The Black-Clawson Co.

National Labor Relations Board - Board Decisions

Mar 24, 1953

103 N.L.R.B. 928 (N.L.R.B. 1953)

928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
good standing in our labor organization in order to work for WarrLOCx
CORPORATION.
WE WILL NOT In any like or related manner restrain or coerce employees
of or applicants for employment with WniTLOCS CORPORATION , its successors
or assigns , in the exercise of the right to engage in, or to refrain from en-
gaging in, any or all of the concerted activities guaranteed in Section 7 of the
Act.
DISTRICT 65, DISTRIBUTIVE, PROCESSING AND OFFICE WORKERS OF AMERICA,
Labor Organization.
Dated----------------- By--------- ----------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof , and must not
be altered , defaced, or covered by any other material.
THE BLACK-CLAWSON COMPANY and INTERNATIONAL UNION, UNITED
AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, U. A. W.-C. I. 0., AMALGAMATED LOCAL 176. Case No.
9-CA--399. March 24,1953
Decision and Order
On February 4, 1952, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in any unfair labor practice and
recommending that the complaint be dismissed, as set forth in the copy
of the Intermediate Report attached hereto. Thereafter, the General
Counsel, the Respondent, and the charging Union filed exceptions to
the Intermediate Report, and supporting briefs. The Union's request
for oral argument is hereby denied because the record, including the
exceptions and briefs, adequately presents the issues and the positions
of the parties.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
case , and hereby adopts the findings and conclusions of the Trial
Examiner to the extent, and with the additions and modifications,
indicated below.
The sole issue in this case is whether the Respondent committed an
unfair labor practice when it instituted its companywide retirement
plan. The complaint alleges that the Respondent acted unilaterally
and thereby unlawfully bypassed the charging Union, which was the
recognized majority representative of a certain group of its employees.
In defense, the Respondent contends that the Union never requested
that the Respondent bargain with it, but instead agreed that the plan
103 NLRB No. 95.
THE BLACK-CLAWSON COMPANY 929
should be put in effect. As alternative defenses, it also asserts that it
did bargain with the Union, and that, in any event, the plan was not a
bargaining matter.
We agree with the Trial Examiner's conclusion that this retirement
plan, in fact a form of pension plan, was a proper subject for collective
bargaining under the Act. The Trial Examiner also found that the
Union did not ask the Respondent to bargain about the plan, that it
acquiesced in the Respondent's conduct, and that therefore the basic
allegation of the complaint is not supported. We do not agree.
The Respondent's retirement plan covers the bulk of the employees
in ils four plants situated in different locations. Some of the em-
ployees are not organized, and others are represented by various
unions in a large number of bargaining units. This case is concerned
only with the production and maintenance employees at the Re-
spondent's Black-Clawson Division plant in Hamilton, Ohio, who,
since a Board certification in 1945, have continuously been represented
by the charging Union.
The pertinent facts, set forth in greater detail in the Intermediate
Report, are accurately reported. Briefly, they are as follows :
After the Respondent decided-admittedly without consulting the
Union-to institute the plan, and shortly after the employees and the
union representatives were informed of the decision, union representa-
tives complained to the Respondent's officials that the Union was the
bargaining agent of a group of its employees and that the Respond-
ent should bargain with it about the retirement plan. Later, after
the Respondent arranged a speaking schedule for Roeder, an insur-
ance expert, to explain the plan to all employee groups, the Union, at
a special meeting, voted to boycott the lecture meeting arranged for
the unit it represented, and did so. Between June and October of 1950,
there was no further activity about the Respondent's plan, but dur-
ing this period the Union and the Respondent negotiated a renewal
of their contract. Among the items extensively discussed during nego-
tiations was a union-proposed pension plan, considered and rejected
by the Respondent. Because no agreement could be reached on pen-
sions, and in order to preserve its position in the matter, the Union
agreed to a clause that was embodied in the final contract in Septem-
ber, binding the Respondent to negotiate with it before any pension
plan should become effective.
In November 1950 the Respondent finally adopted and announced
its plan. On February 3, 1951, it sent letters to all employees, saying
that it would communicate with each about signing cards authorizing
their participation in the plan, and a few days later, the chief time-
keeper, authorized by the Respondent's labor relations director, spoke
individually to the employees in the unit represented by the Union,
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and asked each to sign an authorization. On February 9, 1951, a
union representative reported this activity to an international repre-
sentative, who, on the 13th, wrote to the Respondent accusing it of
an unfair labor practice by ". . . arbitrarily bargaining with the
members of our Union individually and without consulting the Union
which is the legal authorized bargaining agent for the employees
involved. We therefore request the Company to discontinue their
activities concerning the above matter immediately. . . " On the
14th, the Respondent met with the Union, which again complained
that the Respondent was not "bargaining fairly" and that "all mat-
ters pertaining to Employer-employee relationships should be.sub-
mitted to the Union for a matter of collective bargaining."
On February 16, the Respondent wrote to the Union that "we do
not believe that this ... plan lies within the area of collective bar-
gaining," and that, anyway, it had discussed it with the Union and
satisfied all legal and contractual obligations. The Union reiterated
its protests by letter on the 19th, and again, on the 27th, the Re-
Gpondent replied that the plan was not subject to collective bargain-
ing, persisting in this position through a final meeting on March 7.
Unlike the Trial Examiner, we view these facts as clear evidence
that the Union desired at all times to negotiate with the Respondent
on the retirement plan, and that it communicated its wishes in this
respect to the Respondent. The Union's complaint to the Respondent,
after first hearing of the proposed plan, that it was the bargaining
agent of the employees in its unit, its refusal to permit the employees
to meet directly with the Respondent' s insurance representative, and
its protest against the later individual solicitation of these employees,
preclude any other conclusion. Indeed, its representatives' state-
ment to the company officials "you should bargain with the
Union . . .," is a literal request for a bargaining conference. It is
true that the Respondent did not conceal its purpose and activities,
that it invited union representatives and unrepresented employees,
on a companywide basis, to a dinner announcement of the plan, that
committeemen of all unions were asked for suggestions , and that the
Union once agreed to have an insurance expert explain the details
of the plan to the employees. Significantly, however, Roeder, who
explained the plan at a dinner meeting and to the employees, as well
as to all other employee groups, was told by the Respondent not to
negotiate, but only to explain objectively. As to the Respondent
having kept the Union advised of its intentions, the courtesy is hardly
tantamount to the discharge of its statutory duty to bargain with
the Union in the face of the latter's continued claim to the right to
bargain on the plan. Moreover, what notice the Respondent did
serve upon the Union was not in recognition of the Union's repre-
sentative status but merely individual distribution of pamphlets to
THE BLACK-CLAWSON COMPANY 931
union committeemen and officials as employees , like all others. At
no time did the Respondent, even superficially, recognize the Union
as a bargaining agent in this matter. Any remaining doubt of the
Respondent's intention to bypass the Union is dispelled by its re-
peated admissions, after the plan was in effect, that in the Respondent's
opinion the Union had no right to bargain on it.
The foregoing facts not only compel the conclusion that the Union
in fact demanded that the Respondent bargain with it, but also belie
the Respondent's assertion that the Union acquiesced in its unilateral
action. The saving clause in the September contract, whereby the
Union explicitly reserved its right to bargain on any pension pro-
posal, is alone sufficient to free it of any imputation of estoppel. The
Respondent, having thus agreed in writing to the Union' s clear reser-
vation of its rights, can hardly claim waiver now.
In conclusion we find that as the Union demanded that the Re-
spondent bargain with it in respect to the retirement plan, and as
the Respondent was under statutory obligation to deal with the
Union, its unilateral action of putting the plan in effect among the
production and maintenance employees at its Hamilton plant, con-
stituted a violation of Section 8 (a) (5) and (1) of the Act.' The
Respondent's alternative and inconsistent defense that it did bargain
with the Union on this subject is clearly without merit.
Having found that the Union did ask the Respondent to bargain
with it, it is not necessary to decide the case on any other basis. We
must nevertheless correct an erroneous statement of Board law con-
tained in the Intermediate Report. Contrary to the Trial Examiner's
opinion, a recognized majority representative which enjoys a current
collective-bargaining agreement is not required to make a new de-
mand for a bargaining conference whenever the employer desires
to make changes in conditions of employment. It is rather the em-
ployer's duty to consult with the representative of the employees
before granting additional benefits to them, or otherwise changing
conditions of employment. As the Board has repeatedly held : "If
the duty to bargain is an operative one, an employer cannot even
accept employee proffers to deal with him on an individual basis,
even though he has not directly solicited such proffers (Medo Photo
Supply Corp. v. N. L. R. B., 321 U. S. 678), much less solicit such
individual agreement 2 "
1Tide Water Association Oil Company , 85 NLRB 1096 . ". . . practical difficulties
encountered by an employer in negotiating about a pension plan with the representative
of a portion of his employees, all of whom are covered by a company -wide pension plan,
do not eliminate his duty to bargain within an appropriate unit."
' Central Metallic Casket Co., 91 NLRB 572.
See also General Motors Corp., 81 NLRB 779, involving a pension plan , where the Board
said : ". . . apart from any question concerning the alleged absence of a demand by the
Union to bargain with respect to group insurance, we find that the Respondent 's unilateral
action in instituting the insurance plan, and thus altering wages and conditions of employ-
ment, without consulting the Union , constituted a refusal to bargain...."
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Remedy
Having found that the Respondent, by acting unilaterally with
respect to its pension plan, has refused to bargain collectively, we
find it necessary, in order to effectuate the policies of the Act, to
require the Respondent to refrain from making any unilateral changes
with respect to its pension and retirement policies which affect any
of the employees in the unit represented by the Union, without prior
consultation with the Union. We shall therefore order it to bargain
collectively with the Union, upon request, with respect to pension and
retirement policies.
