The Dow Chemical Co.

National Labor Relations Board - Board Decisions

Nov 4, 1970

186 N.L.R.B. 372 (N.L.R.B. 1970)

372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Dow Chemical Company, Indianapolis Division'
and Oil, Chemical and Atomic Workers Interna-
tional Union, AFL-CIO . Case 25-CA-3476
November 4, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On April 16, 1970, Trial Examiner Phil Saunders
issued his Decision in the above-entitled proceeding,
finding that the Respondent had not engaged in the
unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's
Decision. Thereafter, the General Counsel filed
exceptions to the Trial Examiner's Decision and a
supporting brief, and the Respondent filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
the complaint herein be, and it hereby is, dismissed in
its entirety.
The name of the Respondent appears as amended at the hearing.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PHIL SAUNDERS , Trial Examiner: This proceeding under
Section 10(b) of the National Labor Relations Act, as
amended, was heard in Indianapolis, Indiana , on various
dates in December 1969.1 The complaint was issued
September 30, on a charge filed by the Union on August 6,
against the Dow Chemical Company, Indianapolis
i All dates are 1969 unless specifically stated otherwise.
2 The proper name of the Respondent as amended and corrected at the
trial.
3 All credibility resolutions made herein are based on a composite
Division-herein the Respondent or the Company, and
alleges violations of Section 8(a)(1) and (5) of the Act.
Briefs were filed by both the General Counsel and the
Company.
Upon the entire record in the case and from my
observation of witnesses, I hereby make the following: 3
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent has maintained its principal office and
places of business at Indianapolis , Indiana, and Zionsville,
Indiana , herein called the facility, and is engaged at this
facility and location in the manufacture , sale, and
distribution of pharmaceuticals and related products.
During the past year, a representative period, Respon-
dent, in the course and conduct of its business operations,
purchased, transferred, and delivered to its facility goods
and materials valued in excess of $50 ,000, which were
transported to said facility directly from States other than
the State of Indiana ; and during the past year, in the course
and conduct of its business operations , manufactured, sold,
and distributed at said facility, products valued in excess of
$50,000, which were shipped from said facility directly to
States other than the State of Indiana.
By virtue of the operations set forth above, the
Respondent, at all times material to this proceeding, is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union named in the caption of this Decision, and
herein the OCAW or the Union, is a labor organization
under the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges the Respondent threatened its
employees that they would be permanently replaced if they
refused to return and continued to engage in the unfair
labor practice strike .4 The complaint further alleges the
Respondent failed to bargain in good faith with the Union
by maintaining a fixed purpose and intent not to reach any
agreement, by making unreasonable and adamant contract
proposals, and by refusing to grant existing and longstand-
ing conditions of employment, including checkoff, union
security, and bumping; and that the Respondent threat-
ened to replace striking employees, and bargained individu-
ally with employees.
As pointed out, the Respondent is one of a number of
divisions and plants which operate as a part of the
corporate structure of the Dow Chemical Company. The
corporate headquarters for Dow are in Midland, Michigan.
Dow is organized into five geographic areas and one
department. The five geographic areas are: the United
States Area, the Pacific Area, the Latin American Area, the
European Area, and Dow-Canada. It appears the Life
evaluation of the demeanor of the witnesses and the probabilities of the
evidence as a whole.
* The strike started at midnight on March 17.
186 NLRB No. 58
THE DOW CHEMICAL COMPANY
Sciences Department is organized on a product basis rather
than by geographic area . The Indianapolis
Division-Respondent in this case-is a part of the Life
Sciences Department. The Indianapolis Division includes
Diagnostic Products, Generic Drugs, Human Health
Research and Development, and Rx Pharmaceuticals. Five
separate installations are involved in this operation-a
pharmaceutical manufacturing plant in Indianapolis, a
biological manufacturing plant in Zionsville, a research
laboratory in Zionsville, and two warehousing facilities in
Indianapolis .5
This record shows that the employees of the facility
involved herein, were first represented by a labor organiza-
tion in 1940, and the labor organization was the Pitman-
Moore Employees Independent Union, herein called the
Independent Union. This labor organization continuously
represented the employees in the facility from 1940 to 1968,
and a series of collective-bargaining agreements were in
effect throughout that period of times The most recent of
these agreements was for the period from November 1965
to November 1968.
On November 8, 1968, a Board election was conducted
among Respondent's employees at its facility involved
herein. There were four labor organizations on the
ballot-OCAW, United Mine Workers, the Zionsville
Local of the incumbent Independent Union, and the
Indianapolis Local of the incumbent Union. The election
was won by OCAW, and the Union was certified by the
Board as bargaining representative of Respondent's
employees on November 19, 1969.7
The 1965-68 contract with the Independent Union
expired on November 17, 1968, and, as aforestated, the
OCAW was certified 2 days later.8
Due to the change in the bargaining representative-and
prior to any negotiations with OCAW,9 various administra-
tive problems developed. The problems related primarily to
use of bulletin boards, use of company premises for a union
office, use of company telephones by employees for union
business , an interim grievance procedure and paid time for
employees to handle grievances, and the release of
employees from work in preparations for the upcoming
negotiations.
The General Counsel maintains that Respondent's
conduct during the 2-1/2 month interval between OCAW's
certification and the start of contract negotiations on
February 3, evidenced hostility toward the Union.
Richard Oreson, a chief negotiator and an International
representative for the Union, testified that in early
December 1968 he had two discussions with Charles Carey,
manager of industrial relations for Respondent:
I asked Mr. Carey that it had been brought to our
5 Dow acquired the Indianapolis Division in 1960 Prior to that date,
the Division was the Pitman-Moore Division of Allied Laboratories, Inc
6 GC Exh 9-A to 9-H and Resp Exh 13-A to 13-G
7 The appropriate unit certified was as follows. All employees of
Respondent employed at its Indianapolis and Zionsville , Indiana, plants,
including plant clerical employees, exclusive of all office clerical
employees, salesmen, chemists, bacteriologists , members of the scientific
staff, professional employees , guards, and all supervisors as defined in the
Act.
8 The 1965-68 contract between the Respondent and the Independent
Union contained provisions regulating Respondent's dealings with the
Independent Union (GC Exh 9-H) It provided for participation in
373
attention that the bulletin board privilege had been
taken away, the union offices were being taken away,
the telephones were being taken away, the time
permitted to handle union matters, paid time , was taken
away, the right to have union leave for necessary union
business was taken away, the curtailment of handling
problems in the plant, that is grievances... .
Later in December 1968, Oregon and other representa-
tives of the Union had conferences with Carey and his
assistant Gene Wade. The Union's International Repre-
sentative Richard Watson also had meetings with Carey
and Wade.
The 1965-68 agreement gave the Independent Union the
use of seven bulletin boards at Indianapolis and seven at
the Zionsville plant, and following the certification of the
OCAW the officers of the Independent Union were told
that the bulletin boards were no longer available and the
keys should be returned. However, in late December 1968
or early January, the Respondent and OCAW agreed that
during the interim period OCAW would have the use of
bulletin boards-at least three or four in Indianapolis and
its same number at Zionsville. As soon as this agreement
was reached, the keys to the bulletin boards were turned
over to OCAW.
Several years ago the Independent Union entered into a
written lease agreement with Respondent providing for
office space at the facilities in Zionsville at a monthly rental
of $10. A few years later a second written lease was entered
into between the same parties providing for office space at
the Indianapolis plant at the same rental charge.i° Both
provided for termination by either party on a 15-day notice.
