The Celotex Corp.

National Labor Relations Board - Board Decisions

Feb 20, 1964

146 N.L.R.B. 48 (N.L.R.B. 1964)

48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT promise you benefits to stay out of any union.
WE WILL NOT violate any of the rights you have under the National Labor
Relations Act, to join a union of your own choice , or not to engage in any union.
activities.
WE WILL offer reinstatement to Thomas A. Kirkham and James Klemann,
and will give them backpay from the time of their discharge.
ARTCO-BELL CORPORATION,
Employer.
Dated------------------- By------------------- '-----------------------
(Representative ) ( Title)
NOTE.-We will notify the above -named employees if presently serving in thee
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948 , as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Sixth
Floor , Meacham Building , 110 West Fifth Street , Fort Worth , Texas, Telephone No.
Edison 5-4211, Extension 2131, if they have any question concerning this notice
or compliance with its provisions.
The Celotex Corporation and Oil , Chemical and Atomic Work-
ers International Union , Local 4-179, AFL-CIO. Case ' No.
15-CA-2065. February 20, 1964-
DECISION AND ORDER
On June 13, 1963, Trial Examiner A. Bruce Hunt issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. Thereafter, the Respondent and the General Counsel'
filed exceptions to the Intermediate Report and briefs.
Pursuant to the provisions of Section 3 (b). of the National Labor
Relations Act, the Board has delegated its powers in-connection with
this case to a three-member panel [Chairman McCulloch and Members
Fanning and Brown].
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 Intermedi-
ate .Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, with the following modifications.
1. The Trial Examiner 's finding that the Respondent violated Sec-
tion 8(a) (5) and (1) was based in part on its cancellation of the em-
ployees' existing Metropolitan health insurance. The Respondent at-
tributed the cancellation to the fact that the same coverage would be
provided under the new, all-inclusive insurance package program ar-
146 NLRB No. 8.
THE CELOTEX CORPORATION 49
ranged with Aetna, a proposal which had been previously made a sub-
ject of considerable bargaining with the Union. The cancellation was
announced to the employees in a letter only after the Union was shown
the letter and made no objection or request for bargaining, so far as
the record shows.
We do not agree with this basis for the Trial Examiner's finding of
a violation. We note that the Respondent also advised its employees,
in the same letter, about another impending change in the existing in-
surance program (cancellation of the Blue Cross hospitalization in-
surance ). In this instance, the Trial Examiner found, and we agree,
that by first showing the Union the letter, the Respondent gave the
Union sufficient advance notification, and its later action in notifying
the employees did not bypass the Union or violate the Act.
We are of the opinion that in addition to the advance notification
given the Union concerning the Metropolitan insurance, the facts that
there was an apparent impasse in the bargaining negotiations, that
the current term of the Blue Cross insurance had expired, and that the
arrangement made with Aetna provided that the proposed package in-
surance would retroactively cover both the hospitalization insurance'
and the health insurance previously covered by Blue Cross and Metro-
politan, established the Respondent's good faith with respect to the
insurance actions it took.
2. The Trial Examiner's finding that the Respondent violated Sec-
tion 8 (a) (5) and (1) was also based on the Respondent's elimination
of "gift time" to the carloaders, or 8 hours' pay for working little more
than 2 hours, on April 3, 1962. Although this change of pay was ef-
fected unilaterally and without bargaining with the Union, we do not
agree that it constituted a violation. As the Trial Examiner found,
the shortage of work for the carloaders on that day was due to the
Union's slowdown and curtailment of production. In these circum-
stances, we cannot sustain the Union's claim that the Respondent
should have continued paying for carloading work which was not
availablebecause of the Union's unprotected activities.
3. The Trial Examiner found that the Respondent violated Section
8(a) (3) and (1) on April 4 by suspending the carloaders for 2 weeks
for engaging in a strike, and recommended that the Respondent make
each of them whole for this 2-week period. But there is no evidence
that the carloaders were willing to call off their strike and return to
work on the Respondent's terms during this period. Consistent with
our practice of not awarding backpay to discharged strikers until the
strike is terminated, we do not adopt the Trial Examiner's backpay.
recommendation. Since any affirmative relief for the carloaders is
thus inappropriate, and in view of the unusual circumstances of this
case , particularly the Union's unprotected provocations of the Re-
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent, we find it unnecessary to consider or adopt this unfair labor
practice finding.'
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner with the following modifications :
1. Substitute the following for the first paragraph of the Recom-
mended Order :
Upon the entire record in this case and pursuant to Section
10(c) of the National Labor Relations Act, as amended, the Na-
tional Labor Relations. Board hereby orders that the Respondent,
its officers, agents, successors, and assigns, shall :
2. Eliminate paragraph 1(c) and paragraphs 2(b) and (c) of the
Recommended Order and the corresponding two paragraphs of the
notice attached to the Intermediate Report as Appendix B.
1 Member . Fanning would affirm the Trial Examiner 's finding that Respondent violated
Section 8(a) (3) and ( 1) by suspending the carloaders for striking to protest . the unilateral
elimination of "gift time ." While he agrees that Respondent was within its rights in
eliminating the "gift time," he also believes that the carloaders had the right to act in
concert in protest thereof ' without being penalized.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, in which charges were filed on March 29 and April 6 , 1962, and
in which the complaint was issued on May 16, 1962, involves allegations that the
Respondent , The Celotex Corporation , Marrero , Louisiana, violated Section 8(a)
( 1), (3), and ( 5) of the National Labor Relations Act, as amended , 29 U.S.C.
151 et seq. On July 9 through 14, 1962 , Trial Examiner A. Bruce Hunt conducted
a hearing at New Orleans, Louisiana , at which all -parties were represented. On
August 13 , the Respondent filed a motion to correct the transcript , to which no ob-
jection has been filed. The motion is granted . On August 28, the Respondent
filed a motion to reopen the record for the purpose of receiving in evidence an
affidavit attached to the motion , and on August 31, the General Counsel filed a docu-
ment in opposition thereto. On August 31 and September 4, respectively , the Re-
spondent and the General Counsel filed their briefs. On January 28, 1963, 1 issued
a telegraphic order granting the Respondent 's motion to reopen the record for the
purpose of receiving the affidavit , and I asked that I be furnished a copy of the
new contract between the Respondent and the Union which was referred to in the
affidavit . I also expressed a wish to discuss with counsel the issues in the light of
that contract . On February 6, the General Counsel filed with me a "Motion for
Reconsideration" to which 'he attached a copy of the contract and in which he as-
serted that none of the legal issues had been resolved by execution of the contract.
The Respondent 's motion of August 28 to reopen the record , the attached affidavit,
the General Counsel 's opposition of August 31 thereto , my telegraphic order of
January 28, and the General Counsel 's motion for reconsideration of February 6, are
received in evidence , respectively , as Trial Examiner's Exhibits Nos. 1 through 5.