Order
Upon the entire record in this case , and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent , The Black-
Clawson Company , Hamilton , Ohio, and its officers, agents, successors,,
and assigns , shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Union,
United Automobile , Aircraft & Agricultural Implement Workers of
America, U. A. W.-C. I. 0., Amalgamated Local 176, with respect to
any pension or retirement program , as the exclusive bargaining rep-
resentative of all employees at its Black-Clawson Division plant in
Hamilton , Ohio, but excluding patternmakers , iron and brass foundry
workers , office employees , foremen , student engineers , superintend-
ent's clerks , and all guards , professional employees, and supervisors
as defined in the Act.
(b) Making any unilateral changes, affecting any employees in the
unit represented by the Union, with respect to any pension or retire-
ment program without prior consultation with the Union.
2. Take the following affirmative action , which the Board finds will
effectuate the policies of the Act :
(a) Upon request , bargain collectively with respect to any pension
or retirement program with the Union as the exclusive representative
of all its employees in the aforesaid appropriate unit.
(b) Post in conspicuous places at its plant in Hamilton, Ohio,
copies of the notice attached hereto marked "Appendix." 3 Copies of
said notice , to be furnished by the Regional Director for the Ninth
Region , shall, after being duly signed by the Respondent , be posted
by it immediately upon receipt thereof and maintained by it for sixty
(60) consecutive days thereafter in conspicuous places, including all
8 In the event that this Order is enforced by a United States Court of Appeals, there
shall be substituted for the words "Pursuant to a Decision and Order," the words, "Pur-
suant to a Decree of the United States Court of Appeals , Enforcing an Order."
THE BLACK-CLAWSON COMPANY 933
places where notices to employees are customarily posted. Reason-
able 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 the Ninth Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
Appendix
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
Relations Act, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with INTERNATIONAL
UNION, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLE-
MENT WORKERS OF AMERICA, U. A. W.-C. I. 0., AMALGAMATED
LOCAL 176, as the exclusive representative of all the employees in
the bargaining unit described herein with respect to any pension
or retirement program.
WE WILL NOT make any unilateral changes in any pension or re-
tirement program affecting employees in the bargaining unit
without prior consultation with the union.
The bargaining unit is : All employees at our Black-Clawson
Division plant in Hamilton, Ohio, excluding patternmakers, iron
and brass foundry workers, office employees, foremen, student
engineers, superintendent's clerks, and all guards, professional
employees, and supervisors as defined in the Act.
THE BLACK-CLAWSON COMPANY,
Employer.
Dated------------------- By----------------------------------
(Representative ) ( Title)
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
Upon a charge duly filed by International Union, United Automobile, Aircraft
& Agricultural Implement Workers of America, U. A. W.-C. I. 0., Amalgamated
Local 176, herein called the Union, the General Counsel of the National Labor
Relations Board,' by the Regional Director for the Ninth Region (Cincinnati,
1 The General Counsel and his representatives at the hearing are herein referred to as
the General Counsel ; the National Labor Relations Board as the Board.
257965-54-vol. 103-60
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ohio), issued a complaint dated August 23, 1951, against The Black-Clawson
Company, herein called the Respondent or the Company , alleging that the Re-
spondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National
Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of
the complaint with a copy of the charge and notice of hearing were duly served
upon the Respondent and the Union.
In substance the complaint alleges that on and after about November 15, 1950,
the Respondent by unilaterally adopting a plan entitled "The Black-Clawson
Company Employee Profit-Sharing Retirement Plan," herein called the Plan,
by circularizing the Plan among its employees, by meeting and conducting dis-
cussions with individual employees concerning the same, and by failing and
refusing to bargain collectively with the Union, which was the exclusive repre-
sentative of all the Respondent's employees in a unit appropriate for the pur-
poses of collective bargaining, in respect to the Plan, the Respondent thereby
engaged and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) and (5) of the Act.
On August 31, 1951, the Respondent filed its answer wherein it admits certain
allegations of the complaint but denies the commission of any unfair labor
practices. Affirmatively, the Respondent avers that all acts done by it in con-
nection with the adoption and announcement of the Plan, in circularizing its
employees and meeting and conducting discussions with them, and in accepting
applications for participation in the Plan as well as checking off employee con-
tributions, were done in reliance of oral approval and acquiescence by the rep-
resentatives of the Union, who had full knowledge of the Respondent's activities
concerning the Plan. Accordingly, the Respondent avers that the Union has
not acted in good faith and is estopped to object to its conduct.
On September 10, 1951, counsel for the Respondent filed with the Regional
Director an application for leave to take the depositions of certain representa-
tives of the Union, prior to the hearing, for the purpose of discovering the
nature of their testimony in order to adequately prepare their defense, and
to obtain this evidence in the event the representatives should become unavail-
able to testify at the hearing. On September 14, 1951, the Regional Director
entered an order denying the application.
Pursuant to notice, a hearing was held at Hamilton, Ohio, on October 15, 16,
17, and 18, 1951, and at Cincinnati, Ohio, on November 2, before the undersigned
Trial Examiner duly designated by the Chief Trial Examiner. The General
Counsel, the Respondent, and the Union were represented by counsel. At the
outset of the hearing counsel for the Respondent renewed his motion to take
preliminary depositions, which motion was denied by the undersigned. All
parties participated in the hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence per-
tinent to the issues involved. At the conclusion of the case the General Counsel
and counsel for the Respondent present oral argument to the undersigned. The
parties were advised of their right to file briefs in the matter and thereafter
the General Counsel and the Respondent submitted briefs, which have been
duly considered by the undersigned.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The parties stipulated that the Company, an Ohio corporation, is engaged in
the manufacture and sale of papermaking machinery and operates three plants
THE BLACK-CLAWSON COMPANY 935
or divisions, namely, Shartle Bros. Machine Division , located at Middletown,
Ohio; Black-Clawson Division at Hamilton , Ohio; and Dilts Machine Works
Division at Fulton, New York. The Company is also the sole owner of the
Keuthan Foundry Company, an Ohio corporation. In the course of its opera-
tions the Company annually purchases materials , supplies , and equipment valued
in excess of $100,000 to be transported and delivered to its various plants from
places outside the States of Ohio and New York. The Company annually ships
finished products from its plants valued in excess of $100,000 to places outside
the States of Ohio and New York. The Company admits that it is engaged
in commerce within the meaning of the Act, and the undersigned so finds.
II. THE LABOR ORGANIZATION INVOLVED
International Union , United Automobile , Aircraft & Agricultural Implement
Workers of America , U. A. W.-C. I. 0., Amalgamated Local 176, is a labor organi-
zation admitting to membership employees of the Company.
III. THE UNFAIR LABOR PRA(NICES
A. The appropriate unit and the Union's majority ; appropriate units covering
other employees of the Company
The General Counsel and counsel for the Company entered into a written
stipulation , which was received in evidence at the hearing without objection by
the counsel for the Union , wherein the parties agreed that :
All employees at the Respondent 's Black-Clawson Division plant in Hamilton,
Ohio, but excluding patternmakers, iron and brass foundry workers, office
employees , foremen, student engineers , superintendent 's clerks, and all
guards, professional employees and supervisors as defined in the Act. .. .
constitute a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
The parties also agreed that at all times since about October 9, 1945, the
Union has been the exclusive bargaining representative for all the employees
in the above unit,' and has had continuous contracts with the Company since
that date. On August 18, 1948, the Union was authorized to make an agreement
with the Company , covering the employees in the above unit, providing for
membership therein as a condition of employment in conformity with the
provisions of Section 8 (a) (3) of the Act' The undersigned so finds.
In respect to employees not included in the foregoing unit, the parties stipu-
lated , and the undersigned finds, that since November 15, 1950:
International Molders & Foundry Workers Union of North America, AFL,
has represented a unit of foundry employees at the Black -Clawson plant.
Pattern Makers Association has represented a unit of patternmakers at the
same plant and a similar unit of employees at Shartle Bros . Division plant at
Middletown, Ohio.
International Association of Machinists has represented a unit of production
and maintenance employees at Shartle Bros. plant.
' On this date the Board , in Case No 9-R-1788 , certified the Union as the representative
for all production and maintenance employees at the Hamilton plant , excluding iron and
brass foundry workers covered by agreement with another union, office workers , production
supervisors , foremen and supervisory employees with authority to hire , promote, discharge,
discipline , or otherwise effect changes in the status of employees , or effectively recommend
such action.
8 Case No. 9-UA-857.
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Molders & Foundry Workers Union of North America, AFL,
has represented a unit of production and maintenance employees at the Keuthan
Foundry Company.
No labor organization has represented the employees at the Dilts Machine
Works Division at Fulton, New York.
B. Events preceding the alleged refusal to bargain
1. The inception and announcement of the Plan
George H. Tompkins, plant manager of the Hamilton Division since February
1946, related that the Company for several years had been considering the
installation of some type of retirement plan for its employees. In 1948,
apparently about May, the manager of the Dilts plant attended a conference of
management personnel for various companies during which retirement plans
were discussed, the substance of which he reported to his supervisors. Upon
receiving this information, H. D. Martindale, president of the Company, called
a meeting of top company officials at Middletown about June 15 and 16, 1948.
At this meeting the officials discussed the retirement problem with representa-
tives of two insurance companies and with Joseph A. Roeder, a specialist in the
field of profit-sharing plans. Following this meeting, Robert A. Klock, director
of industrial labor relations from about April 1946 to December 15, 1950, engaged
in extended research and study of all types of plans and in early 1950 submitted
to Martindale a tentative draft of a profit-sharing plan. On May 11, 1950, the
board of directors authorized Martindale to proceed with the Plan and to have
Roeder "visit each division and explain the Plan to members of the union
committees."