By letter dated November 20, 1968, Respondent notified
both local presidents of the Independent Union that the
leases were being terminated under the 15-day notice
clause, and that the premises were to be vacated by
December 6, 1968.
The matter of office space for OCAW was then raised by
Oreson in conversations with Carey, but plant space was
not made available to the Union and in December 1968 the
OCAW rented outside office space at both Zionsville and
Indianapolis. However, Carey stated that at one of the
meetings during the interim period Oreson told the
Company they had rented space elsewhere and preferred to
have their office space off the Company's premises. The
subject never came up again during the interim meetings of
the parties, and OCAW's contract proposals contained no
reference or request for office space on Respondent's
premises. Ralph Anderson, president of OCAW Local, and
Richard Watson, an OCAW International representative,
were also present at this meeting, and both were called as
handling of grievances by shop stewards , members of the executive
committee, the grievance committee , and the bargaining committee
Members of the last two named committees were granted time off from
work with pay to attend committee meetings, joint management meetings,
and to investigate grievances . Also the secretary or the treasurer at each
location was granted 4 hours paid time per week to handle union
administrative duties Sec 12 of this contract provided for an employee
health and safety committee with paid time for meetings with the
Company. Sec. 15 provided for at least 14 bulletin boards to be used by the
Union for the posting of notices
9 The first contract negotiation session was held on February 3.
10 Resp Exit 9 and 10
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witnesses by General Counsel, but in no way refuted the
testimony of Carey in these respects.
The two union offices mentioned above each contained a
telephone for the use of officers of the Independent Union,
and when the leases were canceled these telephones were
removed from the offices. OCAW then requested they be
permitted to use company telephones, and in one of the
interim conferences between the parties the Respondent
mentioned the acuteness of their telephone situation.11
However, as Oreson admitted in his testimony, Carey then
agreed that officers of OCAW could use company
telephones for union business.
The 1965-68 contract with the Independent Union
contained a grievance procedure, and following certifica-
tion, OCAW requested that the parties negotiate an interim
grievance procedure. An interim grievance procedure was
then discussed at meetings held by the parties, and on
January 20 an interim grievance procedure was agreed to
and signed by the parties. A number of grievances were
thereafter processed under this interim procedure.12
It also appears that under the 1965-68 contract, members
of the grievance committee and others were permitted time
off from work with pay to investigate grievances and to
attend grievance meetings. By letter dated January 31, the
Company made it known that during the interim period no
union official would be released for union business unless
arrangements were first made with his supervisor, but that
stewards would be released from their jobs with pay to
investigate grievances provided certain conditions were
met.13 This record also reveals that in certain instances
OCAW stewards were given time off with pay to attend
grievance meetings with management.14 The Union further
asked that during the interim period, OCAW officers be
released from work without pay to attend to union business
matters , and this was agreed to. During the interim period,
November 19, 1968, to February 2, 1969, there were 54
instances in which Respondent excused OCAW officers
from work at the request of the Union, and in their
preparation for the upcoming contract negotiations.15
The first contract bargaining meeting was held on
11 It appears the plants developed an overload telephone problem in the
summer of 1968, and the Company was using the maximum number of
extensions possible . In order to secure more extensions , the Company
would have been required to install a new type of telephone equipment
amounting to $250,000. In June 1968 the employees of the Company were
advised in writing of the seriousness of the telephone problem and were
requested to assist by eliminating or curtailing personal calls. See Resp.
Exh. 11.
12 Resp . Exh. 5A-51.
13 See Resp. Exh. 8.
14 At one of the interim meetings it was agreed between the parties that
if the Company would pay the cost of the motel room to be used for
bargaining meetings, the Union would pay for its own committee's
bargaining time.
15 In efforts to show that there were "sharp" limitations on the Union's
use of facilities in comparison to the "liberal" granting of company
facilities to the old Independent Union , the General Counsel presented
testimony through several witnesses . Orvil Smithey, president of the former
Independent Union at Indianapolis, testified as to various facilities in their
plant office-that he could use the office any time he wanted , that there
were no restrictions on his use of the office telephone , that prior to the
advent of OCAW the stewards were allowed to "roam" in all departments
to handle grievances, and that both officers and stewards of the
Independent Union were paid for handling grievance matters . In 1968,
Robert Wilhite was president of the Independent Union Local at Zionsville
and prior had been steward and on the executive committee . He stated that
February 3. Chief spokesman for Respondent at this
meeting was Attorney Owen Neighbours, and chief
spokesman for the Union was International Representative
Richard Oreson. He acted as chief spokesman for OCAW
through the bargaining meeting held June 13. Thereafter,
International Representative Richard Watson acted as the
union spokesman-16
At the meeting on February 3, there was a discussion on
the interim grievance procedure and then the Union
presented its initial proposal-General Counsel's Exhibit
12-A. Included in this proposal were requests for a union
shop, checkoff, and under certain circumstances the
bumping of employees.17 Neighbours testified that the
Union's initial proposal was a complete departure from the
1965-68 contract with the Independent Union, and that
only two clauses were identical with the 1965-68 contract.
The OCAW proposal did not contain any equivalent
clauses for three clauses that were in the 1965
contract-management rights, no-strike clause, and arbi-
tration. The 1965-68 contract had a limited clause on
bumping, and its checkoff clause was on a weekly basis.
At the start of the second meeting on February 24-the
parties again discussed the interim grievance procedure as
it related to the number of union representatives who would
be permitted to investigate a grievance. The Union
submitted a written proposal on overtime distribution to
supplement its original proposal.ls Respondent then
presented its first written contract proposal.19 The parties
reviewed the main points of difference between the union
and company proposals. At this meeting Neighbours stated
that the Company was opposed to both proposals on union
shop and checkoff. He then informed the Union that
checkoff was not granted to the old Independent Union in
its first contracts, and while he was not precluding it from
future contracts, the Company felt there should be a get-
acquainted period before it granted any membership or
checkoff clauses.
The third meeting took place on February 27. At the start
of the meeting the Union handed out material on the
apprenticeship program. The Company agreed to consider
under the old Independent Union officers were permitted to use the plant
office 3 days a week , that he used the telephone freely , that the executive
committee met on Respondent's premises and on company time . Wilhite
testified that after OCAW was certified his telephone privilege in
conducting union business was curtailed , and the executive committee
meetings could not be held on company time. James Wethington and
Virginia Merriott generally reiterated the testimony given by Wilhite and
Smithey.
16 There is no contention that Respondent violated its bargaining
obligations by a failure to meet at reasonable times and places with
OCAW, and testimony shows that meeting dates were set at the
convenience of both parties and that bargaining meetings were generally
held at frequent intervals throughout the period of negotiations. The
Company kept written minutes for each of the bargaining sessions which
were introduced into evidence at the hearing . GC Exh. 18-A to 18-KK.
These minutes do not purport to be a verbatim transcript, but do represent
an accurate summary of the positions taken , arguments , and verbal
proposals of the parties . The exhibits in this record also contain the written
proposals and counterproposals of the parties.
17 After the Union was certified , Oreson requested certain company
records and other information in order to prepare for negotiations, and by
February 3 the Union had received practically all the material it had
requested.