These documents are discussed below under the heading "The setting ." I treat the
motion to reopen the record as a motion to reopen the hearing, and I now declare
the hearing closed . The Respondent 's motion to dismiss the complaint is disposed
of in accordance with the determinations below. Upon the entire record and my
observation of the witnesses , I make the following:
FINDINGS OF FACT
. I. THE RESPONDENT
The Respondent , a Delaware corporation , is. engaged in the manufacture of insula-
tion board and related products for the building materials industry . It operates
THE CELOTEX CORPORATION 51
plants in several States, one being at Marrero , Louisiana. During 1961 the Respond=
ent shipped from that plant directly to points outside Louisiana products valued in
excess of $500 ,000. There is no dispute , and I find , that the Respondent is engaged
in commerce within the meaning of the Act.
U. THE UNION
Oil, Chemical and Atomic Workers International Union , Local 4-179, AFL-CIO,
is a labor organization which admits to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The principal issue is whether the Respondent violated Section 8(a) (5) and (1) by
certain conduct, including unilateral actions, in which it engaged during bargaining
negotiations with the Union. Another issue is whether the Respondent violated
Section 8(a)(3) in temporarily laying off a number of employees. The parties are
agreed that the Respondent genuinely sought an agreement with the Union and did
not engage in surface bargaining.
B. The setting
The Respondent operates eight manufacturing plants in as many States. At the
Marrero, Louisiana, plant, with which we are concerned, about 900 different products
are manufactured and they constitute nearly 40 percent of the total production of
,the 8 plants. The record does not disclose the extent to which the employees at the
various plants have been represented by labor organizations, but it does disclose that
no unfair labor practice case involving the Respondent was ever litigated.' The
record discloses also that the Respondent has been under contract with the Union
since 1941.
During a 1-year period beginning March 8, 1961, the Respondent and the Union
were parties to a detailed contract covering 60 printed pages. As the period ap-
proached its end, proper notice to terminate the contract was given by the Union,
and on February 12, 1962, the first of a series of unfruitful bargaining sessions took
place between the Union and the Respondent. With the expiration of the contract on
March 8, 1962, the Respondent ceased deducting union dues. There is a conflict in
the evidence concerning the remarks of the negotiators to each other about con-
tinuing in effect provisions of the contract on a day-to-day basis while a new con-
tract was being negotiated, but this conflict may be resolved by the single finding
that there was no agreement to continue the terms of the expired contract. On
March 23 the negotiations were suspended. Relations between the Respondent and
the Union declined, and each of those parties contributed to the situation. On
March 29, the Union filed its initial charge. On May 1 negotiations were resumed,
but were unsuccessful. On the same day, the Union called a strike which shut down
the plant. Thereafter, bargaining sessions were held less frequently. On May 16,
the complaint was issued. On July 9, the hearing opened. It was recessed in
order to enable the Respondent and the Union to negotiate for 2 days. Those
negotiations also were unfruitful, and the hearing was resumed.- On July 28, after
the close of the hearing, the Respondent and the Union reached agreement on a new
contract, to terminate on March 8, 1964. On July 30, 1962, a Monday, about 150
employees returned to work to prepare the plant for normal operations. Later that
week, the plant was placed in full production. The current contract is a complete
document, and no working conditions were left unnegotiated pending a decision in
this case. We turn from this outline of events to the specific instances in which the
General Counsel contends that the Respondent engaged in unfair labor practices.
C. The appropriate unit and the Union's majority status
The parties are agreed, and I find, that all hourly rated production, machinist, and
maintenance emnlovees at the Respondent's Marrero plant, excluding guards, su-
pervisors, and all other employees, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act. The parties also
agree and I find, that at all times material the Union has been the duly designated
i The General Counsel asserted that "many years ago" the Respondent entered into a
settlement of an unfair labor practice case. I have not examined the pertinent records to
ascertain the facts.
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative of a majority of the employees in the appropriate unit and, pursuant
to Section 9(a) of the Act, has been and is now the exclusive representative of all
the employees in such unit for the purposes of collective bargaining.
D. The Respondent's refusal to disclose financial data
During the negotiations, the Respondent rejected requests by the Union that the
latter be shown certain financial data. The question is whether the rejection falls
within the doctrine of N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149, and Tennessee Coal
& Iron Division, etc., 122 NLRB 1519. Unlike those cases in which the refusals to
disclose financial information occurred in bargaining over requests by labor organiza-
tions for wage increases, the refusals here occurred in bargaining over the employer's
request for contractual changes which would have resulted in lower earnings for
some employees.
The contracts between the Respondent and the Union, as they have developed
over the years, are lengthy, complex documents. By the time the 1961 contract
was negotiated , the Respondent had agreed to substantial restrictions upon its power
to schedule production ` operations and to assign employees to particular jobs.
Moreover , with respect to seniority , all employees had accumulated it for 14 or
more years , some in more than one classification , as, for instance , millwright,
carpenter, and welder. One employee had seniority in eight classifications. In the
1962 negotiations , the Respondent insisted that it needed relief from some of the
contractual provisions . Its position was that the plant was not competitive and
that the plant's position in the industry was such that there had to be a decrease in
labor costs. This proposed decrease did not involve hourly rates of pay. It in-,
volved instead such matters as decreasing overtime costs by changes in scheduling,
as well as decreasing incentive pay. Under the Respondent 's proposals , the earnings
of one employee would have been reduced about $4,000 annually. During the
negotiations the Respondent argued inter alia that economically the plant was in
serious difficulties , that the plant 's profit margin was "the worst last year since the
depression days," that the Respondent had "relinquished many of its rights to run
its business in an effective and an efficient manner ," that the Respondent "must
have these rights • [back]," and "that you [employees] have restrictions in this
[1961] contract to which you are not entitled." The Union's negotiators, largely
employees, were aware that in recent years there had been a substantial decline in
the number of employees and that the plant was.not operating as profitably as in
other years. One union representative conceded that there "is no denying but what
we have to get costs down here," and another, while not conceding that the plant
was operating at a loss, said that he had "no quarrel with the fact that business has
been bad." Those representatives argued, however, that the plant's costs were
high for reasons other than the terms of the contract, and listed certain areas in
which they contended that costs could be lowered. They argued too that the
provisions of the contract which restricted management's powers were, from the
Union's standpoint, the best portions of the contract and had been obtained in
the give-and-take of collective bargaining at the sacrifice of other demands.
When negotiations began on February 12, M. C. Strittmatter, a vice president
of the Respondent, recited, inter alia, the plant's production figures over several
years and asserted that the Respondent had to have economic concessions. A union
negotiator, Harry Zebal, asked why Strittmatter had not presented monetary figures,
and Strittmatter answered that net profit figures were not maintained for each
plant and that the Marrero plant "did not produce earnings in 1961." On Febru-
ary 19, Zebal, who had construed the quoted remark as meaning that the plant had
operated at a loss, complained that the Respondent had not produced monetary
figures. Strittmatter answered that he had not said that the plant had lost money,
that instead he had said that the plant "did not make money," and that the Re-
spondent maintains records which show each plant's gross profits but not net profits.