On May 19, the Company held an "introductory meeting," in the form of a
dinner party at a local hotel, in order that Roeder might have an opportunity to
outline the "story of profit sharing" to representatives of the employees in the
3 plants at Hamilton. The affair was arranged by Klock and attending the
same were members of all union committees, including those of the Union,
certain management officials, and representatives of unorganized groups, such
as engineers and supervisors, in all about 48 persons. Roeder, according to
Tompkins, discussed the theory and application of profit-sharing retirement
plans and related experiences of other companies with such plans. While he
did not read the Plan to the representatives, Roeder did refer to it and at the
conclusion of his talk invited questions and discussions thereon. The meeting
terminated with Klock requesting that each union committee appoint a subcom-
mittee of 2 persons and that further meetings would be held to discuss the
details of the Plan.
2. The status of bargaining relations between the Company and the Union
As appears above the Company and the Union have had continuous agree-
ments since 1945. Henry Gray, an officer of the Union and a member of its
bargaining committee, stated that about May 13 the Union served a 60-day writ-
ten notice upon the Company to modify certain provisions of the existing agree-
ment including wage terms and in addition requesting new provisions pertaining
to social security and workers' security program. Similarly, the Company, by
letter dated May 12, notified the Union of its desire to effectuate changes in
stated articles in the agreement. About June 14 the Union submitted its pro-
posed changes and subsequently the Company gave the Union its proposed
amendments to the contract. Thereafter the parties entered into negotiations
THE BLACK-CLAWSON COMPANY 937
extending over a period of approximately several months and as a result thereof,
on September 7, executed an agreement effective as of July 15.
3. The Union's information concerning the Plan
Gray testified he first learned of the Plan about May 17, when Klock advised
him that he had been working on a profit-sharing plan for a number of years,
which he had been trying "to sell" to the Company, and that a banquet was to
he held within a few days so that Roeder would have an opportunity to speak
on this subject to the union committees of the various bargaining units of the
Company. Charles Cope, then chairman of the negotiating committee of the
Union, and Walter Schenk, a member thereof, were also present at least during
part of the above discussion. Gray said that the entire bargaining committee,
consisting of five members, attended the dinner meeting on May 19. On this
occasion Roeder, who was introduced to the group by Klock, explained the profit-
sharing retirement plan and how it had proven to be beneficial to participants in
plants where he had been instrumental in establishing such methods. He also
compared this type of retirement plan to so-called pension plans and expressed
the opinion that the former was more desirable or better than the latter.
4. The events occurring between May 26 and November 15
On May 26, Tompkins and Klock held a meeting at the plant with the sub-
committees of the various unions. Cope and Jackson Williams were present on
behalf of the Union. Prior to the meeting Klock distributed copies of the pro-
posed Plan to all members of these committees. Klock testified he informed the
representatives present that the Plan as distributed was merely in tentative
form and asked for suggestions concerning changes therein, which, if reasonable,
would be adopted. Certain changes were suggested by representatives, other
than those of the Union. Cope admitted that he received a copy of the Plan
and, at Klock's request, attended the meeting of the union subcommittees. Cope
said that Klock spoke on different phases of the Plan, which he described as
being in tentative form and requiring many changes. Klock did not ask for any
"Commitments or agreements" on the Plan and none was made or offered by
Cope or Williams.
In the latter part of May or early June, Klock, after obtaining the opinion of
counsel on the proposed changes in the Plan, held a second meeting with repre-
sentatives of the unions which he described as "just a general discussion .. .
carrying on from the first meeting." Cope and LeRoy Ogg were present on be-
half of the Union. Ogg said that Klock attempted to explain the Plan as
,changed and declared that additional unspecified changes would have to be
made therein. Klock also advised the representatives that Roeder undoubtedly
would be called back to further explain the Plan to the employees as he was
thoroughly familiar with the details thereof.
On June 7, the union committee, pursuant to the terms of its contract, held
its periodic grievance meeting with Tompkins and Klock. Gray stated that the
Plan was not discussed during the meeting but after the conclusion thereof
Klock announced that a "speaking schedule" had been arranged whereby Roeder
would address various groups of employees at the plant. Gray pointed out that
the committee was the bargaining representative for the employees within the
particular unit and that the Company "should bargain with us on the plan and
not resort to the procedure" of the prearranged schedule for Roeder to address
employees in their unit. While Klock and Gray discussed the matter "back and
forth," Klock made no response to his statement in respect to bargaining with
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the committee. Cope, Ogg, and Schenk testified, in substance, that Klock said
Roeder was coming to the plant and that Gray made a statement that the Plan
was a subject for collective bargaining. Williams could not recall the discussions
that took place during or after the meeting.
Tompkins and Klock denied that the Plan was discussed with the committee
during or after the meeting, or that any request to bargain upon the subject of
the Plan was made. They also denied that any mention was made of Roeder's
speaking schedule. In this respect, Klock stated he did not even contact Roeder
until about June 12.
Subsequent to the above meeting the Company posted on its bulletin boards a
schedule of meetings to be conducted by Roeder with the various groups or units
on June 14, 15, and 16. Tompkins could not recall the precise date the notice was
posted other than it was sometime prior to June 14. Gray stated it was posted
on June 8, and that the following day the Union posted a notice on its bulletin
board at the plant announcing that the Union was holding a special meeting that
afternoon for the purpose of discussing its position on the Plan. While Gray's
testimony fixed the date of the union notice and meeting as of June 9, the notice
itself bears the date of "Wednesday, June 14, 1950."
Klock said that prior to June 12, he contacted the chairman of each union
committee and asked if it was agreeable to have Roeder come to the plant
"because we were more or less stymied on some of the questions in this program."
Klock, about June 12, informed Cope that all the chairmen had agreed to have
Roeder return and inquired if it was satisfactory to him, and he replied, "Well,
that sounds OK to me." Cope admitted that Klock discussed the subject of
Roeder's return with him and that he told Klock, "as far as I knew that it would
be all right, that I couldn't tell him anything about it but I would have to see the
international representative." Cope at once attempted to reach two of the inter-
national representatives but was unsuccessful, since they were out of town, and
before he could make any further efforts to contact these individuals, arrange-
ments had been made for Roeder's reappearance at the plant.
On the same date the union notice was posted, Klock stated that Cope advised
him he had resigned as chairman of the union committee since members of the
committee were not in accord with Cope's position in agreeing to have Roeder
speak to the employees in this unit. Cope admitted he told Klock he had resigned
at noon of June 14. He further said that Klock showed him a copy of the notice
concerning the union meeting and remarked, "Well as far as that goes the UAW
is out." Apparently, Cope made no reply to this remark. About the same time
Klock gave Gray a letter stating that meetings would be held with Roeder but
attendance was not compulsory.
Gray testified that the Union held the scheduled meeting on the afternoon of
June 14, at which time he explained the purpose of Roeder's visit to the plant and
the fact that the committee felt that the Plan "was an issue for collective bar-
gaining." The membership then voted unanimously to refrain from attending
Roeder's meeting.
Roeder addressed the various groups as outlined in the schedule, but the em-
ployees in the unit represented by the Union did not appear at the meeting
arranged for them.
5. The contract negotiations
As appears above, the parties exchanged proposed amendments to the current
contract and negotiations commenced around June 15, which extended over a
period of several months. During this interval Gray was chairman of the union
committee conducting the negotiations. Bernard Wilberding and William Beck-
THE BLACK-CLAWSON COMPANY 939
ham, international representatives , were also present with the union committee.
Gray stated that during the course of the negotiations the Union , about the middle
of July, presented a pension program described as "The Black -Clawson Company-
UAW-CIO Retirement Income Plan ." The Union 's plan was discussed by the
parties and the Company 's representatives explained that since a large number
of employees in the unit had long service with the Company the cost of a funded
pension plan would be very expensive and as the Company 's business operations
fluctuated financially it could not agree to such a program at that time. Gray
said the parties finally agreed to include a provision in the contract regarding
negotiations on a pension plan in the future.` Gray further stated that the Com-
pany agreed to give the Union a statement in writing to the effect that until such
time as the parties negotiated a retirement plan it would continue to maintain
its present policy of retiring employees over 65, who could not perform their
regular job duties, on $100 per month including social-security payments. How-
ever , the parties did not agree to include a provision to this effect in the contract,
nor did the Company submit a statement at that time . Nevertheless , the member-
ship of the Union ratified the contract on September 7. This agreement was
effective from July 15, 1950, to July 15, 1951, and thereafter from year to year,
subject to termination or modification by either party on 60-day written notice
prior to the expiration date or subsequent yearly period. Admittedly , the repre-
sentatives did not mention or discuss the Plan of the Company in the course of
these negotiations and Wilberding conceded that the Union did not request the
Company to submit any counterproposals to its pension plan.
Tompkins , one of the Company's representatives during the above negotiations,
stated that the Union 's proposed pension plan was discussed "at considerable
length ," during at least one meeting attended by union and company experts in
this field . The Company, as also stated by Gray, took the position that the high
fixed cost of the pension plan , caused by the high average age of its employees,
plus the fact that its operations fluctuated widely, rendered this program prohibi-
tive in periods of uncertain business conditions . Tompkins believed the union
committee reached the same conclusion and in any event the subject was not
brought up for discusson during the negotiations . Tompkins conceded that the
Company did not offer its Plan as a counterproposal for the reason that the Union
had refused to participate therein and the company committee was of "the opinion
that they were not interested" in this program . In the course of these discus-
sions, the Company expressed its willingness "to consider giving " retirement
benefits to employees over 65, with 25 years service and who could not perform
their regular jobs, consisting of payment to them of the difference between $100
and social-security payments . However , this was a companywide problem, to
be considered with other problems of like character , so it was not feasible to
incorporate such a provision in an agreement with the Union at that time. Since
the union committee expressed its desire to negotiate upon a pension program in
the future , the parties at the Union's request included a clause in the contract
specifically reserving this right to the Union.
