured approval from the Union's
legal department of the form of revocable authorization
proposed by the Company, this method of dues collection
was agreed to by the Union. When negotiations broke off
following the August 2 meeting, the method of
distribution of checkoff authorization forms to employees
was still not agreed on. As to union security, the Union
repeated its request for a union shop and then stated
during these postsettlement negotiations that it would
accept any form of union security contained in any
Textron affiliate collective-bargaining agreement. The
Company denied knowledge of provisions contained in
such agreements and Pemberton pointed out that each
individual plant determined its own policy in regard to
union security. The Company continued to resist any form
of union security.
On the issue of arbitration, both the Company and the
Union maintained their adamant positions, Respondent
standing on its offer of permissive arbitration and the
Union holding out for compulsory arbitration. On wages,
the Union suggested a 2-year contract with a 20-cent wage
increase.16 The Company countered with a detailed wage
proposal based upon job classifications and job rates
"Four of the bargaining sessions took place after the Union on July 11,
1968, filed its brief in support of the General Counsel's request for
permission to appeal from the Trial Examiner's rulings.
'Testimony of Riffe.
"While no agreement was reached on the duration of the agreement it
was understood by the parties that consensus on this issue was dependent
on the wage dispute . Similarly, final language on a no-strike clause was
dependent on the outcome of negotiations on the subject of arbitration.
pursuant to which an employee's wages could be raised
above the then existing maxima by means of a company
review of each employee's job performance The Union
adamantly refused to accept any form of merit increase
program." A separate part of the Company's wage
proposal relating to the wages of permanently transferred
employees was agreed to by the parties.
A meeting scheduled for Monday, September 8, 1968,
was never held. The Company claimed that because Fahy
would have had to drive in the early hours of the morning
or leave his home on Sunday, the September 8, 1968,
session was scheduled to commence at I p.m. rather than
the parties' usual time of 10 a.m. Riffe denied that there
was such an understanding and Bryant could not recall
any discussion of a change in scheduling at the August 2
session. I do not deem a resolution of this conflict
necessary. In any event Riffe testified that he appeared in
Rochester at the appointed place at 10 a.m and that after
waiting for 20 or 25 minutes left town and drove to
Kokomo, Indiana, where he immediately wrote to Fahy
asking where the company negotiators had been.
Peculiarly, although the Company's plant is located
adjacent to Rochester, Riffe did not telephone the
Company's office in an effort to locate Respondent's
negotiators before driving the considerable distance to
Kokomo and putting his position in writing.
Other than the conflict concerning the failure to meet
on September 8, 1967, there is no substantial variance in
the testimony concerning the postsettlement bargaining.
The facts above indicate that greater progress was made
toward agreement in the 12 sessions which followed the
settlement than in the almost 3 years of prior bargaining.
The bargaining history in 1965 and 1966 serves as
background only. I find there was no failure by
Respondent to meet its bargaining obligations in August
and September 1967. The Union made no effort to meet
with the Company following the September 28, 1967,
meeting. Respondent's conduct during the postsettlement
negotiations and the progress made further evidence its
good-faith effort to reach agreement. Although it
remained adamant on the hard core issues, the Company's
attitude was matched by that of the Union. I shall
recommend dismissal of the complaint in toto.
CONCLUSIONS OF LAW
1. Indiana Metal Products, a Division of Textron Inc.
is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. United Steelworkers of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. Respondent has not engaged in unfair labor practices
as alleged in the complaint.
[Recommended Order omitted from publication.]
"Respondent ' s proposed merit wage program pursuant to which
increases would be subject to unilateral Company review of employee
performance and subject to arbitration only if the Company agreed to such
adjudication does not evidence a lack of good-faith bargaining Phil Rich
Fan Mfg Co, Inc, 171 NLRB No 87