He declined to disclose the gross figure on the ground that it was not available to
stockholders or even to the individual plant managements. He argued, however,
that the plant's profit margin was the smallest since the depression and that more
man-hours were required to produce 1,000 feet of board at the plant than else-
where in the industry. While figures to show the low profit margin were not pro-
duced, figures were offered to support the contention concerning the number of
man-hours. Strittmatter also offered estimates of savings which would be accom-
plished if the Union were to accept the Respondent's proposals. In addition, he
pointed out that the Union had been given a copy of the Respondent's statement
showing the net profit or loss for all corporate operations, but the Union's rep-
resentatives remained' unconvinced that the plant had not made a profit.
THE CELOTEX CORPORATION 53
Two days later, on February 21, at another, bargaining session , the Union's prin-
cipal representative, Robert Palmer, asserted that the Respondent was pleading
an inability to continue to pay the amounts called for by the terms of the 1961
contract.. He said too that the union representatives were entitled to see "some
profit pictures for Marrero. last year." Strittmatter replied that: "the margins at
Marrero. were the worst last year since the depression days"; he had not said that
the plant was losing money;' he had said that it did not make money in 1961; he
could not be exact because of the "way. costs are computed"; he would- not dis-
close the plant's "gross profit picture"; the Respondent was not pleading an in-
ability.to pay; and "we have the ability to pay whatever we think is right to pay.
The problem still remains, however, to get the costs down." During the next 11
bargaining sessions , ending on March 23 with the breakdown in negotiations, the
union representatives did not again request that the plant's profit figures be dis-
closed. Nor was the request made at the next meeting, on May 1, which was
followed by the commencement of the strike, nor at a meeting on May 8 when the
Respondent and the Union dealt through a Federal mediator. At the next meet-
ing, however, on May 28, which was, called by the mediator, J. L. Dickson, the
plant manager , said, inter alia , that the Respondent had to have the elimination of
"anything that results in cost penalties," that he did not believe that " the serious-
ness of. the Marrero situation" was realized, that the Union. maintained its own
position very strongly because seniority rights were involved, but that "we must
turn Marrero around [toward profits] or we could lose Marrero, or most of
Marrero." During the meeting, Palmer asserted that the employees could not be
persuaded to accept the Respondent's proposals, and the Respondent had refused
to produce financial records of the plant. Dickson replied that net profit records
were not maintained for each plant, that the Respondent knew the cost of pro-
duction at the plant and the selling price of the products, but that the gross profit
figures were confidential. He said too that "each plant negotiated on its own and
had to stand on its own," and, with respect to overall corporate expenses, "Each
plant has to absorb its proportionate share of the corporate costs." The discussion
on this issue ended with Palmer's statement that "We would like to see [the gross
profit figures for the plant]. You haven't convinced us that Marrero is in bad shape.
If you can show us, then this Union will be willing to work with you to give relief."
Later, during the first 2 days of the hearing, when the litigation was suspended
to permit bargaining sessions , Palmer unsuccessfully renewed his request for the
financial data.
Turning to the meaning of "net profit" and "gross profit" as the Respondent uses
those terms, gross profit figures are maintained for each plant. Those figures rep-
resent the selling price of the product less manufacturing costs such as wages and
salaries, raw materials, depreciation, insurance, and other operating expenses. Net
profit, on the other hand, is determined only for the corporation as a whole. Net
profit is-determined by adding the gross profits of all plants and deducting from the
sum thereof corporate overhead items which are not figured in determining manu-
facturing costs. Such overhead items include the cost of operating a research center,
the executive offices, 17 district sales offices, an industrial relations-department, a
patent office; a central accounting office, a traffic department, and a credit and
collection department.
As recited, the General Counsel asserts that the Truitt and Tennessee Coal &
Iron cases are applicable to this issue. On the other hand, the Respondent points
out that in those cases the monetary dispute arose from requests by the labor:organi-
zations for wage increases, whereas the contrary is true here, and that in those
cases the employers had asserted their inabilities to pay the requested increases. The
Respondent argues further:
the data requested were either non-existent (Marrero net) or were
irrelevant and distracting (Marrero gross). In view of the Union's abandon-
ment of its requests for over three months, it is fair to conclude that they were
they were waived [authority cited] and that their renewal finally made on
May 28 was in bad faith, to manufacture NLRB ammunition. Finally, the
Union negotiators were well aware of Marrero's marginal condition in view
of the severe losses in sales, production, and work force; there was no need for
any such data.
With respect to whether the Respondent pled an inability to continue to pay the
overtime and incentive scales set forth-in the 1961 contract, the record is clear that
the Respondent said to the Union that it was not pleading an inability to pay and
that it could pay "whatever we think is right to pay." The G=eneral Counsel contends,
however, that the facts establish' that the Respondent pled an inability' to pay.
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In this connection , we have seen that the Respondent took the position that the plant
had such an unfavorable position competitively that labor costs must be decreased,
that the negotiations would be conducted "on the basis of what this operation
[plant] can justify," and that each of the Respondent 's plants "negotiated on its own
and had to stand on its own." Although the Respondent insists that it did not
plead an inability to pay, I believe that it did . The Respondent 's statement that it
had the ability to pay whatever it thought was. right must be evaluated in the
light of its additional statements that the plant was not being operated profitably
and that the negotiations would be upon the basis of the labor costs which the plant,
not the entire corporate operations, could afford . Cf. Tennessee Coal & Iron , supra;
Cincinnati Cordage and Paper Co., 141 NLRB 72. Moreover , I am unpersuaded
by the Respondent 's contention that Tennessee Coal & Iron and Truitt are distin-
guishable on the ground that there the unions were seeking wage increases whereas
here the employer was seeking a decrease in labor costs . In all three cases the
subject being negotiated was the income of employees , and I should think that the
decided cases are as applicable to an employer 's demand for a decrease in em-
ployees' income as to a labor organization's • demand for an increase.
We turn to the Respondent 's defenses that there were no figures on the plant's
bet income, and , that the figures on its gross income were irrelevant and would
have been meaningless and distracting if the Respondent had produced them. There
is uncontradicted testimony by the Respondent , already recited , that its only net
income figures are those of the corporation as a whole. It does not follow, however,
that meaningful net income figures for the plant could not have been furnished to
the Union . This is so because, as we have seen , on May 28 Plant Manager Dickson
said that "Each plant has to absorb its proportionate share of the corporate costs."
The quotation indicates that the Respondent had determined the share of such costs
which was charged against each plant , and the deduction of Marrero 's proportion
from Marrero 's gross . profits would have given a meaningful figure. With respect
to Marrero 's gross profit figure, while it is true that the figure would not have been
as meaningful to the Union as, a net profit figure , it does not follow that the gross
profit figure would have been meaningless . It had been meaningful to the Re-
spondent because the Respondent's insistence upon decreases in labor costs had been
based in part upon the plant's gross profit figure.