6. The Union's change of position in respect to meeting with Roeder
The record fails to disclose any discussions or meetings between the Company
and Union concerning the Plan from the date of the execution of the above agree-
ment, September 7, to the latter part of October or early November. In the
A The contract provided that : "In the event a pension program is to be established, then
this matter shall be subject to negotiations between the company and the union before
any such plan shall become effective."
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interim the Company apparently pursued necessary steps toward establishing the
Plan at its various plants.
In October Gray stated that the union committee held its regular grievance
meeting with Tompkins and Klock, and at the end of the meeting Klock advised
those present that he was leaving the Company and he personally felt that the
Union was "missing the boat" insofar as the Plan was concerned. Gray then
reminded Klock that the Company had failed to submit its written statement of
policy on retirement but Klock said this statement was conditioned upon the
adoption of the Plan. The parties then discussed the merits of the Plan and the
Union's pension program in the course of which Klock admitted he was still
"vague" on certain provisions of the former and suggested that Roeder explain
it to the employees in the particular unit, provided the Union was willing to
attend the same. The union committee, after considering the matter in recess,
informed Klock that, without making any commitment about the Plan, they had
no objecton to Roeder addressing the employees in their group provided he spoke
"objectively" and confined his remarks to the Plan itself. Klock said he believed
the meeting could be arranged within a week or 10 days.
Klock testified substantially the same as Gray, but stated that he informed
the union committee that a wage freeze was imminent and that, "we have got to
move fast on this deal." Klock said he also gave each of the committee members
a copy of the Plan, as revised October 28, and made arrangements for Roeder to
speak to the group on November 6.
On the afternoon of the above date Roeder, according to Gray, spoke to the
union committee and employees at the plant wherein he outlined the Plan and
asked for questions and discussions at the close of his talk. Gray further stated
that after the meeting Roeder asked, "How did I do?" and he replied, "fair."
Gray asserted that the union committee made no agreement or commitments in
respect to the Plan, nor did he discuss this matter with any representatives of
the Company. Cope, Ogg, Schenk, and Williams testified to the same general
effect.
Roeder testified that before his talk to this group Klock advised him to refrain
from making any critical remarks "about pensions in general," and to make no
reference to unions. Roeder agreed to this suggestion. Following his speech
Roeder asked Gray, "How did I do?" and he answered, "Quite all right." Gray
then said, "Give me the ballots ; I'll get them signed," to which Roeder replied,
"all right," and walked away. Roeder immediately reported the foregoing con-
versation to Klock. Roeder expressly stated that he was not authorized to en-
gage in any collective-bargaining negotiations with any unions in respect to the
Plan, but directed only to explain the same to the various groups.
Klock and L. R. Brice, who succeeded Klock as director of labor relations,
stated that after the meeting Gray remarked that "he still didn't know whether
be wanted any part of the Plan, but it was up to the individuals in the shops
to decide for themselves what they wanted." Each of these individuals also said
that Roeder reported his conversation with Gray, as set forth above, to Klock.
The latter admitted he did not know what Gray was referring to when he used
the word "ballots."' Klock advised Martindale that the Union "was now in-
5 The record reveals no explanation in regard to the use of the term "ballots." Gray said
he talked to Roeder about politics after the speech but there is nothing to indicate that
they discussed any type of election, political or otherwise. Granting that the subject of
elections was discussed it is inconceivable that this would prompt Gray to make such an
assertion . Apart from Gray's denial that he made any statement concerning his signing
up in the Plan , but that the individuals could do so if they wished , it seems unlikely that
Gray would refer to any plan authorization cards as "ballots." It may be that Roeder
misunderstood Gray, but in any event the undersigned does not attach any importance as
to whether Gray did or did not utter this specific remark.
THE BLACK-CLAWSON COMPANY 941
terested in profit sharing" and that "we had jumped the big hurdle" in the instal-
lation of the Plan.
0. The alleged refusal to bargain on and after November 15
On November 22, the board of directors passed a resolution adopting the
Plan. About the same time a summary of the Plan in booklet form was dis-
tributed among the members of the union committees including some members
of the union committee. The booklet contained a letter addressed to the em-
ployees from Martindale, dated November 15, in which he announced the adop-
tion of the Plan, contingent upon 70 percent of the employees agreeing to become
members by December 31, and the fact that participation therein was on a
voluntary basis.
On December 14, a farewell dinner was held at Middletown for Klock who was
leaving the employ of the Company. About 150 persons attended the affair
including members of the union committees, supervisory staff, and management
officials. Williams was the only member of the union committee who attended
the dinner. He could not remember whether the members were invited to the
dinner but he recalled a paper being circulated at the plant giving directions
to the place where it was being held. Klock made a speech at the dinner wherein
he stated he was gratified that the Plan had been adopted and urged the em-
ployees to sign cards for participation in the Plan before "any freeze" prevented
its installation.
About December 28, the Plan was approved by the United States Treasury
Department.
On January 3, 1951, Gray addressed a letter to Brice requesting that the Com-
pany negotiate with the Union in respect to granting a cost-of-living wage in-
crease, although he conceded that the existing agreement was not subject to
reopening at that time. The following day the Company acknowledged the letter
and agreed to discuss the matter with the Union. On January 8, the Union asked
for a general wage increase of 10 cents per hour and requested that a meeting
be held on January 9. The parties commenced negotiations on that day, and
on January 15 a supplemental agreement was signed granting a cost-of-living
increase . During the negotiations neither of the parties made any reference to
the Plan.
On January 8, the Company posted notices on its bulletin boards announcing
approval of the Plan by the Treasury Department. The notices further stated
that the Company was extending the final date on which employees might sign
authorizations to participate in the Plan, and urged the employees who had not
yet signed to immediately contact their foreman or the personnel office. Gray
said he saw the notice but did not discuss it with the union committee.
1. The solicitation of union members to join the Plan
Tompkins said that on February 3, 1951, the Company mailed letters to each
of its employees suggesting that they participate in the Plan and further stating
that while a large number of workers had signed cards to participate therein
others had not and these individuals would be personally contacted within the
next few days. A question and answer pamphlet on the Plan was enclosed with
each of the above letters. Gray, Schenk, Williams, and Amos Hampton, a mem-
ber of the union committee, admitted that they received the above letter
and enclosure about February 3. Gray said he considered this action as the
initial "attempt to solicit individual participation" in the Plan. Williams stated
that he did not discuss either the receipt of the above document or the contents
hereof with members of the union committee. The evidence does not reveal any
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting of the union committee for the purpose of discussing these communica-
tions, nor is there any testimony that either the committee or any of its mem-
bers contacted the Company regarding this matter.
Jesse Caldwell, chief timekeeper for the Company at Hamilton as well as
the Keuthan plant at Middletown, testified that he knew the Company had mailed
the documents to its employees on February 3, 1951, so he volunteered to Brice
to contact employees who had not signed up for the Plan, as mentioned in the
company letter of that date. Caldwell began contacting the employees about
Monday, February 5, and spent approximately the entire week personally inter-
viewing individuals who had not previously signed up for the Plan. About
February 8, Caldwell contacted employees in the unit represented by the Union.
Each such employee was called to his office and asked whether he desired to
participate in the Plan. Caldwell had authorization cards for participation in
the Plan and if the employee stated he wished to join he signed the card ; on
the other hand if the employee refused to join Caldwell made a notation to that
effect on the card, and in some instances he had the employee sign his name
below the notation. Caldwell stated that during this period be signed up approxi-
mately 100 employees in this unit and about 22 employees remained unsigned.
Hampton said that in the early part of February he went to Cald'well's office
to make a phone call and while there Caldwell asked him to sign a card "on
this profit sharing plan ." Although Hampton had received one of the February
letters from the Company, he asked Caldwell to explain the Plan as he was not
familiar with it. Caldwell replied that while he did not know too much about
the Plan, it was necessary to secure a certain percentage of employees before
it became effective, that the required number had already signed but the Com-
pany "didn't want to miss anybody" joining in the program. Hampton thereupon
signed the card.
Charles Herman Wehr, who was elected a member of the union committee on
February 13, 1951, testified he was called to Caldwell's office and asked if he
wished to sign an authorization card. Wehr replied he did not desire to sign
up, whereupon Charles Sortman, superintendent, said, "Don't be so damn bull-
beaded ; sign it. It will help you because you are an older man." Wehr then
signed the card. On September 4, 1951, Wehr voluntarily signed another card
Increasing . his contribution under the Plan from 2 to 5 percent.
Caldwell also asked Ogg and Cope if they desired to participate in the Plan.
Gray said that about February 8 or 9, he inquired as to how long the Company
was extending the time within which to sign up in the Plan. Caldwell replied
that he did not know but stated he would not contact members of the committee
until after the union election, which was to be held on February 13.
On February 9, Gray advised Wilberding that the Company was contacting
individual members of the Union with respect to participating in the Plan. The
following day, or shortly thereafter, the union committee met with Wilberding
at which time the matter was discussed and, according to Wilberding, it was
agreed to notify the Company that "we wished this practice of establishing or
putting this plan in operation discontinued." In accordance with the position
adopted at the meeting, the committee sent the following letter dated February
13 to the Company :
Recently it has been brought to our attention that the Black-Clawson
Company is arbitrarily bargaining with the members of our Union indi-
vidually and without consulting the Union which is the legal authorized
bargaining agent for the employees involved.
We therefore request the Company to discontinue their activities concern-
ing the above matter immediately and we further charge that the Company
THE BLACK-CLAWSON COMPANY 943
is in absolute violation of the agreement existing between the Company and
the Union and also you are definitely in violation of The Labor Management
Relations Act.