18 GC Exh. 12-B.
19 GC Exh. I1-A.
THE DOW CHEMICAL COMPANY 375
it and report back at a later date. The parties then began a
discussion on their two basic proposals, and the preamble
clause was considered agreed to. Recognition clauses of
both proposals were also discussed.20 The Company
objected to the 40-mile provision, and pointing out that
Board law regulates the issue of whether a new plant is an
accretion to an existing unit with the Union automatically
entitled to recognition, or whether the new plant is not an
accretion with the result that the Union must prove its
majority status before being entitled to recognition. The
Union then agreed to set this matter aside for the time
being. Section 2 of the Union proposal purported to define
employees of the bargaining unit. The Company objected
to the definition for the reason that it was different from the
description of the bargaining unit as contained in the
certification. The Union agreed to talk about this matter at
a later time .. Under the Union's proposal the Company
would be obligated to print, and pay for, copies of the
contract and the OCAW bylaws to be distributed to
employees. The Company stated it was unwilling to assume
the full cost, but would share the expenses. The Company
then presented its proposal on discrimination and it
provided-in part-that the Union likewise would not
discriminate against its members. Oreson objected to such a
provision and fully stated his reasons for doing so.
Neighbours informed the Union that the Respondent's
management rights clause was taken from the 1965-68
contract with the Independent Union. On union shop
Neighbours again pointed out the Company was not taking
the position it would not agree to union shop in the future,
but that the Company felt the employees should have a
chance to get acquainted with the Union. In relationship to
checkoff, the Company repeated that such a procedure
tends to make people forget that they are paying dues
because of automatic deductions and there should be a get-
acquainted period. The last major item discussed at this
meeting was the grievance procedure. Under the company
proposal the ultimate method for resolving a dispute was
resort to the courts, whereas the union proposal left the
ultimate end open. The parties then attempted to reach
agreement on the procedural steps of the grievance
procedure, and Oreson verbally presented a counterpropo-
sal on the steps of the grievance procedure. The Company
agreed to consider this proposal and discuss it later on.
At the beginning of the fourth meeting on March 6, the
Company presented a counterproposal on the grievance
procedure.21 The parties had differences as to the initial
filing of a grievance and at what steps the steward-
supervisor and International representative would enter.
The Company agreed to the Union's request that working
days be defined as "days exclusive of Saturday, Sunday and
holidays," and the Company also agreed that certain
grievance steps could be waived. The Union agreed to
remove "age" from its recognition clause proposal.
At the meeting on March 13 the Company handed out
write-ups on the grievance procedure, and considerable
time was spent discussing grievance procedure and
arbitration.22 No agreements were reached. The parties also
discussed clauses on intent and purpose, recognition, union
security, checkoff, management rights, overtime, and
probationary period. The Union passed out a copy of a
proposed grievance form. The Company again repeated its
opposition to a union-security clause in the initial contract
with OCAW. The Union then mentioned an agency shop
provision for consideration.
At the sixth meeting on March 14 there were further
discussions on the matter of grievances and attempts were
made to reach an accord on the number of steps to be
included in the grievance procedure. The parties then
turned their attention to the proposals dealing with
seniority. The Union presented a pay level sheet on
unskilled, semiskilled, and skilled workers and various
discussions ensued concerning the same. Later on during
the day, the Union presented a revised pay level proposal to
correct certain discrepancies earlier pointed out to them.
The Company presented a counterproposal on its own
seniority proposal. The Respondent proposal was that the
length of the probationary period be reduced from 180
days, as set forth in its original proposal, to 90 days. The
Union agreed to take this under advisement. Watson was
then questioned on the Union proposal on temporary and
semipermanent jobs.23
The negotiating meeting on March 17 started with a
discussion on the Union's proposal relative to bumping.24
In the ;interchanging of remarks which followed, Neigh-
bours stated that the Union was balancing employee choice
against company efficiency; that movement of people is
inefficient because employees are taken off a job he is
familiar with and someone else must be trained; that the
Company was interested in minimizing the amount of
movement among employees; that bumping at layoff
time-under the Union's proposal-would allow an
employee to choose where he would go; that the
Respondent's proposal would be much more efficient, and
that the Company was willing to recognize seniority in such
things as promotion, but in the displacement of employees
they had to be efficient. Neighbours explained that under
the company proposal-when the Company had a
reduction in the work force-they would take out the least
senior employee. Neighbours also pointed out that the
Company did not like the limited bumping procedure
contained in the 1965-68 contract, and that the OCAW
bumping proposal was far broader in scope. During the
afternoon session the Union handed out a written
counterproposal providing for arbitration of all disputes
except those involving production standards and safety and
health.25 This involved step 4 procedure of any grievance
not settled in accordance with step 3, and a panel would be
requested from the Federal Mediation and Conciliation
Services and an arbitrator would be selected from such a
panel or list. The Company agreed to consider this
counterproposal and to comment on it at the next meeting.
20 The union proposal provided that the Company would be obligated
to recognize the Union as bargaining representative at any new plant
established within a radius of 40 miles of any present location.
21 GC Exh. I l-b.
22 The Union continued to maintain that the steward must be present at
the first stage of the grievance procedure.
23 See GC Exhs. I1-e and D and 128-1 and C.
24 During the negotiations and prior thereto, the Company made
mention of a possible closing of the Indianapolis installations , and in such
event the Union wanted these employees transferred to the nearby
Zionsville plants.
25 GC Exh. 12-D.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union then presented a verbal proposal on probation-
ary period. The Union stated that it would accept the
Company's latest proposal of a 90-day probationary period
providing the Company would delete its paragraph on
temporary employees, and the Company agreed to consider
it. After a recess Neighbours reported the Company would
agree to the Union's request that the temporary employee
paragraph be deleted, and also stated the probationary
period clause now appeared agreed to and the Company
would rewrite the clause before the next meeting.
Neighbours also asked the Union whether it objected to
using the American Arbitration Association rather than
Federal Mediation as a source for arbitration lists, and
Watson stated the Union used both of them in their
contracts. About 4:30 p.m. the parties reconvened and at
this time Watson announced that the parties were "miles
and miles apart"; that he felt the parties should sit every
day until a contract was reached; that the Union was
willing "to stay here tonight" to get an agreement, but if
they could not reach h-a contract by midnight the employees
would go out on strike. As aforestated, the strike began at
midnight, and is still continuing.
After the commencement of the strike, the Federal
Mediation and Conciliation Service was contacted by the
parties. Negotiating sessions were then scheduled for
March 31, April 22, and May 2 and 15. At the meeting on
April 22 the intent and purpose clause was discussed and
the parties encountered difficulties in the proposal change
of one word. The Union wanted the word "entire" changed
to "basic"-and the Company countered with the word
"complete." They also discussed the recognition and the
nondiscrimination clauses. On May 2, the grievance
procedure was brought up and the Union proposed that if
the Company gave them the right to have a steward in the
first step, and if the Company would drop their demands of
final recourse to courts and substitute an arbitration clause
with finality-then the Union would agree to a typical no-
strike, no-lockout clause for the life of the contract. The
meeting on May 15 was between the Federal mediator and
the Company. By this time the Company had taken the
position that they had given into the Union in their demand
for a steward at the first step in the grievance procedure
with the understanding that there would be no option at the
prestep. The Company still wanted a final recourse to the
courts instead of finality in an arbitration clause.