The next defense is the contention that the Union was "well aware of Marrero's
marginal condition in view of the severe losses in, sales, production , and work force"
and in view also of other figures which the Respondent had given to the Union.
There is no doubt that the Union's negotiators were aware of the plant's declining
position . But this awareness was not such that those negotiators could bargain
intelligently upon the extent to which they should agree to decreases in the incomes
of employees . They were entitled to profit or loss figures in order to intelligently
evaluate the Respondent's demands and to determine the extent to which they
should urge the employees to make concessions . Finally , I do not agree that the
Union, by failing to press its demand for profit or loss figures at some bargaining
sessions , waived the demand . During the early bargaining sessions , the Union made
the demand more than once, and each time it was rejected. I do not believe that the
Union's failure to repeat the demand again until May 28 warrants a finding that the
demand had been waived, particularly where, as here, the demand was related to
concessions being asked by the Respondent, not by the Union.
E. The Respondent 's actions involving an insurance program for employees
The 1961 contract provided for insurance of three types, to all of which the
Respondent made monetary contributions: hospitalization by Blue Cross, health
and accident by Metropolitan, and life by Aetna. In earlier negotiations, the
Union had proposed that there be a single insurer, and in 1962 the Respondent and
the Union exchanged proposals for all the coverage to be handled by a single carrier.
The Respondent favored a proposal by Aetna. The Union objected, contending
that like coverage could be obtained at less cost from other carriers. The Union
advanced proposals through its own insurance broker, but these were unsatisfactory
to the Respondent. When negotiations broke off on March 23, the Respondent and
the Union were far apart. Their 1961 contract had expired on March 8. Their
relations declined rapidly, with each side resorting to tactics designed to put pressure
on the other. In this section we consider certain tactics of the Respondent. Later
on we shall consider certain tactics of the Union.
The Blue Cross coverage was due to terminate on April 1. That carrier had
offered to continue it at higher rates, but the rates were unacceptable to the negotia-
tors. All concerned were aware of the approaching termination. On March 29,
THE CELOTEX CORPORATION 55
after the suspension of negotiations , the Respondent showed Noah Ford and Harry
Zebal , the Union 's president and its business representative , respectively, a letter
dated that day which the Respondent proposed to mail to each employee. The
letter dealt with several subjects and said in part:
effective April 1, 1962, Blue Cross is cancelling Hospitalization Coverage
for employees. .. .
We have arranged with Aetna Life Insurance Company to establish
the new insurance Plan (which is included in the Company's Offer) effective
April 1, 1962, provided that a contract agreement is reached within a reason-
able period. After April 1, 1962, as long as the parties are working without
a contract, there will be no deductions from your paycheck for this plan nor
will any claims be paid . However, if a new contract is agreed to in a reason-
able period, then claims arising after April 1, 1962 will be paid under the new
insurance program and payroll deductions will be made for the applicable
premiums covering the period beginning April 1, 1962.
During the earlier negotiations , the Respondent had not informed the Union in
exact words that the Aetna program could be made effective on April 1, nor had
the Respondent said that the Aetna program could be made retroactive to that date
if a contract should be reached within a reasonable period thereafter. The Gen-
eral Counsel contends that the Respondent , in mailing the letter to the employees,
bypassed the Union and thereby violated the Act. I disagree. I am impressed
by the Respondent's assertion that the April 1 effective date for Aetna coverage
"necessary [had been] on the table, and thus offered to the Union previously," in
view of the known pending termination of Blue Cross coverage. Obviously, if
the negotiators had reached agreement before April 1, and if the agreement had
embodied the Union's acceptance of the Respondent's insurance offer, the Aetna
coverage would have become effective on that date. Moreover, I do not believe that
the Respondent committed an unfair labor practice by informing the employees that
the Aetna coverage would be retroactive to April 1 if a contract should be reached
within a reasonable time. The retroactive feature had been arranged between the
Respondent and Aetna after it had become apparent to the Respondent that there
would be a period of time in which the employees would not be covered by hos-
pitalization insurance , and the Respondent notified the Union 's president and busi-
ness representative before notifying the employees? I believe that such notification
was sufficient . Bargaining sessions had been suspended . The two parties were
so far apart on other matters that the retroactive feature could have had no effect in
bringing them together. As the Respondent says, the feature was "a trifling addition
to the [insurance] package" which the Respondent had offered.
In the Respondent's letter of March 29 to employees, the following sentence also
appears:
The Metropolitan Sickness and Accident Plan will also be cancelled April
1, 1962 since the same type of coverage will be provided under the new In-
surance Program when it is established.
The General Counsel contends that the Respondent's unilateral cancellation of the
Metropolitan policy violated Section 8(a)(5) and (1). On the other band, the
Respondent argues that it had "some justified expectation of eventual acceptance
of the Aetna offer" by the Union, that "cancellation of the Metropolitan coverage
was necessarily contemplated by both parties in their whole course of bargaining
for a single package deal, one carrier for all benefits," and that lawfully there could
not be double coverage. The record will not support a finding that on March 29
the Respondent had a basis to justifiably expect its Aetna offer to be accepted even-
tually or that other provisions of a contract would be agreed upon within a reason-
able time. The Metropolitan coverage was a condition of employment. Its
cancellation represented a substantial change in those conditions. The cancellation
having been made without prior bargaining with the Union on the specific subject,
the Respondent thereby violated Section 8(a)(5) and (1). The Crestline Com-
pany, 133 NLRB 256.
The next aspect of the insurance negotiations to be considered involves the
Union's efforts to obtain at its own expense hospitalization coverage to replace
the expiring Blue Cross plan, and the Respondent's actions which blocked the
Union's efforts in one instance and hindered the efforts in another. The com-
plaint alleges that the Respondent's actions constituted violations of Section 8(a) (5)
and (1). While the Respondent's version of the facts differs somewhat from the
2 The Respondent and Aetna did not define "reasonable time" In terms of days.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel's version, there is no dispute about the result of the Respondent's
actions. On or about April 10, Oswin O' Brien , a representative of New England
Mutual Life Insurance. Company, began enrolling employees under an insurance
program for the Union on which he had been the successful bidder. On April 11,
the Respondent contacted someone at a New England Mutual office in another
State, and -O'Brien soon received a long-distance call from a superior who directed
him to confer with representatives of the Respondent . On April 12, O'Brien con-
ferred at the plant with Dickson and other representatives of management . O'Brien
asked several questions, one of which was "the status of the group insurance inso-
far as Celotex was concerned," and Dickson replied that Aetna had agreed to an
insurance plan which would be retroactive to April 1 upon the execution of a
contract between the Respondent and the Union. Later, O'Brien wrote to the
Union that his employer "must withdraw their proposed plan of group insurance"
because the Respondent had "entered into a contract" with Aetna and it " is illegal
for group insurance to be supplied by two companies." Subsequently, the Union
obtained insurance from Washington National Insurance Company .3 The com-
plaint alleges that the Respondent invalidly "interfered with attempts by the
Union to acquire insurance coverage.. . The Respondent's position is that
it communicated with New England Mutual because of an obligation to itself to tell
the insurance company that it was not participating in the Union' s plan , thereby
assuring that it would not run a risk of liability. I do not credit the Respondent's
protestations that it sought merely to protect itself and that it did not seek to
interfere with the Union's efforts to obtain insurance coverage. It is reasonable to
conclude, and I do, that the Respondent persuaded New England Mutual that its
policy would be succeeded by Aetna's policy whenever the Union and the Respond=
ent should enter into a contract. It does not follow, however, that the'Respond-
ent's conduct was an unfair labor practice. The record is clear that the Respondent
was not seeking to avoid a contract with the Union; on the contrary, its tactic in
this instance was to put pressure on the Union to agree to terms favored by the
Respondent. As we shall see in the next section of this report, the Union was then
engaging in its own pressure tactics which did not constitute bad-faith bargaining,
and I can see no meaningful difference. I shall recommend that this allegation be
dismissed.