In the event the Company desires to continue their activities of unfair
labor practice the Union shall take whatever legal steps are necessary to stop
this practice.
On February 14, representatives of the Company, Brice and L. W. Munger,
assistant plant manager , met with the union committee , Gray, Ogg, Schenk, Cope,
and Wilberding. Wilberding, who acted as spokesman for the Union, testified he
informed the representatives that "the Company was not bargaining fairly" ;
that the Union "had the bargaining rights and that all matters pertaining to
employer-employee relationships should be submitted to the Union for a matter of
collective bargaining, and according to the past procedure and the terms of the
contract " The parties then discussed the procedure adopted by the Company in
contacting employee-members in regard to the Plan and the representatives
reached a "tentative agreement" whereby the Company, in the presence of repre-
sentatives of the respective parties, would call in each of the employees in the
unit, who had been previously contacted, and offer to return his card authorizing
participation in the Plan. The parties did not discuss what, if any, action should
be taken in the event the employee wished to continue in the Plan and refused
to accept the return of his card. Wilberding stated the Union made no request
upon the Company "to force anyone to do anything." As Tompkins did not attend
the meeting the company representatives expressed a desire to arrange another
conference so that the "tentative agreement" could be "reviewed" in his
presence. During the course of the meeting the company representatives asked
if the Union "would bargain on the plan," and Wilberding replied that "while
we didn't desire the plan as such, if the Company submitted it according to the
proper procedure, we would bargain on It." Wilberding testified that in using
the term "proper procedure" he was referring to the procedure "in the contract
itself," and so explained at the meeting.
Gray's version of the events at this meeting concerning the Union's position and
the Company's inquiry as to whether the Union desired to bargain upon the
Plan is substantially the same as related by Wilberding. In respect to the return
of the authorization cards to the employees, Gray said that the parties agreed the
cards were to be offered to the individuals in the presence of a company and
union representative and that the worker was to be informed that his card was
being returned because "the Union had accused the Company of unfair labor
practices," in contacting the employee. The company representatives agreed to
this procedure subject to the approval of Tompkins, and stated that another
meeting would be held when the latter was available . However, this meeting was
never held.
Ogg, Schenk, and Cope testified that the committee stated their opposition to
the Company's contacting its members and, after discussing the matter, the
parties tentatively agreed that the Company would offer to return the cards
to the employees concerned in the presence of a representative of the Company
and the Union. Ogg and Cope stated that since Tompkins was not present, and
the agreement was subject to his approval, another meeting would be held for
the purpose of discussing the same but that such a meeting was never held.
Schenk said he "believed" Williams told the Company that if the Plan was
"offered to us" the Union was willing to bargain thereon. Williams did not
testify in respect to this meeting.
Brice said that upon receiving the Union's letter, dated February 13, he imme-
diately called Tompkins who was in Cincinnati and read the contents to him.
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tompkins then told Brice to meet with the union committee and find out what
they wanted. Brice and Munger thereupon met with the union committee and
asked the purpose of the letter. Wilberding said the Union was complaining
of the manner in which the Company obtained the signatures of employees to
cards for participation in the Plan. The group then discussed methods of return-
ing the cards to the individuals with the Union requesting that they be returned
in the presence of a representative of each group and that the employee be
advised that this action was being taken because the Company, by contacting
the individuals, was guilty of having committed an unfair labor practice. The
company representatives denied the commission of any unfair labor practices
and the Union suggested that the statement be changed to the effect that the
Company had been accused of engaging in unfair labor practices. Brice and
Munger denied they made any agreement concerning the return of the cards but
stated that they would discuss the matter with Tompkins and advise the Union
of the Company's position concerning the subject. Both Brice and Munger denied
that the Union made any request during the meeting to bargain upon the subject
of the Plan, and Munger specifically denied that the Company asked the Union
if it was willing to negotiate on the same.
On February 16, Brice addressed a letter to the union committee in answer to
its communication of February 13. In short, Brice, after outlining the procedure
adopted by the Company in initiating and installing the Plan as well as the dis-
cussions thereon with the Union, stated :
We do not believe that this . . . Plan lies within the area of collective
bargaining. Whether it does or not, however, it is perfectly clear that it has
been freely discussed with representatives of your Union over a period of
many months and that every requirement of our contract, and of the law,
has been observed by the Company.
On February 19, the union committee wrote the Company that the only issue
concerned was the fact that the Company had violated the terms of the agree-
ment and the Act by establishing the Plan "without officially notifying the Union
to open negotiations on this subject," and that this dispute had been "tentatively
settled" at the meeting of February 14. In answer to the Company 's assertion
that the Plan had been discussed with the Union, the letter pointed out that the
mere explanation of the Plan to the union committee or members of the Union
could not be construed as collective-bargaining negotiations or any agreement on
the part of the Union to the acceptance of the Plan. Moreover, the union com-
mittee stated that the only agreement between the parties concerning a retire-
ment plan was embodied in the 1950 contract. In this respect the union committee
complained that although the Company had agreed to give a written statement
of policy concerning the retirement of employees over 65 it has never done so.
The letter concluded with the statement that unless the Company complied with
the terms of the settlement reached on February 14, the Union would take legal
steps in the matter.
On February 27, Brice wrote the union committee and admitted that the
Company had not issued any written statement of policy in respect to the pension
program but stated that in accordance with the terms of the 1950 contract the
Company, after the Plan had been put into effect, intended to request negotiations
on this subject. Brice denied that any definite agreement had been reached on
February 14 in regard to tendering the return of plan authorization cards to the
employees and concluded by stating that the Plan was not a subject for collective
bargaining.
On March 7, the union committee accompanied by Wilberding and Ray Ross,
regional director for the International Union, met with Martindale, Tompkins,
THE BLACK-CLAWSON COMPANY 945
Brice, Munger , and other company officials. Shortly before the scheduled hour
of the meeting the Company sent a telegram to Wilberding to the effect that by
agreeing to meet with the Union the Company was not waiving its position that
the Plan was outside the area of collective bargaining or that the Union 's recent
objection to the Plan was untimely and did not constitute good -faith bargaining.
Gray testified that Ross acted as spokesman for the Union and asked whether the
Company intended to continue the practice of soliciting individuals to participate
in the Plan and when payroll deductions therefor would be made. Representa-
tives of the Company replied that they would , upon individual request , return
authorization cards to the employees , and that payroll deductions would be
reflected in the next paycheck . Ross also inquired if the Company was maintain-
ing the position as expressed in its telegram and Martindale asked why the Union
had waited so long to question the Company 's procedure . Gray replied that the
Union as early as June 7, 1950 , had advised representatives of the Company
that the Plan was a proper subject for collective bargaining. The Company,
according to Gray, declared the Plan was not a bargainable subject and the
meeting thereupon concluded.
Wilberding stated that Ross told the representatives that he had "checked
over" a summary of the Plan and found that some phases of it were similar to
the standard UAW-CIO pension plan ; that since the Company contributed to the
Plan it was "definitely a matter to be bargained," and the Company should sub-
mit proposals in the nature of the Plan to the Union for that purpose. The
company officials answered that the Plan was not a bargainable issue. Ross
then declared that if the Company continued the Plan the Union would file
charges with the Board , and the company representatives agreed this might be
the only procedure which would clear up the matter.
Tompkins testified that Ross opened the meeting by announcing that the Plan
had been unlawfully instituted by the Company, whereupon Martindale asked
if he desired to eliminate the "CIO group" therefrom . Ross said he did not wish
the union members to be excluded but he did want the Company to cease indi-
vidual bargaining with these employees. Ross also stated that the Plan was a
bargainable issue, which Martindale denied , and further said that no request
to bargain had been received by the Company. Munger related that Ross asserted
that the Plan "should have been bargained " with the Union and Martindale said
it was "late in the game" to raise such a question . Tompkins , Munger , and Brice
denied that Ross, or any union representative , requested the Company to bargain
upon the Plan.
By letter dated August 31, 1951, Brice advised the Union that since the Plan
had been established the Company, in accordance with the terms of the 1950-51
contract as well as its previous announcement , desired to meet with the union
committee on September 5, for the purpose of discussing the written statement
of policy concerning its pension program for employees over 65 years of age.
On September 12, the meeting was held. Gray said that in substance the
Company agreed to draft a letter and submit it to the Union for approval which
letter was to remain effective until such time as a pension plan "could he nego-
tiated into the contract." Wilberding stated that he informed the company
representatives that while the Union was willing to discuss and dispose of the
policy letter, it was doing so without prejudice to the charge then pending before
the Board. Admittedly, the Plan was not discussed at this meeting, nor was
there any indication on the part of the Company that the Plan was to be part of
the pension program.
On September 21, the Company addressed a letter to the Union concerning
the pension program. On October 8, the Union acknowledged the letter and
expressed accord with the terms thereof , except that no mention was made of
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the fact that the letter would serve only as an interim agreement until such
time as the parties negotiated a pension program.
Contentions of the Parties
The General Counsel contends that the Plan is an appropriate subject for
the purposes of collective bargaining and that the Company by failing and
refusing to bargain collectively in good faith with the Union in respect to the
Plan engaged in conduct constituting a violation of Section 8 (a) (5) and (1)
of the Act. The Company denies that the Plan lies within the area of collec-
tive bargaining. Affirmatively, it asserts that although the Union never re-
quested the Company to negotiate concerning the Plan it nevertheless bargained
collectively with the Union in this respect, and that the Company acted in good
faith in the initiation and establishment of the Plan.
Upon the entire record in the case, and from observation of the witnesses, the
undersigned makes the following :
Findings and Conclusions
1. The Plan as a bargainable issue
In support of their assertion in this respect , counsel for the Company argue
that certain dictum of the Supreme Court in J. I. Case V. N. L. R. B., 321 U. S.