At the meeting on June 4 the Union informed the
Company that under leaves of absence they would go back
to the old agreement provisions of the Independent Union
with one addition-and that would be a union business
clause. The Company indicated their general agreement
with the above, but asked the Union to be more specific as
to what was included under union business. Oreson then
named the yearly conventions and educational schools held
by the Union. Oreson also suggested the old agreement
language on call-in and report-in pay but with double time
for work on Sundays and holidays instead of time and one-
half. Other aspects of overtime were then proposed by the
Union and discussed by all parties. The Company agreed to
the union business clause proposal, but no educational
leaves-and agreed to 4 hours off per week to the Union's
secretary-treasurer.
On June 13 the Company presented its draft on leaves of
absence and call-in pay,26 and the parties had additional
talks on other aspects of this subject matter. Discussions
were also had on overtime ,27 shift starting times, bulletin
boards, and safety and health. The Union suggested the
clauses in the 1965-68 contract for the latter two subject
matters.
At the session on June 20 the Company submitted
another draft on leaves of absence and, with a few items to
be clarified, the parties reached a limited accord on this
matter. The Union agreed to the Respondent's counterpro-
posals, as aforestated, on bulletin boards,28 and on health
and safety. The Union requested that the Company put its
verbal vacation plan in a memorandum after the Company
stated its vacation proposal would be similar to the one
used in the past. There were also some further discussions
on overtime, grievances, and possible arbitration proce-
dures. Oreson stated the Union could agree for employees
to take their grievances up with supervisors without a
steward present at the initial step-if the Company would
forsake its proposal for court decisions in the final
determinations of grievances.
For the most part the meeting on June 24 was concerned
with discussions on the various proposals as relating to the
grievance procedure. Some aspects of vacations were also
brought up,29 and in seeking additional information for
clarity the Union asked some questions on the subject
matter of seniority.
On July 1 the Union presented a counterproposal on
seniority.30 Watson stated that this counterproposal
entailed 85 percent of the Company's clauses including
parts of the old contract, and that they had "gutted" the
original proposal in an effort to reach an agreement with
the Company.
On July 9 the parties spent virtually all of the session on
the seniority proposals, and mutual agreements were
reached on several of the sections. On July 10 further
discussions were had on seniority proposals and a few
additional agreements were made with concessions by both
sides. At this meeting the Company passed out copies of the
agreed-upon contract provisions as of July 9 .31
At the session on July 16 the Company presented a
revised draft setting forth seniority proposals which had
been previously agreed on or partially so, and in discussions
that followed a few additional agreements were made.
Watson then informed the Company that three items were
keeping them apart on seniority-the necessity for more
transfers, more applications per year, and the need for some
form of bumping privileges. On July 17 the parties reached
full accord on pages one and two of the Company's revised
draft on seniority, and further talks produced subsequent
accords in several other areas. The Company once again
explained the reasons for its opposition to bumping. At this
26 GC Exh. I I E. 30 GC Exh. 12-E.
27 The Company did not want to pay Saturday and Sunday overtime if 31 See GC Exh . 11-h. This exhibit shows agreements on recognition,
an employee was off during the week . grievance procedures, leave of absence , bulletin boards , and accord on
28 GC Exh. I1 -F. several sections of the seniority proposals.
29 GC Exh. I IG.
THE DOW CHEMICAL COMPANY 377
meeting Watson informed the Company that the Union
would accept their management-rights clause.32
Provisions relating to hours of work was agreed to on July
24 and many of the sections and terms in respect to
vacations were also agreed to. By this time the Union was
asking for an agency shop and continuing their request for
checkoff, and the Company again explained why it was
opposed to these items as aforestated.
The meeting on July 29 consisted for the most part of
further discussions on bumping and overtime under the
seniority proposals. On August 8 and 22 Watson stated that
bumping was the most important issue remaining and that
he was asking for a limited bumping procedure as
contained in the old contract.
The parties held two meetings in September, but very
little was accomplished. At the session on September 22
some progress was made on proposals pertaining to the
question of when supervisors could work, and Watson
informed Neighbours that the Union would be agreeable to
the Company's supervisors working clause if they would
add the words "or until an absent or tardy employee can be
replaced." On October 1 the Company agreed to the
supervisors working provisions and accepted the suggestion
by the Union for the additional words as indicated above.
At the October 15 meeting, the Union presented in
written form a package deal for a settlement of the
outstanding contract issues and this package also included
for the first time the Union's economic proposals.33 On
October 21 the Company discussed the Union's package
proposal-other than economic matters-and a few minor
accords were registered on the seniority provisions. On
October 29 and 30 the Company and the Union pointed out
some differences still existing between them on the subject
matters of overtime , holiday pay, report-in-pay, applica-
tions, leaves of absence, vacations, and duration of the
contract. Accords were reached on a no-strike clause, time
and one-half for employees on occasions when they are
called in for work, and the making of a quarterly seniority
list.
On November 4 the Company presented its economic
package proposal.34 Neighbours stated that this was a
proposal to settle all the money matters and was not to be
accepted piecemeal. On November 11 Watson stated he
was disappointed with the Company's 10 cents an hour pay
raise proposal since the Union had asked for 30 cents an
hour. They agreed to the vacation proposal by the
Company, and dropped their demand for double time after
12 hours of work. There was also discussion on the pension
or retirement plan proposal. At the session on November
13, a good deal of the morning was spent in questions and
answers relative to the Company's pension plan and
various credits the employees would receive from the
previous profit-sharing plan. Watson stated that the
pension proposal was a very good plan. The Company
agreed on the Union's shift premium pay provision and
$6.00 for safety shoes.
The parties again met on November 17 and Watson
named the economic and noneconomic matters still in
issue. Neighbours repeated that the Company was not
going to be agreeable to an agency shop clause, nor to
returning strikers displacing replacement employees hired
during the strike. At the conclusion of this meeting the
parties were in accord that there were 9 or 10 remaining
contract provisions still in issue.35
35 Union Position
Agency shop An agency shop clause
Check-off A check-off clause
Overtime distribution Overtime to be dis-
tributed equally by hours
Bumping A bumping clause much
broader than the one
contained in the 1965
contract
Promotion (how long 3 months
must an employee
wait after being
promoted before he
may apply for another
promotion)
Company Position
No clause
No clause
Overtime to be
distributed
equally by turn
No clause
6 months
32 See GC Exh. I 1-i and 12-f. 34 GC Exh. I In.
33 GC Exh. 12G.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 26 the Company presented their settle-
ment proposal.36 The Company increased its general wage
increase offer from 10 to 13 cents per hour, and also offered
additional increases for skilled employees of 5 to 15 cents
per hour: On the two items of amount of and exceptions to
premium pay for Sundays and holidays, the Company
agreed to double time for Sundays and holidays if the
Union would agree to a continuous operation exception to
premium pay for holidays.
The Company proposed an excuse provision for holiday
eligibility requirements in line with the Union's request. In
addition, the Company proposed a dues collection table in
each cafeteria as an alternative to checkoff, and on
promotions, the Company agreed to the Union's request of
a 3-month waiting period.