.The final allegation concerning the insurance matters involves the Respondent's
unilateral withdrawal of its proposed Aetna insurance coverage. On May 8, the
Respondent mailed a letter to employees in which it said, inter alia , in reference
to the hospitalization coverage which the Union had obtained through Washington
National:
The Company has been officially notified by the Union Committee that the
majority of Local 4-179 employees have enrolled in an insurance plan ar-
ranged through the Union. . . .
However, since most employees have chosen another form of insurance and the
prospects of an early labor agreement have been dimmed by the strike [which
had commenced on May 1] the Company is forced to withdraw its insurance
plan offer.
This action by the Respondent constituted withdrawal of its offer of the 'Aetna
insurance "package." It did not involve cancellation of the Aetna life insurance,
which was continued in effect. The question is whether the Respondent was re-
quired to bargain with.the Union concerning the withdrawal of the offer. I believe
not. The hospitalization coverage which the Union had obtained had been retro-
active to April 1, and thus was like a portion of the Aetna "package." That "pack-
age" had been offered by the Respondent as a unit, to be accepted or rejected in
its entirety, and the Union's negotiators had so understood. The record is clear
that Washington National had not been interested in providing short-term coverage
to the employees, and on May 1 a union negotiator had indicated to the Respondent
3 The Respondent also contacted Washington National, which thereafter sought to with-
draw its insurance plan. The plan was not withdrawn, however, and at the time of the
hearing employees were covered by it. The record does not contain competent evidence to
establish the Respondent's dealings with Washington National, but the absence of such
evidence is not crucial because there is no reason to suppose that the Respondent's conduct
with that carrier was any more violative of the Act than its conduct with New England
Mutual.
THE CELOTEX CORPORATION 57
that the coverage by Washington National was not to be of short duration 4 Thus,
the Union , by its action in obtaining the Washington National insurance , had made
-the Respondent 's offer of the Aetna "package" inoperable . The Respondent was free
to withdraw its offer.
•
F. Unilateral work assignments and scheduling of operations
We now consider certain unilateral actions which the Respondent took in order
to maintain production in the face of concerted refusals by employees to accept
work assignments . The principal machines in the plant are "board machines." They
are expensive to start and to stop . Consequently , once started , they are operated
continuously for at least several days on a 3 -shift basis . The 1961 contract provided
that the workweek would begin on Mondays . It might extend a full 7 days.
Overtime provisions of the contract were detailed . Employees were required to work
overtime , if requested , in order to ( 1) put production units into operation after a
shutdown , and (2 ) shut down operations after the close of a shift. In addition, the
contract required that an employee continue at work 2 hours after the close of his
shift if his replacement for the next shift should not report to work . Overtime
in those instances is called "mandatory ."- In all other instances of overtime work,
called "voluntary," the employees were free to decline requests that they work.
As we have seen , on March 23 negotiations for a new contract were suspended.
A few days earlier , employees within the unit began a concerted refusal to accept
voluntary overtime assignments . The number of employees who had performed
such work dropped from about 200 to zero. During the 6 workweeks ending
March 18, the number of hours of overtime , both voluntary and mandatory , averaged
5,238 weekly. During the 6 workweeks after that day and until the commencement
of the strike , the overtime, all mandatory , averaged 1,006 hours . The position
of the General Counsel and the Union is that the employees ' concerted refusal to
work voluntary overtime was a maneuver in retaliation for the Respondent 's having
unilaterally instituted a "partial lock-out" by reducing the number of workdays per
week . The evidence , however , does not establish such "partial lock-out," and I
conclude that the concerted refusals to accept voluntary overtime were a pressure
tactic by the Union intended to induce the Respondent to accept the Union's
contractual demands.5 The General Counsel also contends that the employees' re-
fusals to accept voluntary overtime assignments were merely an exercise of rights
reserved to them in the expired contract , that is, that the employees ' conduct was
consistent with established employment practices . On the other hand, the Re-
spondent points to other provisions of the expired contract which prohibited
strikes, slowdowns , or other actions to curtail production , and the Respondent argues
that the provisions which permitted employees to reject voluntary overtime assign-
ments were necessarily in contemplation of,individual rejections for personal reasons,
and were not in contemplation of concerted rejections which would have the effect
of nullifying the provisions prohibiting slowdowns and other actions which curtail
production .6 The Respondent 's position is obviously sound . Next , the General
Counsel , citing N.L.R.B . v. Insurance Agents' International Union ( Prudential
Ins. Co.), 361 U.S . 477, (1960 ), argues that the employees ' conduct did not con-
stitute a refusal by the Union to bargain in good faith . But that is not the point.
The point is whether the Respondent , faced with employee tactics intended to sub-
stantially decrease production; could lawfully take certain steps to maintain produc-
tion. For instance , prior to the refusals to work voluntary overtime , the practice
had been for the plant to operate on a 4- or 5 -day week and for employees to
perform necessary maintenance on Saturdays as voluntary overtime . With the
cessation of such overtime during the workweek of March 26 , the Respondent re-
duced the production week to 3 days in order that maintenance work could be
4 On May 1, at the bargaining session which preceded the commencement of the strike,
Theriot said to Dickinson : ". . . I don't give a damn about insurance . I'm covered by
Washington National. I want to talk contract."
a The admissions of certain union negotiators during the 1982 bargaining sessions estab-
lish that such pressure tactics had been used by the Union before.
a In addition , upon occasions when the Respondent , seeking to fill temporary vacancies
created by absenteeism , asked employees to transfer to jobs other than their regular ones,
some employees refused. Too , some employees , who were paid incentive rates, slowed
down in their production so as to earn approximately the amounts they were guaranteed
hourly.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
performed during the workweek . On March 29 , in the same letter to employees in
which the Respondent announced the cancellation of the Metropolitan insurance
policy, the Respondent said:.