332, 339, to the effect that individual contracts "may embody matters that are
not necessarily included within the statutory scope of collective bargaining, such
as stock purchase, group insurance, hospitalization, or medical attention," sug-
gests that a profit-sharing plan is not within the area of collective bargaining.
However, in that case the Supreme Court was passing upon the issue of whether
individual contracts with employees precluded a choice of representatives and
warranted a refusal to bargain during their duration, which defense was rejected
by the Court. The scope of the statutory requirement to bargain collectively
was not an issue in the case. Moreover, the Supreme Court in a subsequent case,
U. S. v. United Mine Workers of America, 330 U. S. 258, seemingly changed its
previously expressed view for in commenting upon the agreement between the
Secretary of the Interior and the Union, under which the mines operated during
the period of Government possession, stated :
It should be observed that the provisions [welfare and retirement fund,
and medical and hospital fund] relate to matters which normally constitute
the subject of collective bargaining. . . .
The Government in order to maintain production . . . has substituted
itself for the employer in dealing with those matters which were formerly
the subject of collective bargaining between the union and the operators.
The Board in Inland Steel Company (77 NLRB 1) found the Company's
retirement and pension plan to be included within the meaning of the term
"wages" and "other conditions of employment" as used in Section 9 (a) of the
Act and, therefore, a proper matter for collective bargaining. The Board's
order was enforced by the United States Circuit Court of Appeals for the Seventh
Circuit in Inland Steel Company v. N. L. R. B., 170 F. 2d 247 (cert. den. 336 U. S.
960). The Board in later cases, Tidewater Associated Oil Company, 85 NLRB
189, and The Jacobs Manufacturing Company, 94 NLRB 1214, held pension plans
or programs to be within the ambit of collective bargaining.
In consideration of the foregoing authorities the undersigned finds and con-
cludes that the Plan at times material was an appropriate subject for the pur-
poses of collective bargaining.
THE BLACK-CLAWSON COMPANY 947
The argument of counsel for the Company that by requiring an employer to
bargain on the subject of profit sharing might result in union demands for
profit participation thereby threatening the "free enterprise system" and per-
haps invade the privacy of employers is not persuasive and is rejected.
2. The alleged refusal to bargain collectively
The complaint alleges that the Company, since about November 15, 1950, has
failed and refused to bargain collectively with the Union upon the subject of the
Plan.
The evidence, as detailed above, discloses that on May 11, 1950, the Company,
by resolution of its board of directors, decided to institute the Plan, then in
tentative form, and authorized the president to take necessary steps in this
regard including notification and explanation of the Plan to the union com-
mittees representing its employees in various bargaining units throughout its
plants. At that time the Company and the Union were signatories to a collec-
tive-bargaining agreement. However, about May 12, each of the parties served
timely notice of their intention to modify certain provisions of this agreement.
On May 19, members of the various union committees, including all five mem-
bers of the charging Union's committee, representatives of certain unorganized
employees, and company officials attended a banquet held by the Company for
the purpose of announcing the proposed Plan and having Roeder explain the
same. Sometime during the week following the banquet the Company dis-
tributed copies of the proposed draft of the Plan. On May 26, and again later
in the month or early June, Tompkins and Klock met with subcommittees of
the unions at which the Plan was discussed and changes therein suggested by
representatives of at least one of the subcommittees. At the second meeting
Klock informed the representatives that it would be necessary to recall Roeder
to explain the details of the Plan to the employees. Thereafter, about June 7,
the union committee and Tompkins and Klock held their regular meeting for
the purpose of discussing grievances. Gray testified that after the meeting
Klock advised the committee that the Company had made arrangements for
Roeder to speak to various groups of the employees on specified dates. Gray
said he complained of this procedure and told Tompkins and Klock that since
the Union was the bargaining agent for the employees in the particular unit the
Company should bargain with it concerning the Plan. He and Klock then dis-
cussed the matter but Klock did not reply to his statement in respect to bar-
gaining with the Union. Cope, Ogg, and Schenk corroborated Gray's testimony
that statements concerning the speaking schedule and that the Company should
bargain upon the subject of the Plan were made at the termination of the griev-
ance meeting. Tompkins and Klock specifically denied that the parties even
discussed the Plan, or the speaking schedule, or that Gray made any request
upon them to bargain on this occasion. As the foregoing evidence relates to
acts occurring more than 6 months prior to the filing and service of the charge,
such evidence, as conceded by the General Counsel, may be considered only as
background to explain and clarify events occurring within the statutory period.
(Gagnon Plating & Manufacturing Company, 97 NLRB 104.) It may well be
that Gray's version accurately portrays the events occurring at the foregoing
meeting. However, his statement that the Company should bargain upon the
Plan and refrain from having Roeder address the employees can hardly be
construed as a forthright demand for bargaining rights. True, such a demand
need not be couched in technical or legal language, but on the other hand it
must be reasonably clear that the Union desires to enter into bargaining nego-
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tiations . Here the so -called demand was unaccompanied by any request for a
meeting with the Company . Again, assuming that the Company ignored Gray's
statement there is no evidence that Gray or the Union took any steps whatsoever,
within a reasonable time, to protect the rights guaranteed under the Act. Under
all the circumstances Gray's statement impresses the undersigned as being more
in the nature of a complaint against Roeder addressing the employees rather
than a demand for bargaining upon the subject of the Plan.
Subsequently, Klock, about June 12, after securing approval of the chairmen
of the respective union committees for Roeder 's return to the plant, asked Cope
if this action was satisfactory to him and he replied that it was all right with
him but he would have to contact the international representatives . However,
he was unable to reach these individuals . Thereafter , about June 13, the Com-
pany posted Roeder 's speaking schedule , commencing the following day, for the
various groups of employees . About June 14, the Union called a special meeting
of its members and voted not to attend the Roeder meeting. On the same day
Cope resigned as chairman of the committee and so informed Klock. The
latter had a copy of the notice of the union meeting and remarked to Cope that
"the UAW is out." Klock gave Gray a letter setting forth Roeder 's speaking
schedule , which specifically stated that attendance was not compulsory . There-
after , meetings were held as announced in the schedule but the union committee
and the membership refrained from attending the same. Obviously , neither the
Company nor the Union had any further discussion or meetings concerning the
Plan until the latter part of October when the Union agreed to have Roeder speak
to its members and a meeting for this purpose was held about November 6.
Meantime the Company and the Union engaged in negotiations for several
months, which culminated in the execution of an agreement on September 7,
effective as of July 15, for a period of 1 year . In the course of these negotiations
the Union submitted a proposed retirement plan which was discussed fully by
the parties . Although no agreement was reached concerning this plan , the parties
agreed to reserve this topic for future negotiations and a provision to that effect
was included in the contract as executed . In this connection the parties agreed
that the Company would maintain its existing policy of retiring employees over
65 years old , and submit to the Union a written statement in respect to this policy.
Admittedly , the Union did not request the Company to submit any counter-
proposal to its proposed pension plan , nor did the Company offer its Plan as a
counterproposal. In fact the Plan was not even discussed during the contract
negotiations.
The undersigned finds that on November 22, the Company adopted the Plan
and distributed a printed summary thereof among some members of all the union
committees . In this pamphlet the Company announced the adoption of the Plan,
contingent upon 70 percent of the employees voluntarily becoming members on
or before December 31. On December 14, Klock at the farewell dinner , at which
Williams was present , spoke of the adoption of the Plan and urged the employees
to sign cards for participation before "any freeze" might forestall its installation.
On January 8, 1951 , the Company posted notices on its bulletin boards stating
the Plan had been approved by the Treasury Department and that the time for
participating therein had been extended by the Company . Employees who had
not yet signed authorization cards were urged to contact their foremen or the
personnel office.
It is undisputed , and the undersigned finds, that on January 3, 1951, Gray,
acting on behalf of the Union , formally requested the Company to reopen the
existing agreement for the purpose of negotiating a cost-of-living increase. Gray
conceded that the contract was not subject to reopening at that time. Never-
THE BLACK-CLAWSON COMPANY 949
theless the Company agreed to the Union 's request and entered into negotiations,
which on January 15 resulted in the parties executing a supplemental agreement
providing for a cost-of-living wage increase.
The undersigned further finds that about February 3, 1951, the Company sent
letters to its employees, together with a question-and-answer pamphlet on the
Plan, stating that while a large number of the workers had joined the Plan,
there were still some who had not signed cards and that these employees would
be personally contacted within the next few days. Members of the union com-
mittee conceded they received such letters and pamphlets. Although Gray
declared he considered this action as an attempt to solicit individuals into the
Plan he did not call a meeting of either the committee or the membership, nor
did he communicate with any officials of the Company. In line with its declared
procedure the Company, through Caldwell, commenced interviewing individual
employees and about February 8, contacted the employees in the unit represented
by the Union. The General Counsel concedes that Caldwell's activities do not
constitute an independent violation of Section 8 (a) (1) of the Act.' On Feb-
ruary 9 Gray Informed Wilberding of the above events, and on February 13 the
union committee sent a letter to the Company accusing it of bargaining individ-
ually with its employees "without consulting" the Union in violation of the
agreement and the Act, and requesting that such activities be discontinued.
On February 14, Wilberding and the union committee met with Brice and
Munger . The witnesses uniformly testified , and the undersigned finds , the com-
mittee complained of the Company's action in contacting its members in regard
to signing cards for participation in the Plan. It is also clear that the repre-
sentatives discussed the question of having the Company tender the cards to the
individuals involved with a statement of the reasons why the cards were being
returned. The evidence of the General Counsel is to the effect that the company
representatives agreed to this procedure, subject to the approval of Tompkins.