The last regular negotiating meeting was held on
November 28. At this session the parties initially discussed
the return of strikers. By letter to the Company dated
November 26, the Union had proposed that all striking
Wages (including General wage increase
effective date of the 25 cents an hour--no
increase) position on effective
employees be reinstated, and that the Company should
consider this proposal as an unconditional offer to return
all striking employees.37 On November 28-Watson stated,
"The Union vigorously objects to the Company contacting
each employee, and therefore, negotiating on an individual
basis other than dealing with the Union." The Union then
responded to the Company's written settlement proposal
presented at the previous meeting. The Union accepted the
Company's proposals on amount of premium pay for
Sundays and holidays, excuses for holiday eligibility, and
pWomotion waiting time. The Union rejected the Company's
general wage increase offer of 13 cents per hour, but
accepted the Company's offer on graduated increases for
skilled employees. The Union rejected the dues table
collection alternative to checkoff, and refused to agree to
the continuous operation exception to holiday premium
pay. After a short recess, the Company returned and
offered to increase its general wage increase offer to 15
cents per hour, 10 cents of which would be retroactive to
of General wage
increase of 10
date cents an hour---
retroactive to
February 3
Holiday eligibility Should be some excuses No clauses
(excuse from day before recognized but Union did
and day after requirement not specify which ones
for certain kinds of
absences)
Amount of premium pay Double time
for Sundays and holidays
Exception to premium No exceptions unless
pay for Saturday and Company agreed to union
Sunday position on above
Time and one-
half
A no-absence
exception (an
employee absent
during the week
for any reason
other than
Company scheduling
not entitled to
premium pay for
Saturday or
Sunday)
There was also a noncontract item at issue. This was the damand that the
Company would have paid to its insurance carrier in premiums for employees
had the employees been at work rather than on strike. This noncontract item
was dropped by the Union at the November 28 meeting.
36 GC Exh. I Ip. 37 GC Exh. 12h.
THE DOW CHEMICAL COMPANY
February 3, and the Company agreed to a checkoff clause
on a monthly basis as proposed by the Union. Watson
stated that the parties were still apart on return of strikers,
wages, bumping, agency shop, overtime distribution, and
the seven days continuous operation procedure as outlined
in the Company's proposal of November 26. Near the
conclusion of this meeting the Company asked for another
recess , and on returning told the Union the Company
would agree either to the overtime provisions in the 1965
contract (time and one-half but no continuous operation
exception), or to its proposal of double time with a
continuous operation exception. The Company informed
the Union this was its final proposal, and the meeting ended
with the Union's statement that it had no change in its
position.
General Counsel takes the position that Respondent does
not operate as an independent and autonomous unit of
parent corporation in labor relations matters, but rather
that the course and content of the negotiations was
controlled by Dow. General Counsel introduced into this
record collective-bargaining agreements in effect at the
numerous plants of Dow in the United States and
Canada,38 and also subpoened several Dow officials from
Midland, Michigan, in an effort to support this theory.
Max Key testified that at present he is director of
corporate administration, but in the periods relative hereto
was director of corporate industrial relations. Key admitted
he was aware of the negotiations at Indianapolis in 1969,
and during 1969 visited many Dow plants in the United
States including the Indianapolis division. Key testified his
old office of corporate industrial relations functioned solely
in an advisory capacity to the industrial relations directors
of the Dow plants and furnished services only if requested
to do so. He stated that no one in his office participated in
any way in the preparation of proposals or the negotiations
in this case. Key testified that since reorganization of the
corporate structure during the last quarter of 1968, labor
relations is not a corporate Dow responsibility and that all
decisions concerning collective-bargaining negotiations are
made by local management at each location and that this
was so even prior to the 1968 reorganization. Key's salary is
in excess of $75,000.
James Hanes has been director of industrial relations for
the U.S. area of Dow for about 1 year. Prior to his present
job, Hanes was corporate director of labor relations and
merely served in an advisory capacity on request from the
various divisions of Dow, and has no direct responsibility
or authority over them. Hanes acknowledged that he knew
of the Union's organizational efforts at the Indianapolis
Division, that he talked with Carey about it, and in the
early summer of 1968 had made a visit to Indianapolis. He
further acknowledged that copies of the numerous and
different bargaining contracts with Dow, as aforestated, are
kept in his office in Midland. Hanes testified that the final
decisions on economic matters are made by local
representatives of the Company, and that he merely
attempts to keep track of developments on a nationwide
33 G.C. Exhs. 10A through 10FF. Many of these contracts contained
provisions giving union shops or agency shops, granting checkoffs in
several instances ; and some of these bargaining agreements also contained
379
basis and then passes this information on to the divisions.
Hanes is paid about $34,000 a year.
Carl Carlson is the assistant director of labor relations for
the U.S. area and has his office in Midland. Prior to the
start of negotiations he was requested by Respondent to
furnish certain information. Carlson was then invited by
Charles Carey, director of industrial relations for Respon-
dent, to attend the bargaining meetings and did so. Carlson
stated he did not participate in any of the decisions
concerning the Company's contract proposals or the
negotiations, that the Company has no labor relations
policies as such-and each location is autonomous, that
while he discussed the negotiations with Hanes, he was
never given any instructions pertaining to the Indianapolis
negotiations, that Carey made the decisions as to the
content of the various proposals by the Company, and that
Neighbours prepared the proposals. Carlson receives
$20,000 a year for his services.
The complaint alleges Respondent violated the Act by
threatening to permanently replace striking employees,
soliciting employees to return to work, and bargaining
individually with employees. This record shows that
Respondent mailed letters to all bargaining unit employees
on May 19 and July 28.39 The May 19 letter summarized
the reasons for the strike and the issues, and also stated that
the Union's proposals were unreasonable and represented a
complete departure from what had been in effect and that
the Company did not intend to sign a contract which placed
unreasonable demands on the Company. This May 19
letter further pointed out that the plant was continuing to
operate and that several employees had decided to return to
work, stating "This is their right as well as yours and it is
protected by law." The Company then commented on
certain rumors and closed by stating that at the present
time jobs remained available if employees exercised their
right to return to work.
The July 28 letter summarized the status of negotiations
to this point and again pointed out that the Company was
continuing to operate during the strike. The letter states,
"Not only does the Company have a legal right to operate,
but employees have the right to work if they wish just as
those who wish to strike peacefully have a right to do so."
The Company stated it was hiring permanent employees,
and that, "under the law, the Company has a right to hire a
new employee to do your job and when the strike is over the
Company is not required to discharge the new employee in
order to take you back." The Company then pointed out
that at the present time the jobs of most strikers were still
open, but the Company could not promise this situation
would continue because the Company intended "to see that
our work continues to be taken care of."
Lonnie Wingo testified that on or about August 25,
Supervisor Ed Mathews told him that if he wanted his old
job he would have to "beat it back" because the Company
was hiring men to replace the strikers, and the department
in which Wingo worked would soon be filled.
The complaint, as amended, alleges that on or about
November 17 the company negotiator threatened employ-
provisions relating to bumping in regards to employee promotions, layoffs,
and reduction in force.
39 G.C. Exhs. 5 and 16.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ees they would be permanently replaced if they refused to
return to work, and continued to engage in the unfair labor
practice strike. At the November 17 session the Company
advised the Union it was not agreeable to the return of
strikers to displace replacements and this matter was then
more fully discussed in the November 26 meeting during
which Respondent handed out a written statement of its
position.40 The Respondent's position was that no strikers
had been terminated, and the Company would immediately
reinstate all strikers for whom there presently were
available jobs, but the Company would not release
permanent replacements. However, those strikers for whom
jobs were not presently available would be recalled as jobs
became available.