. our operations have been subjected to a series of slow -downs, refusals
to work overtime, and other harassing actions. One of the most serious of these
actions is refusal of employees to fill vacancies created by absenteeism. Re-
fusing to accept reasonable overtime results in reduced paychecks 'for employees
and further handicaps the plant's operations . These unjustified actions have
forced us to shut down some of our operations , causing a disruption of our
production schedule , and are weakening our ability to service our cus-
tomers. .
To counter these actions , the Company has no alternative but to take steps
which will protect our operations and enable us to meet our production sched-
ules. These steps include requiring qualified employees to upgrade or transfer
to fill vacancies, and to perform essential work for which qualified.
On April 16 , Dickson and Vargon , representing management , met with Zebal
and Ford , representing the Union . Dickson said that orders from customers war-
ranted a full production schedule and that, on the basis of a 5-day workweek,
voluntary overtime would have to be performed on Saturdays . He said too that a
notice to employees would be posted informing them that certain classifications of
employees would be canvassed with respect to whether they would work voluntary
overtime on Saturday , April 21, and that , if they should refuse , work schedules .
would be revised so that a 5 -day workweek for some employees would begin on a
Tuesday and end on a Saturday, thereby assuring that a maintenance force would
be at work on Saturdays . On the next day, April 17, the notice was posted. The
response to it was negative , no employee agreeing to work voluntary overtime, and
on April 18 Vargon so informed Zebal , saying too that the Respondent would revise
the work schedules . On April 19 , a Thursday , the Respondent posted work schedules
for the next week, one schedule for employees to work Monday through Friday
and the second for other employees to work Tuesday through Saturday . On that
Saturday, April 28 , there was a union meeting, and the men who had been scheduled
for work on that day did not work. On May 1, the strike began.
As recited , the expired contract provided that workweeks were to begin on
Mondays. In unilaterally establishing for some employees a workweek to begin
on Tuesdays , the Respondent changed a condition of employment . The Respondent
notified the Union of the prospective change, but did not bargain about it. The
question is whether the Respondent committed an unfair labor practice. At the
outset of this discussion , an established principle should be recited . The em-
ployees, by engaging in concerted slowdowns and refusals to accept overtime
assignments , were engaging in unprotected activities and were subject to disciplinary
action , although , as the General Counsel contends , their conduct was not violative
of Section 8(b)(3). . Raleigh Water Heater Mfg. Co., Inc., 136 NLRB 76; C. G.
Conn , Ltd. v. N.L.R.B., 108 F . 2d 390 (C.A. 7, 1939)? Did the Respondent, in
unilaterally determining work schedules as a countermeasure to the employees'
unprotected activities , go further than the Act allows? The Respondent could
have discharged the employees who engaged in such activities , but such action
would not have been calculated to increase production , which was the Respondent's
aim. On the contrary, such action would have left the Respondent without the
services of needed employees and, possibly , would have brought nearer the strike
which was rapidly approaching . The refusal of the employees to work voluntary
overtime may be characterized , as the court characterized similar refusals in the
Conn case , as an unprotected "strike on the installment plan." I should think that
an employer 's right to seek to operate its plant during such a strike is no less than
during an economic strike in which the employees cease work entirely. I should
think too that where employees are engaged in unprotected slowdowns and re-
fusals to work overtime , designed to hinder production , an employer need not
offer to engage in bargaining , destined to be futile , about work schedules intended
to keep the plant in production . As the Board says in its brief in Hawaii Meat Co.,
Ltd. v. N.L.R.B., 321 F. 2d 397 (C.A. 9) enforcing 139 NLRB 966:
This does not mean that an employer may not , during a strike, temporarily
subcontract the work for the duration of the strike, or that the employer
must bargain with the union about such temporary devices utilized for the
4 The doctrine of the Conn case was approved in International Union , D.A.W., A.F. of L.,
Local 232 v. Wisconsin Employment Relations Board ( Briggs d Stratton Corp. ), 336 U.S.
245, 257 ( 1949).
THE CELOTEX CORPORATION 59
purpose of continuing in operation during a strike. Obviously, as petitioner
points out, bargaining about temporary subcontracting in these circumstances
would be pointless. [Emphasis supplied.]
I hold that the employees' concerted refusals to work voluntary overtime were
contrary to the practice which had been established by the expired contract, and
thus were a unilateral change in working conditions, and that such unilateral change
justified a proper temporary countermeasure by the Respondent, unilateral work
scheduling, as a means of keeping the plant in operation. I find no unfair labor
practice in these actions by the Respondent.
G. Restrictions upon employees' access to plant
During the life of the 1961 contract, and thereafter until March 27, 1962, the
Respondent placed few, if any, restrictions upon the efforts of employees to enter
the plant during hours when they were not scheduled to work. In particular,
union committeemen were permitted to enter the plant during shifts other than
their own. On March 27, however, the Respondent, after first notifying union
representatives of its intent, but not bargaining with them, posted a notice reading:
This is to advise all employees that access to the plant will only be permitted
for regular scheduled shifts or authorized work unless the employee receives
permission from . [certain supervisors].
An employee who has a reason for entering the plant for other than his
scheduled shift or for authorized work shall obtain permission as specified
above.
Access to the plant by persons other than employees will require manage-
ment approval.
The General Counsel asserts that the Respondent, by the unilateral action of
posting the notice, violated Section 8(a)(5) and (1). In support of the conten-
tion, he points in his brief to the testimony of Roy Allemand, a union committee-
man, that after the notice was posted Allemand was denied permission to enter the
plant during a shift other than his own for the purpose of collecting union dues.
Allemand testified also, however, that during the life of the 1961 contract he had
rarely collected dues during working hours, and then only on his own shift, because
there had been a checkoff of dues. Obviously, under the contract, the parties
thereto had not established a condition of employment that union committeemen
could enter the plant for the purpose of collecting dues on company time. Turning
to the Respondent's defense of its posting the notice, it points to the slowdown and
refusals of voluntary overtime then current, and argues that:
The new policy of screening plant visitors was discussed in advance with
[Union Representative] Zebal. It was a proper measure to limit the number
of Union agents then engaged in disrupting production from freely pursuing
destructive tactics at will all over the plant. _
The posting of the notice was not a violation of the Act. It was a reasonable
measure, founded in a desire to maintain production, and prompted by unprotected
activities of employees. Moreover, insofar as the evidence discloses, the notice
resulted in no interference with legitimate union activities s
H. The change in grievance procedure
As recited, on March 8, 1962, the 1961 contract expired and, on March • 23,
negotiations on a new contract were suspended. The contract contained a detailed
procedure for disposing of grievances during the life, and. under the terms, of the
contract. During the latter part of March the Respondent refused to accept griev-
ances according to the procedure under which they had been filed, saying to union
representatives that the contract had expired, and on March 28 the. Respondent
posted a notice in which it said:
Without a Labor Agreement in effect, there is no provision for employee-griev-
ances alleging a contract violation. It is the company's desire, however, to
8 There is testimony by another union committeeman, Horace Temples, who worked the
3-to-11 shift, that one day about 1 o'clock he was denied permission to enter the plant to
file certain grievances with his supervisor, and that consequently he had to wait about
2 hours before filing them. This testimony was received in connection with changes in
grievance procedure, however, rather than in connection with the limitations on access to
the plant, and it is discussed immediately below.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
properly consider employee complaints and the purpose of this notice is to
clearly define the procedure that may 'be followed by an employee who has a
complaint during this period without a Labor Agreement.