However, Brice and Munger denied that any agreement was reached and each
declared that the Union was merely informed that the matter would be submitted
to Tompkins and that the Company would then advise the Union of its position
in regard to returning the cards to the employees. While the evidence adduced
by the General Counsel and the Company varies somewhat in respect to events
at this meeting, nevertheless the conclusion to be drawn from the testimony
on either side is to the same effect, namely, that no final agreement was reached
by the parties upon the questions discussed. The undersigned so finds. Wil-
berding and Gray also testified that Brice asked the union representatives if they
were willing to bargain upon the Plan and Wilberding replied that while the
Union "didn't desire the plan as such" it would bargain thereon, provided the
Plan was submitted in accordance with the procedure outlined in the current
agreement . Brice and Munger stated that the Plan was not mentioned at the
meeting and Munger specifically denied that the Company asked the union repre-
sentatives if they were willing to bargain upon the same. Although other mem-
bers of the union committee, Ogg, Schenk, and Cope, testified in regard to this
meeting, none of these individuals stated that the company representatives in-
6 the General Counsel argues that the evidence in respect to Wehr 's signing
an authorization card ( supra ) "is significant on the methods used ." While Superintendent
Sortman undoubtedly directed some blunt remarks to Wehr concerning his signing up in
the Plan there is not testimony that Sortman thus spoke to any other employees. More-
over, Wehr had been an employee for more than 80 years and perhaps his acquaintance
with the superintendent prompted the latter to speak plainly to him . Wehr gave no indica-
tion at the hearing that Sortman's remarks influenced him in signing an authorization
card and later he voluntarily increased his contribution to the Plan . The undersigned
therefore places no importance upon this incident.
257965-54-vol. 103-61
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quired whether the Union was willing to bargain upon the Plan. Under all the
circumstances the undersigned is not persuaded that the General Counsel has
established by a fair preponderance of the evidence that the statement attributed
to the company representatives at the meeting by Wilberding and Gray was made
by them. But even assuming that the statement was uttered it would certainly
not support a finding that the Company thereby engaged in any unlawful conduct.
It appears to the undersigned that if any importance is to be attached to the
purported statement, it is the plain declaration that that Union did not desire
to be a party to the establishment of the Plan or one of like character.
Thereafter the parties engaged in correspondence, as set forth above, concern-
ing their respective positions in the matter. Thus, the Company, on February 16,
reviewed the procedure leading to the adoption of the Plan in the course of which
it informed the Union that although the Plan may not be a bargainable subject,
still it had been discussed with the union representatives over a period of many
months. In its reply of February 19, the Union accused the Company of establish-
ing the Plan in violation of the Act and the existing contract because it did not
officially notify the Union of its desire to open negotiations on this subject. The
Union also stated the dispute had been tentatively settled at the meeting of
February 14 and unless the Company complied with these terms it would resort
to legal procedure. Finally, the Union pointed out that the only agreement be-
tween the parties pertaining to a retirement plan was contained in the 1950 con-
tract, and in this respect the Company had failed to issue a written statement
of its policy in retiring employees over 65 years of age. On February 27, the
Company informed the Union that the Plan was not a bargainable subject and
denied that any agreement had been concluded at the meeting of February 14.
The Company conceded that it had not issued a written statement on its retire-
ment policy but declared it intended to request negotiations on this subject.
Thereafter the parties agreed to meet on March 7. Immediately prior thereto
the Company advised the Union by telegram that in so meeting it was not waiv-
ing its position that the Plan was not a bargainable subject or that the Union's
objection to the Plan was untimely and did not constitute good-faith bargain-
ing. While the evidence is not without conflict in certain respects, it is plainly
established, and the undersigned finds, that Ross, the union spokesman, stated
that the Plan had been illegally instituted by the Company and that Martin-
dale declared the Plan was not a proper subject for collective bargaining. On
the question of whether the Union made any demand for bargaining at this
meeting, Wilberding testified that Ross said the Plan "was definitely a matter to
be bargained" and "discussed the fact that the Company should submit pro-
posals of the nature of this retirement plan to the Union." Gray said Ross
asked the Company if it was standing on its position as expressed in the telegram
and if it intended to continue its practice of soliciting members of the Union
to join the Plan. Martindale then inquired as to the reasons for the Union's
delay in objecting to the procedure followed by the Company, and one of the
representatives added that the Company would, upon request, return authoriza-
tion cards to any individuals desiring the same. Gray stated that the Union
had informed the Company that the Plan was bargainable as early as June 7,
1950. Witnesses on behalf of the Company denied that the Union made any
request for bargaining on this occasion. In the opinion of the undersigned
Wilberding's testimony, if standing alone and liberally construed, might sup-
port the inference that Ross was attempting to bargain with the Company upon
the Plan. However, Gray failed to corroborate Wilberding in this respect and
the import of Gray's testimony is that the Union was complaining principally
of the individual solicitation of its members to join the Plan. Wilberding's
THE BLACK-CLAWSON COMPANY 951
recitation of the position taken by Ross seems consistent with the testimony
of Munger , who said that Ross contended that the Company should have
bargained with the Union on the Plan. Granting that Wilberding 's testimony
infers a request for bargaining , it still receives no corroboration from Gray
and is denied by Tompkins , Munger , and Brice . The undersigned therefore
finds that the Union made no demand for bargaining rights on the subject of
the Plan at this meeting.
On September 12, the parties met to discuss a written statement to be issued
by the Company on its pension program , and which was issued on September 21,
but the Plan was discussed at this meeting.
Conclusions
Having concluded that the Plan , at all times material , was an appropriate
topic for coliective bargaining , it must now be determined whether the Company
has fulfilled its statutory obligation to negotiate in good faith with the Union
upon the terms of the Plan . It is, of course , well established that whenever an
employer is alleged to have engaged in violation of Section 8 (a) (5) of the Act,
the General Counsel must show that the complaining union not only is the repre-
sentative of a majority of the employees involved but that it has requested the
employer to enter into bargaining negotiations. While the request need not be
formal , nor made in any particular manner , it must be sufficiently clear to advise
the employer that the employees desire to bargain through their designated
representative . ( Fifteenth Annual Report of the National Labor Relations
Board ( 1950 ), p. 119. ) At the oral argument before the undersigned , the General
Counsel contended the Union requested the Company to bargain on June 7, 1950,
February 13, 19 , and March 7, 1951 , respectively . He further urged that the
Company in its letters of February 16 and 27 , 1951 , as well as its telegram of
March 7, stated that the Plan was not a bargainable issue, which plainly consti-
tuted a refusal to bargain . The events of June 7 are discussed above and need
not be repeated . The letter of February 13 accuses the Company of dealing with
individual members of the Union , without consulting it, and threatened the Com-
pany with legal action in the event it continued its activities . The Union made
no reference to the Plan in this letter , nor did it request any meeting for the
purpose of negotiating upon the terms of the Plan . The events occurring at the
meeting the following day, as found above , justify the conclusion that the Union
was complaining of the solicitation of its members rather than making any re-
quest to bargain upon the Plan . It is true that the Company in its lengthy reply
to the Union 's communication of February 16 did state, for the first time , that the
Plan was not a bargainable issue. In its letter of February 19, the Union, after
pointing out that the Company had instituted the Plan without officially request-
ing it to bargain thereon, stated that the dispute had been settled at the meet-
ing of February 14, by the Company agreeing to return authorization cards to
the employees and advising them that the Union had charged the Company with
violation of both the Act and the agreement , hence , the Plan was being terminated
and the cards returned . Again, the Union made no request for bargaining nego-
tiations . This letter was acknowledged by the Company on February 27. Subse-
quently , the parties held a meeting on March 7 but, as detailed above, the Union
made no demand for bargaining upon the Plan.
In view of the findings set forth above as well as the inferences and conclu-
sions to be drawn from the correspondence between the parties , the undersigned
has no difficulty in reaching the determination that the Union failed to make
any demand for bargaining negotiations in respect to the Plan . Irrespective of
whether the Union had any intention to bargain upon this subject, it is undis-
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
puted that at no time during the critical period did any of its representatives,
either verbally or in writing, ever request the Company to meet with it, or to
set a date for a meeting, for the purpose of negotiating in respect to the Plan.
Indeed , the record is replete with testimony on the part of the General Counsel
that the Union was never asked to bargain upon the Plan, and conversely, the
Company's evidence is that it, likewise, was never requested to do so by the
Union. This evidence, being strictly of a negative character, cannot in the
opinion of the undersigned, be accepted as a substitute for a demand for bargain-
ing rights where none existed, nor under all the facts is it persuasive in estab-
lishing a refusal to bargain on the part of the Company.
The General Counsel further contends that the Company by unilaterally
adopting the Plan without notice to the Union and without giving it an oppor-
tunity to bargain engaged in conduct in clear violation of the Act. Unques-
tionably, an employer may not lawfully effectuate changes in working condi-
tions without affording the bargaining representative of the employees in-
volved a reasonable opportunity to present its views on the proposed changes.