In making my final conclusions, I will turn first to the
interim period from November 19, 1968, to February 3. The
General Counsel argues that the Respondent's disparate
treatment to the Union compared to the privilege enjoyed
by the old Independent Union, aforestated, shows that the
Company was not giving to permit the Union to operate at
its Indianapolis and Zionsville plants. It has been clearly
established that with the advent of a new and legally
selected bargaining representative-the employer has the
obligation to treat with the new representative and no other
and for nondiscriminatory reasons may abrogate a part or
all of the prior agreement with the deposed bargaining
representative. However, although an employer's contractu-
al obligations may expire under such circumstances,
nevertheless, if the employees are represented by a
bargaining agent, the existing terms and conditions of
employment-that is, matters pertaining to the relationship
between an employer and his employees, as distinguished
from matters pertaining to the relationship between an
employer and a union, must not be unilaterally changed
and must be continued by the employer until bargaining
thereon has culminated in an agreement or in an impasse.
In the instant case, the matters of items in question were
taken away from the Independent Union and from the
officers of the Independent Union. Furthermore, OCAW
did not elect its new officers until December 20, 1968, and
election for OCAW stewards were still going on in January.
It was not until January 6 when the Company was officially
notified who the new officers were and it was not until
January 22 when the Company was advised as to the
OCAW stewards. Therefore, as a result of OCAW's delay
in its internal structuring-the Company did not know for
some time to whom to accord the contractual privileges
contained in the 1965-68 contract.41 But regardless of the
nicety in the above, the interim conduct on the part of the
Company was presented to fill in the total bearing on the
8(a)(5) allegations and, in the final analysis, the Respon-
dent advised OCAW, that it was willing to negotiate with it
on interim problems that developed and the Respondent
did in fact negotiate with OCAW concerning these interim
problems, and such matters were pretty much resolved to
the satisfaction of everyone concerned, as previously
40 Resp. Exh. 14.
41 General Counsel also elicited testimony that in 1968 Respondent held
monthly meetings with the Independent Union's executive committee and
the Independent Union's health and safety committee, but that after the
certification of OCAW no such meetings were ever held. However, there is
no evidence in the record to show that OCAW ever elected an executive
detailed herein . The OCAW secured bulletin boards, was
granted the use of company telephones for union business,
received time off for officers and stewards of OCAW, and
negotiated an interim grievance procedure.
In view of the above it appears to me the General
Counsel has failed to prove that Respondent engaged in
conduct evidencing hostility toward OCAW during the 2-
1/2 month interim period between OCAW's certification
and the start of contract negotiations . Furthermore,
Respondent promptly furnished documents and data
requested by OCAW for use in contract negotiations, and
the Company was ready and willing to commence contract
negotiations after OCAW's certification and informed the
Union of this on several occasions , both verbally and in
writing.
The evidence in this record reveals that Respondent
operated as a separate and autonomous unit in the conduct
of labor relations at its facilities in Zionsville and
Indianapolis . As pointed out, the credited testimony of the
witnesses successfully refutes the theory of General
Counsel that Dow has a centralized labor policy, and that
Dow controls decisions concerning collective-bargaining
negotiations at its plants . Decisions concerning company
contract proposals and bargaining issues were made by
Carey, after consultations with Neighbours and a commit-
tee composed of Carey's staff, and also with the general
manager's staff committee which consisted of the general
manager and major department heads of Respondent.
During the summer of 1969 Key and Hanes were given
some information on the status of the situation in
Indianapolis , but there is no evidence that Key or Hanes
gave any instructions as to the negotiations and the
contract issues involved , or that Carlson was called on for
any decisions during the contract negotiations . In its brief
the Respondent argues as follows : "General Counsel's own
documentary evidence constitutes a further refutation to
his theory. Thirty-one contracts from other locations of
Dow are in evidence . . . . A review of these contracts
reveals a wide divergence in terms and conditions of
employment at the various locations . If General Counsel's
theory of standardized policies and centralized control were
correct , these 31 contracts would read the same . They do
not." I am in accord with Respondent's summary as to the
other contracts with Dow. Carey stated that since
September, he had talked to Hanes on three occasions, and
at such time Hanes told him that high ranking officials of
OCAW had suggested to Hanes a meeting between the
Union and the Company . Carey replied he was not willing
to have such a meeting, and informed Hanes he would
continue to handle the negotiations on a local level. This
testimony stands undenied as no official of the Union
stated otherwise, and this evidence lends additional weight
to the Respondent 's evidence that local people had the
determining say-so 42
Turning now to the specific negotiation sessions and the
allegations that the Company negotiated in bad faith: The
committee or health and safety committee, or that OCAW ever requested
that such meetings be held.
42 J. M . Leathers is U.S . operations director for Dow, and the General
Counsel produced testimony that Leathers has spoken to management
people of Dow on the subject of labor relations and wherein Carl Carlson
was one of those present . However, I am unable to draw inferences that
THE DOW CHEMICAL COMPANY
law is clear that negotiations carved on in good faith, where
there has been an open exchange of ideas, proposals, and
counterproposals and an indication of willingness to
compromise, cannot be found to be violative of Section
8(a)(5) of the Act simply because on some of the issues,
even though they may be crucial, one or the other of the
parties has been unwilling to recede from its position so as
to yield to the contentions or demands of the other. The
record in this proceeding of the negotiations and the
proposals by the Respondent, its availability and participa-
tion in 38 negotiating sessions since the Union was
certified, and its willingness to sign an agreement, establish
that the Respondent's conduct in the course of these
dealings was in keeping with the spirit of the Act.
The record here further clearly demonstrates that each
item in the various proposals, was, at one time or another,
openly discussed, and that full agreements were reached on
several clauses. Partial agreements, in one phase or another,
were also reached on numerous proposals. In several
instances during the negotiations the Union adopted the
proposals of the Company, but in other instances the
Company accepted modifications.
Prior to the certification of OCAW the Company had a
bargaining relationship with the Independent Union for
many years and a series of agreements had been in effect
between them throughout this period of time, and the
1965-68 bargaining agreement had expired only 2 days
before OCAW was certified. The initial OCAW proposal
on February 3 represented a departure from these prior
agreements, and a great many provisions contained in the
OCAW proposal were either substantially different from
provisions in the prior contract or were new clauses for
which there had been no equivalent provision. Moreover,
the OCAW proposal omitted any reference to management
rights, a no-strike clause, and arbitration.
Seven bargaining meetings were held prior to the strike.