There follows a three-step procedure which represents a substantial departure
from the practice which had become customary under the 1961 contract. In
particular, the procedure represents a diminution in the role played by union repre-
sentatives. Unlike certain other unilateral determinations of management, the
new grievance procedure was not necessitated by the employees' unprotected
activities.
The new grievance procedure was established by the Respondent after notice to
the Union but without bargaining thereon.9 The question is whether the Respond-
ent, by unilaterally establishing the procedure, refused to bargain collectively. I
hold that it did. Although the contract had expired and no grievances could arise
under it, the grievance procedure had "provided employees with an orderly and
well-understood method of adjusting their grievances," and the Respondent's
unilateral establishment of a new and different procedure was a change in terms
and conditions of employment "in derogation of the Union's representative status
and a violation of Section 8(a)(5)." Moioresearch Company and Keins Corpora-
tion, 138 NLRB 1490.
I. The suspension of 24 carloaders
On April 4, 1962, the Respondent suspended for a period of 2 weeks a group of
carloaders who are named in Appendix A, attached. The workweek then was of
3 days only, and thus the suspensions were for 6 working days. Before discussing
the events of April 4, reference must be made to the nature of the carloaders'
work and the method of their compensation. The work was extremely difficult
and tiring, and under the 1961 contract the carloaders were free to cease work at
any time during their 8-hour shift. Upon any occasion when the men ceased work
of their own accord, they were compensated at an incentive rate for the work
performed or at an hourly rate for the time worked, whichever was higher. Upon
other occasions when the men loaded all available materials and had nothing
else to do, if they had worked at least 2 hours, or had remained on the job that
long, they were compensated at an incentive rate for the work performed or at an
hourly rate for a full workday, 8 hours, whichever was higher.
On April 3, the 24 carloaders worked somewhat longer than 2 hours when they
were dismissed because there was no more material to be loaded. According to
the practice established under the contract, they were entitled to pay for 8 hours at
the hourly rate, that sum being greater than the incentive rate for the material
loaded. The next morning when they reported for work, they noticed that their time-
cards reflected that they were to be paid at the incentive rate for the work on April 3.
Upon inquiry of management , they were informed that they no longer would be
paid "gift time," i.e., the sum of 8 hours at the hourly rate less the amount earned
at the incentive rate. They protested and refused to work pending a settlement of
their grievance. Upon being directed by management to work, they continued to
refuse. They were suspended, and later that day the period of suspension was fixed
as 2 weeks.
The Respondent asserts that its decision to eliminate "gift time" was made during
March, shortly after the commencement of the employees' unprotected activities,
that it was made because of those activities, and that it was applicable on a plant-
wide basis , not just among the carloaders. Prior to April 4, however, the Respondent
did not notify the Union that it was changing the method of compensation of
employees, and the carloaders were unaware of the matter until that day.1° The
Respondent also asserts , with supporting testimony, that the shortage of work for
the carloaders on April 3 had not been due to a lack of orders from customers, but
to the unprotected activities of employees which had curtailed production so much
o On March 27, the Respondent , after notifying union representatives, posted a notice
outlining a new grievance procedure, but it was supplanted the next day by the notice
mentioned above.
10 The Respondent asserts that on March 28 the carloaders had been dismissed because
of a lack of work and that they had not been paid "gift time." The circumstances on that
.day were different, however. As recited, an employee was not entitled to "gift time" un-
less he remained in the plant for at least 2 hours. This was so in order to afford manage-
ment an opportunity to supply work. As also recited, the carloaders were free to quit
work at any time. On March 28, they finished the available work, but did not remain in
,the plant for 2 hours. Consequently, they were paid only for work performed on that day.
THE CELOTEX CORPORATION 61
that there were insufficient finished products to keep the carloaders busy for an
8-hour day. Finally, the' Respondent argues that the carloaders should have worked
on April 4, simultaneously making use of the new grievance procedure to present
their contention that they were being compensated improperly for their work on
April 3, and that their refusal to work on April 4 was "a form of wildcat strike,"
an unprotected activity for which they properly could be disciplined by suspensions.
The Respondent's defenses are unsound. In changing the carloaders' method of
compensation without first bargaining with the Union, the Respondent unilaterally
changed a term or condition of employment. The Respondent did so in retaliation
for the unprotected activities of some employees. But such reason does not justify
the Respondent's conduct. As held elsewhere herein, employees who engage in
unprotected activities are subject to disciplinary action, such as a suspension or termi-
nation of the employees' services, but a decrease in pay is not a proper disciplinary
measure. So long as the Respondent chose to utilize the employees' services, it
was not free to decided for itself how much it would pay. It was bound to pay
for those services on the usual basis or, at least, to make no change without first
bargaining with the Union. That being so, and because the Respondent, in
changing the carloaders' method of compensation, was not taking a step which was
essential to maintain production in the fact of employees' unprotected activities, the
change was a violation of Section 8(a)(5) and (1)., The carloaders, upon learning
of the change, refused to work pending a settlement of their contention that they
were entitled to 8 hours' pay for their work on April 3. Their refusal was not, as
the Respondent would have it, an enlargement of "their previous slowdown into a
complete refusal-to day any work except on their own terms." It was, instead, a
sudden strike in protest of an unfair labor practice, and the Respondent, upon sus-
pending them, violated Section 8(a)(3) and (1). Moreover, even if the Respondent
were correct in its contention that it did not violate the Act by making the unilateral
change in the method of compensation, I would still find that the carloaders' refusal
to work was an economic strike, not an enlargement of an earlier unprotected
slowdown, so that the suspensions nevertheless would be violative of Section 8(a) (3)
and (1).
J. The strike
The complaint alleges that the strike, which began on May 1, 1962, was caused
and prolonged by the Respondent's unfair labor practices. The record is clear
that those practices contributed substantially to the calling of the strike, and I find
that this allegation has been sustained . Consequently , the striking employees were
not vulnerable to refusals to reinstate them upon application. At the time of the
hearing, no striker had applied for reinstatement, however.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices of the Respondent set forth above, occurring in
connection with the operations of the Respondent described in section 1, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead and have led to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act. The recommendations with
respect to the refusal to bargain collectively are made with recognition of the fact
that, after the close of the hearing, the Respondent and the Union resumed bargain-
ing and reached a complete agreement which will be effective until March 8, 1964.