(Tomlinson of High Point, Inc., 74 NLRB 681, 687.) Whether adequate notice
and opportunity to be heard has been afforded the bargaining agent is a question
of fact to be determined like any other factual issue. Here it cannot be seri-
ously argued that the Union had no notice in respect to the Plan for the Com-
pany publicly announced its intention to inaugurate this program to the vari-
ous union bargaining representatives at the plants and thereafter openly pur-
sued the normal procedure necessary to the adoption of the Plan. Despite a
background of harmonious labor relations covering a number of years and the
existence of a current agreement, the Union not only failed to make known any
demands or protests it may have had in the matter but also decided to refrain
from attending any meetings held by the Company concerning the Plan. As a
consequence neither party even mentioned the subject between June and Oc-
tober 1950. In sharp contrast to its attitude concerning the Plan, the Union
during May 1950, in full compliance with the statutory requirements of the Act
and the terms of its contract, served formal notice upon the Company of its
desire to modify the agreement. During extensive negotiations that followed
the Union did not bring up the Plan as a topic for discussion, although it did
present the Company with its own pension program, which the parties fully dis-
cussed but were unable to reach accord. Admittedly, the union representatives
did not ask for a counterproposal to its program and none was submitted by
the Company. Again, in January 1951, the Union served notice upon the Com-
pany of its desire to reopen the contract for the purpose of negotiating a cost-
of-living wage increase, at the same time conceding that the granting of this
request was not mandatory under the provisions of the agreement. Neverthe-
less the Company negotiated with the Union and within several weeks the par-
ties reached agreement upon the amount of the increase to be granted. Cer-
tainly, it cannot be said that the Union did not have ample notice and opportu-
nity to bargain upon the Plan had it so wished. The cases relied upon princi-
pally by the General Counsel are readily distinguishable from the instant case.
In General Motors Corporation, 81 NLRB 779, the charging union (the same
international union as in this case), in August 1947, requested the company
to bargain about "social security" which embraced group insurance. About 1
month later the company, without consulting the union, concluded an agree-
ment with an insurance carrier providing for a group insurance program cover-
ing all of its employees. The company contended that its unilateral action on
the program was not unlawful because "no union demand to bargain was made
or outstanding" at material times . The Board rejected this contention and held
that the request to bargain satisfied whatever burden the union may have had
THE BLACK-CLAWSON COMPANY 953
to initiate bargaining negotiations with respect to the program. The Board
also found that the union unsuccessfully again sought to bargain even after the
company had publicly announced its decision to institute its insurance plan. In
thus refusing to bargain with the union , the Board stated that the company was
acting in accordance with its stated position that even if the union had made a
proper demand it would not have bargained because of its conviction that the
insurance program was not within the area of compulsory collective bargaining.
Under the circumstances , the Board concluded that, apart from the alleged ab-
sence of a demand for bargaining , the company 's unilateral action in instituting
the insurance program without consulting the union constituted a violation of
Section 8 (a) (1) and (5) of the Act.
In Tidewater Associated Oil Company, 85 NLRB 1096, the Board found that
the company by rigidly maintaining that its retirement plan and pension poli-
cies were not a subject of collective bargaining and by acting unilaterally with
regard to its retirement plan refused to bargain collectively with the union
in violation of the Act. However, it plainly appears that the union made proper
demands upon the company that it bargain collectively upon the subject of the
retirement plan.
In Sullivan Dry Dock d Repair Corporation, 67 NLRB 627, the General Coun-
sel argues that the Board indicated where the employer acted unilaterally and
failed to give the union an opportunity to bargain, no prior demand was neces-
sary to establish a violation of the Act. The case hardly supports that prin-
ciple for the Board adopted the findings of the Trial Examiner who specifically
found that the employer had failed to notify the union and afford it an oppor-
tunity to negotiate concerning the payment of a bonus but elected to act uni-
laterally in disregard of its duty to negotiate thereon.
In Landis Tool Company, 89 NLRB 503, the Board decided that the granting
of a general wage increase to all employees without consulting or notifying
the union, with which it was then bargaining as the representative of a small
group of employees in an appropriate unit, was evidence of the company's
failure to bargain collectively. In enforcement proceedings, N. L. R. B. v. Landis
Tool, 193 F. 2d 279 (C. A. 3), the court declined to enforce the Board's order,
In passing upon the above question the court declared that the present situa-
tion was not one where the union had demanded a wage increase and the
company thereafter unilaterally increased wages but that the company was
faced with a practical problem of recognizing that the cost of living was rising
and that an increase should be granted to all its employees. The court also
pointed out that the union voiced no objection to the increase until several
months later and then merely stated that its representatives should have been
consulted.
In N. L. R. B. v. Bradley Washfountain Company, 192 F. 2d 144 (C. A. 7), the
court held that a company in granting wage increases and vacation benefits
after offering such terms to the union in the course of bargaining negotiations
was not unlawful since the union had been notified and consulted and the parties
continued their negotiations as to demands not granted. The court also de-
clared that this conduct did not interfere with the rights of either the employees
or their bargaining representative and, in the light of the amicable relationship
existing between the company and the union, this action could not be construed
as an attempt to disparage or undermine the union.
In L. L. Majure Transport Company, 95 NLRB 311, the company during bar-
gaining negotiations offered written counterproposals to the union which con-
tained so many harsh provisions that the Board stated anyone familiar with
contemporary collective-bargaining agreements "must have known that no Union,
let alone the certified bargaining representative, could possibly have agreed to
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such a contract." The parties met on three occasions but the company ada-
mantly refused to accede to a single change in its so-called contract. The union
then advised the company that further attempts to reach an agreement were
futile as it was unable to bring strike pressure to bear upon it. Shortly there-
after, the company contemplated wage and vacation changes and after notify-
ing the union in writing of its intention, which the union ignored, affected
these changes. The Board, on this phase of the case, found that the company
had given adequate notice to the union of its intention to make these changes
and in proceeding to make the same it did not thereby refuse to bargain with the
union.
Tested in the light of the principles established in the foregoing cases the
undersigned concludes that the Company gave adequate notice to the Union of
Its intention to initiate and install the Plan ; that the Union had reasonable
and ample opportunity to bargain collectively upon the Plan had it so desired,
and that the Company in establishing the Plan under the circumstances described
herein did not unlawfully interfere with the rights of its employees or the Union,
nor was it motivated by any desire to disparage or undermine the Union.
The contention that the Company assumed an uncompromising position that
the Plan was not a bargainable one is not supported by the evidence. As set
forth above, the Company in its communications of February 16 and 27, 1951,
and its telegram of March 7, did state that it did not believe the Plan to be a
proper subject of collective bargaining. However, this statement viewed in the
context of the particular documents and considered in the light of the events
that had transpired during the preceeding 8 or 9 months negates any significance
that ordinarily might be attached to such a declaration. Certainly there is no
evidence indicating that the Company had adopted an adamant or rigid position
concerning the bargainability of the Plan to the degree or intensity as that
maintained by the respective respondents in the General Motors and Tidewater
cases, supra, and which fully warranted the Board in finding that each of these
companies had reached a final determination that the subject matter was inap-
propriate for compulsory bargaining under the Act. Again, it must be remem-
bered that proper demands for negotiations upon the topic had been made by the
charging unions. In the Inland Steel case, supra, the charging union upon learn-
ing that the company had unilaterally altered its retirement plan to provide for
compulsory retirement of certain employees promptly filed a grievance in
accordance with the procedure in its existing contract, but the Company refused
to negotiate or deal with the Union on the grievance because it had no legal right
to question the Company's retirement policies.
It may be that the Company believed the Plan to be nonbargainable but in
any event the Union has precluded any test upon this issue by neglecting to
make a proper demand for negotiations on this subject.
The remaining points in the General Counsel's brief refer to the solicitation
of employees and the alleged waiver by the Union of its right to bargain con-
cerning the Plan. The evidence, as admitted by the General Counsel, is insuffi-
cient to warrant the conclusion that the solicitation of the employees to become
members of the Plan constitutes an independent violation of Section 8 (a) (1)
of the Act. The undersigned does not understand the Company's position to be
that the Union waived its right to bargain collectively but rather that by its
actions it acquiesed in the Company's establishment of the Plan. Having found
that the Company, for other reasons, has not refused to bargain collectively
in violation of the Act, it is unnecessary to determine whether the Union waived
Its right in this respect. For the same reasons, it also is unnecessary to pass
upon the Company's assertion that it did bargain with the Union on the subject
of the Plan.
HUMBOLDT FULL FASHIONED HOSIERY MILLS, INC. 955
Upon the foregoing findings of fact and upon the entire record in the case,
the undersigned makes the following:
CONCLusIONs OF LAW
1. The operations of the Respondent, The Black-Clawson Company, at its
plant located in Hamilton, Ohio, occur in commerce , within the meaning of
Section 2 (6) and (7) of the Act.
2. International Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, U. A. W.-C. I. 0., Amalgamated Local 176, is a labor organi-
zation within the meaning of Section 2 (5) of the Act.
3. The unit described above is a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act, and the Union at all
times material has been the exclusive bargaining representative for all the
employees in the unit. .
4. The Respondent, The Black-Clawson Company, has not engaged in unfair
labor practices as alleged in the complaint, within the meaning of Section 8 (a)
(1) and (5) of the Act.
[Recommendations omitted from publication in this volume.]
HUMBOLDT FULL FASHIONED HOSIERY MILLS , INC. and AMERICAN
FEDERATION OF HOSIERY WORKERS . Cases Nos. 32-CA-144 and
32-RC-211. March 224, 1953
Decision and Order
On October 13, 1952, Trial Examiner Lee J. Best issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent, Humboldt Full Fashioned Hosiery Mills, Inc., Humboldt,
Tennessee, had engaged in and was engaging in certain unfair labor
practices in violation of Section 8 (a) (1), (3), and (5) of the Labor
Management Relations Act, as amended, and recommending that the
Respondent cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached
hereto. The Trial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices in violation of
Section 8 (a) (3) of the Act and recommended dismissal of those por-
tions of the complaint herein which allege the discriminatory dis-
charges of Warren C. Boothe and Bessie K. Beasley. Thereafter, the
Respondent and the General Counsel filed exceptions to the Intermedi-
ate Report, and the Respondent filed a supporting brief. The Re-
spondent's motion for oral argument is hereby denied, as the record,
including the exceptions and brief, adequately presents the issues and
the positions of the parties.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Murdock and Peterson].
103 NLRB No. 98.