The first two meetings were taken up primarily with the
presentation and explanation of the Union and Company
initial proposals and during the next five meetings there
was considerable discussion of these proposals, as afores-
tated. During this period the parties agreed to the definition
of working days, and the Company agreed that certain
steps could be waived in the grievance proposal and also
agreed to a probationary period more favorable to the
Union. However, late on the afternoon of March 17,
Watson let it be known that the Union was willing to
continue the session that evening, but unless an agreement
was reached by midnight, a strike would begin. Neighbours
testified without contradiction that it would have been
impossible for the parties to have worked out an agreement
by midnight, as the major contract items were still
unresolved, and it had been suggested and agreed earlier in
negotiations that economic matters be postponed pending
this happening had any impact on the particular negotiations involved
here , and all the testimony is to the contrary
43 Watson testified that subsequent to June 20 the Union used the
format proposals of the Company, and on clauses pertaining to
recognition, management rights, adjustments of grievances, and others he
largely adopted the Respondent's proposals in order to reach a contract
He then went on to mention provisions or proposals the Union had to
drop However, some of the items Watson testified to as "dropped" by the
Union involved items on which the Union never presented a specific
381
developments on noneconomic matters and at the time the
Union had not even presented its economic demands. I am
not persuaded on this record that the Company had
precluded bargaining on any of the major contract issues
including union security, and checkoff. At no time did
Neighbours ever tell the Union that the Company would
never grant such clauses, but did inform the Union that the
Respondent was opposed to them and then stated the
reasons for this position, as aforementioned. Accordingly, I
find no refusal to bargain by the Respondent prior to the
stnke.43
The complaint alleges the Company refused to negotiate
a checkoff provision 44 The Union' s initial contract
proposal contained a checkoff clause providing for the
deduction by the Company of initiation fees and union
dues on a monthly basis. On July 17 the Union submitted a
written counterproposal on checkoff providing for the
deduction of union dues on a weekly basis, and the
Company did not agree to either of these proposals. As
pointed out, the Company's initial proposal did not have
any form of dues-collection form, but on November 26, the
Respondent outlined a dues-collection alternative. Under
this procedure the Company agreed to provide a dues-
collection table in each of the Company's cafeterias one
day per month as specified by the Union. A union officer
would be excused from work at each location to collect
union dues at the table from 11:20 a.m. to 1 p.m. without
any loss of pay. The Union did not agree to this proposal.
On November 28, however, the Company offered a
checkoff clause providing for the deduction by the
Company of union dues on a monthly basis. During the
negotiations Neighbours informed the Union that it was
not opposed in principle to checkoff, and at no time did the
Company refuse to discuss such a clause. The Respondent
remarked that the Independent Umon had not been given a
checkoff provision in its first contract with the Company
and Neighbours explained the Company felt there should
be a get-acquainted period with the Umon and also made
mention that taking dues out of a paycheck has the effect of
reducing the check in the eyes of the employee and
concealing from the employee the fact he is paying dues. As
pointed out by the Respondent these arguments were made
in an effort to persuade the Union that a checkoff clause
should not be included in the contract, but Neighbours did
not tell the Umon that the Company would never grant
checkoff. Checkoff subject matter was discussed at six or
seven of the bargaining sessions and of course, in the final
analysis, the Company on November 28 offered a checkoff
clause acceptable to the Union.
The complaint specifically alleges that the Company
refused to negotiate a union-security provision. The
Union's initial contract proposal contained a union-shop
clause. Later in the negotiations the Union submitted a
proposal to the Company , and in other instances some of the clauses
referred to by Watson appeared in the initial union proposal of February 3,
but were never thereafter mentioned or brought up for discussion He also
admitted that in a few instances , where he had stated on direct that the
Union's proposal was dropped , a compromise had actually been worked
out between the parties and which represented a gain to the Union
44 The 1965-68 contract with the Independent Umon contained a
checkoff clause requiring the Company to deduct dues on a weekly basis
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
counterproposal on union security which provided for an
agency-shop clause. The Company did not agree to either
of these provisions, and did not propose any form of a
union-security clause .45 Both the Union and agency shop
proposals were frequently discussed at the various negotiat-
ing meetings , and at no time did the Company refuse to
discuss the subject matter or refuse to state its reasons for
being opposed to such a clause. Neighbours also informed
the Union that there had never been a compulsory-
membership clause in effect at these plants and manage-
ment was not favorable to it, and that the old Independent
Union had received a maintenance-of-membership clause
before it was granted an agency-shop clause in 1965, as
aforementioned. The Company went on to make it clear
that they were not saying a union-security provision would
never be granted but there should first be a get-acquainted
period in which the Union could demonstrate its responsi-
bility. Both the Board and the Courts have held that an
employer's refusal to grant a union-security clause in
negotiations does not constitute bad-faith bargaining. See
Frick Co., 161 NLRB 1089, 1104; and Star Expansion
Industries, 164 NLRB 563, wherein the General Counsel
argued the fact that the employer denied a union-security
clause to the Union when such a clause had been in prior
contract, and such was evidence of bad faith and indicative
of the employer's intention to downgrade the union. The
Board adopted the recommendation of the Trial Examiner
that the allegations of the complaint with respect to 8(a)(5)
violations be dismissed. In the instant case it is noted that
the Company did agree to a checkoff clause which is a form
of union security, and the Union made it clear that it was
interested in a 1-year contract, and therefore only a short
period would have elapsed before the issue of union
security could have been presented once again.
It is also alleged that the Respondent refused to negotiate
an employee-bumping provision. The 1965-68 contract
with the Independent Union contained limited bumping
provisions, and in certain areas left considerable discretions
and powers with the Company .46 The Union 's initial
proposal contained various sections on bumping rights, and
was not limited to layoff situations.47 On July I the Union
submitted a written counterproposal on seniority which
included a modification of its original bumping
provisions.48 Under the union counterproposal bumping
would apply only in a layoff situation. However, the Union
omitted the several limitations on bumping contained in the
1965 contract except for the limitation that only the first
employee to be transferred and the employee he displaced
could exercise job choice. The Union's initial and
counterproposal on bumping were discussed at various
negotiation meetings , but the Company did not agree with
45 The 1965-68 contract with the Independent Union contained an
agency-shop clause.
46 GC Exh. 9(h); sec . 9, pp. 12 and 13 , and wherein if, as a result of
layoff, it became necessary to transfer an employee from his regular job,
the employee was given his choice of available jobs subject to the following
limitations:
(1) Only employees with at least one year's seniority were eligible.
(2) The employee was required to state his choice within 6 hours after
being notified he was to be transferred.
(3) The employee could choose a job only of equal or lower rating.
(4) The job chosen must be held by an employee with less seniority.
(5) Transfer to the job was subject to Company approval based on
either one and the Company did not present any bumping
proposals of its own. The Company' s main argument
against the Union's bumping proposal was on the grounds
of efficiency of operations, and the Company had
consistently opposed bumping on this ground. The
Company did agree that in the event it became necessary to
reduce the number of employees in a particular working
group due to a layoff, the first employee to be transferred
out would be the least senior employee. The Company
stated that in its opinion the primary purpose of seniority in
a layoff situation was the right of senior employees to be
retained at work. In these general respects Neighbours
testified as follows:
The remaining question, the one governed by
bumping, is a question of by what process it determined
what jobs those that remain will occupy. Now, at this
point our argument as plant officials, that we can place
an employee maybe where we need him, where we know
somebody is going to leave, where we know there is
going to be a need for an addition, where it will be least
disruptive, where we know this employee has a
particular skill. This is the more efficient way to do it.
If the employee has a choice of where he goes that
means just what it says. He can choose by whim,
personal preference, presumably would not choose by
efficiency as such. And he might go bump-and that is
where the expression came from-if he had that right,
bump off of a job fully occupied by somebody already
there doing it well. And that person, in turn, having a
right.
And we argued that by far the more efficient thing
was for the company to make this placement. We
pointed out that we are interested in using the skills of
people. And we are not interested in making people
unhappy just to do it. We are not going to take a lab
tech and put him on a broom. We have got use for him
or her. We have got to have skills. We want to use them.
-We will try to work this. This is their protection.