The recommendations with respect to the 24 carloaders named in Appendix A, all of
whom were reinstated, are that the Respondent make each of them whole for any
loss of pay he may have suffered as a result of the suspension, by payment to him of a
sum of money equal to that which he normally would have earned during the 2-week
suspension, less his net earnings (Crossett Lumber Co., 8 NLRB 440, 497-498)
during said period , with interest at 6 percent per annum on the amount due
(Isis Plumbing & Heating Co., 138 NLRB 716), and that the Respondent preserve
and make available to the Board or its agents, upon request, for examination and
copying, all payroll records, social' security payment records, timecards, personnel
records and reports, and all other records necessary to analyze the amounts of
backpay due. With respect to the rights of the unfair labor practice strikers to
reinstatement upon request, I believe that it is unnecessary to lengthen this document
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by incorporating the Board's usual order concerning reinstatement of unfair labor
practice strikers. This is so because the parties are agreed, as recited above under
"The setting," that with the termination of the strike on July 30, 1962, the plant
resumed full, production. If I am in error in inferring that all strikers returned to
work without unreasonable delay, my inference may be corrected before the Board
or in compliance proceedings. Finally, I do not recommend a broad cease-and-desist
order because the facts recited herein, viewed in the light of the Respondent's long
history of contractual relations with the Union, do not suggest that there is a danger
that the Respondent will commit other unfair labor practices in the future.
Upon the basis of the above findings' of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
.
1. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
2. All hourly rated production, machinist, and maintenance employees at the
Respondent's Marrero plant, excluding guards, supervisors, and all other 'employees,
constitute a unit appropriate for the purposes of collective bargaining.
3. At all times material, the Union has been the exclusive representative of all
employees in such unit for the purposes of collective bargaining.
4. By refusing to bargain collectively, by discouraging membership in a labor
organization through discrimination in employment, and by interfering with, re-
straining, and coercing employees in the exercise of their rights under the Act, the
Respondent has engaged in and is engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(5), (3),, and (1) and Section 2(6)
and (7).
5. In various instances described in section III, above, the allegations of the com-
plaint that the Respondent engaged in unfair labor practices have not been sustained.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
pursuant to Section 10(c) of the Act, I hereby recommend that The Celotex Cor-
poration, Marrero, Louisiana, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to disclose to Oil, Chemical and Atomic Workers International
Union, Local 4-179, AFL-CIO, upon appropriate request therefor during collective-
bargaining negotiations, financial records of the Respondent which said Local is
entitled to see.
(b) Making any changes in the terms and conditions of employment of employees
represented by said Local, without first bargaining with said Local thereon, if the
nature and circumstances of such changes, unilaterally made, would violate the Act.
(c) Discouraging membership in said Local, or in any other labor organization
of its employees, by suspending any of its employees because of their union or
concerted activities, or in any other manner discriminating in regard to their hire
or tenure of employment or any term or condition of employment.
(d) In any like or 'related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Upon request at an appropriate time, furnish to said Local all financial records
of the Respondent which said Local shall be entitled to see.I" .
(b) Make whole the employees named in Appendix A, in the manner set forth
in the section entitled "The Remedy" of the Intermediate Report.
(c) Preserve and, upon request, make available to the Board or its agents all
payroll and other records, as set forth in the section of- the Intermediate Report
entitled "The Remedy."
(d) Post in conspicuous places at its plant in Marrero, Louisiana, including all
places where notices to employees customarily are posted, copies of the attached
n Two comments are appropriate with respect to this provision: (1) A collective labor
agreement is currently in effect, and I do not imply that Local 4-179 is entitled to see
the Respondent's financial records prior to negotiations on a succeeding agreement ; and
(2) the Respondent, in subsequent negotiations, may not demand concessions like those
demanded in the 1962 negotiations, and Local 4-179 may not be entitled to see the finan-
cial records in such subsequent negotiations.
THE CELOTEX CORPORATION 63
notice marked "Appendix B." 12 Copies of said notice, to be furnished by the
Regional Director for the Fifteenth Region, shall, after being duly signed. by the
Respondent's representative, be posted by it immediately upon receipt thereof, and
maintained by it for at least 60 consecutive days thereafter. Reasonable steps shall
be taken by the Respondent to ensure that said notices are not altered, defaced, or
covered by any other material..
(e) Notify said Regional Director, in writing, within 20 days from the receipt of
this Intermediate Report, what steps the Respondent has taken to comply herewith.13
It is further recommended that the complaint be dismissed insofar as it alleges
that the Respondent engaged in unfair labor practices other than those found herein.
>z If this Recommended Order should be adopted by the Board, the words "As ordered
by" shall be substituted for "As recommended by a Trial Examiner of" in the notice. In
the further event that the Board's Order be enforced by a decree of a United States Court
of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an
Order of" shall be inserted immediately following "As ordered by."
13 If this Recommended Order should be adopted by the Board, this provision shall be
modified to read: "Notify said Regional Director, in writing, within 10 days from the date
of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX A
Lawrence Lundgren L. Joseph J. Comminie
Joe Ledet J. Pierre E. Polly
John Duhon P. Smith J. Saul
Jos. Rodrigue E. Green E. Smith, Jr.
M. Lefort E. Bastian A. Boudreaux
J. Landry A. Boudoin J. Plaisance
J. Kramer C. Adams C. Lumas -
H. Plaisance Z. Jackson W. Hunter
APPENDIX B
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board
we are posting this notice to inform our employees of the rights guaranteed them
in the National Labor Relations Act:
WE WILL NOT refuse to disclose to Oil, Chemical and Atomic Workers
International Union, Local 4-179, AFL-CIO, during collective-bargaining
negotiations, any of our financial records which Local 4-179 shall be entitled
to see.
WE WILL NOT make any changes in the terms and conditions of employ-
ment of employees represented by Local 4-179, without first bargaining with
Local 4-179 thereon, if the nature and circumstances of such changes, uni-
laterally made, would violate the National Labor Relations Act.
WE WILL NOT suspend ' any of our employees, or otherwise discriminate
against them, because they engage in union or concerted activities.
WE WILL NOT in any like or related manner violate the rights which our
employees have under the National Labor Relations Act to join a union of
their own choice and to engage in union activities, or not to join a union and
not to engage in such activities.
WE WILL give backpay to the 24 carloaders whom we suspended on April 4,
1962, for a period of 2 weeks.
THE CELOTEX CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered, defaced, or covered by any other material.
If the employees have any questions concerning this notice or whether the
Employer is complying with its provisions, they may communicate with the Labor
Board's Regional Office, Room T6024 Federal Building (Loyola), 701 Loyola Ave-
nue, New Orleans 1.2, Louisiana, Telephone No. 529-2411.
744-670--65-vol. 146-6