The Company summarizes its position on bumping with
the following:
From the very first the Company had been opposed to
bumping and had refused to grant such a clause. During
the 1965 contract with the prior union, a grievance had
been filed on the question of employee job choice in a
layoff situation. A company representative granted the
grievance and in his written answer stated that in the
future the Company would operate in this manner. This
was done without the knowledge or consent, and to the
consternation of, the Company's labor relations
department, but the Company felt bound by this
commitment by one of its management representatives.
skill, knowledge , ability, and physical fitness.
(6) Only the first employee to be transferred and the employee he
displaced had job choice ; any remaining transfers were made
by the Company without reference to employee job preference.
(7) An employee who was not able to perform the work after a
reasonable period could be moved to another job by the
Company.
47 Employees on leave of absence could bump on their return and there
could be bumping between shifts and locations , and employees would also
be given several other bumping privileges . See GC Exh. 12(a), Secs. 4, 5, 6,
7, 8, and 9.
48 GC Exh. 12(e), Article VIII, section 3.
THE DOW CHEMICAL COMPANY 383
In the 1959 negotiations, therefore, the Company
agreed to a limited bumping clause along the lines
outlined in the grievance answer. Although the
Company did not like the clause, and would have liked
to get rid of it, it had no reasonable bargaining occasion
to do so. When OCAW presented its proposals for a
complete redrafting of the prior agreement with brand-
new approaches, the Company felt it was then able to
redraft and/or omit those provisions of the 1965
contract which it did not favor. One of those was
bumping. The Union's final proposal on bumping was
broader in scope and considerably more unattractive to
the Company than the limited provisions in the prior
contract, and the Company thus opposed its inclusion
in the contract.
As noted, by November 17 there were only nine contract
issues unresolved. These were agency shop, checkoff,
overtime distribution, bumping, promotion waiting time,
wages, holiday eligibility, amount of premium pay for
Sundays and holidays, and an exception to premium pay.
On November 26 the Company made acceptable conces-
sions and compromise proposals on checkoff, premium pay
for Sundays and holidays, holiday eligibility, and waiting
time for promotions. This left five contract issues in
dispute, and I have previously detailed herein the
proposals, counterproposals, reasons, and arguments on the
subject matters of agency shop and bumping.49 Watson
stated that on overtime distribution only one word divided
the parties, but otherwise they were in agreement. It
appears the Union wanted overtime to be distributed
equally by hours while the Company wanted it to be by
turns or times 50 The overtime distribution issue was
discussed at several sessions during the negotiations, and I
submit that the Company's position on overtime distribu-
tion is not evidence of bad-faith bargaining. The Union
initially proposed a 30-cent per hour general wage
increase-later 25 cents, and the Company initially
proposed a 10-cent per hour general increase. On
November 26 and 28 the Company offered to increase their
proposal to 13 cents and then to 15 cents per hour and
retroactive to February 3. As pointed out, the Company
offered additional wage increases for skilled employees of 5
to 15 cents per hour. It should also be noted that the
Company had granted improvements in fringe benefits.
These included increases in pension benefits, insurance,
shift premium pay, safety shoe allowance, and an
additional paid holiday. Furthermore, the Company agreed
to shorten the automatic wage progression schedule from
36 months to 12 months, with the result that employees
could reach the top rate of their classification 24 months
earlier than had been the practice under the 1965 contract.
The Union was asking for 6 months. Relative to the
exception to premium pay issue-on November 28, the
49 It should be noted here that the parties reached agreement on a
comprehensive seniority article, and only bumping remained in issue.
50 The Company maintains the 1965 contract was ambiguous providing
that overtime should be divided "as equally as possible." See GC Exh. 9(h),
sec. 7. The Company argues that under the 1965 contract, there was
variation between the departments in the handling of overtime distribution,
and some departments equalized by turn, while other departments by
hours, and for these reasons the Company objected to the language or
clause of the 1965 contract which the Union was proposing.
Company advised the Union that it would agree either to
the overtime provisions of the 1965 contract (time and one-
half with no exception) or to the Company 's latest proposal
of double time with the exception. This offer was rejected
by the Union.
In the final analysis-the General Counsel's case pretty
much hinges on the subject matters of bumping, union
security, and checkoff. In essence , his theory is that these
three subject matters, in some form or content, were present
in the 1965-68 contract and in various respects were also
negotiated in other labor agreements with the parent
company-and therefore, they had to be included in this
contract in order to show good-faith bargaining on the part
of the Respondent.
In N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1,
the Supreme Court stated in the course of this decision:
The Act does not compel agreements between
employers and employees. It does not compel any
agreement whatever. . . . The theory of the Act is that
free opportunity for negotiation with accredited
representatives of employees is likely to promote
industrial peace and may bring about the adjustments
and agreements which the Act in itself does not attempt
to compel.
Notwithstanding the holding and language in Jones &
Laughlin- Congress subsequently amended Section 8(d) to
provide that the obligation to bargain collectively "does not
compel either party to agree to a proposal or require the
making of a concession." In discussing the effect of that,
amendment, the Supreme Court said it is "clear that the
Board may not, either directly or indirectly, compel
concessions or otherwise sit in judgment upon the substan-
tive terms of collective bargaining agreements" N.L.R.B. v.
American Ins. Co., 343 U.S. 395, 404 (1952). Later the
Supreme Court affirmed that view stating that " it remains
clear that § 8(d) was an attempt by Congress to prevent
the Board from controlling the settling of the terms of
collective bargaining agreements." N.L.R.B. v. Insurance
Agents, 361 U.S. 477, 487, (1960) .
In H. K. Porter Co., Inc., 397 U.S. 99, the Supreme Court
granted certiorari to consider whether the Board had the
power to remedy the unfair labor practices by requiring the
employer to agree to check off the dues of workers-396
U.S. 817-The Supreme Court held that while the Board
does have power under the Act to require employers and
employees to negotiate, it is without power to compel a
company or a union to agree to any substantive contractual
provision of a collective-bargaining agreement.51 In Porter
the Supreme Court stated:
It is implicit in the entire structure of the Act that the
Board acts to oversee and referee the process of
collective bargaining, leaving the results of the contest
to the bargaining strengths of the parties. It would be
51 The dispute in Porter revolved around the union's desire to have the
employer agree to checkoff the dues periodically from the company's wage
payments to employees. The evidence showed that the company's objection
was not because of inconvenience , but solely on the ground that the
company was not going to aid and comfort the union, and efforts by the
union to obtain some kind of compromise on the checkoff request were all
met with the same response to the effect that the collection of union dues
was the union 's business and the company was not going to provide any
assistance.
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anomalous indeed to hold that while § 8(d) prohibits
the Board from relying on a refusal to agree as the sole
evidence of bad faith bargaining, the Act permits the
Board to compel agreement in that same dispute. The
Board's remedial powers under § 10 of the Act are
broad, but they are limited to carrying out the policies
of the Act itself . One of these fundamental policies is
freedom of contract. While the parties' freedom of
contract is not absolute under the Act, allowing the
Board to compel agreement when the parties themselves
are unable to do so would violate the fundamental
premise on which the Act is based-private bargaining
under governmental supervision of the procedure alone,
without any official compulsion over the actual terms of
the contract.
The above cases put to rest any contentions that union
security and bumping provisions could be mandated by the
Union in the instant case , and there only remained for my
consideration whether or not, in the total picture, such
denials, coupled with the other surrounding events and
incidents , amounted to a refusal to bargain in good faith;
and the ultimate determination of whether the Company
conducted its negotiations in good faith involves the
ascertainment of motive or state of mind which can only be
established by evidence taken from the totality of the
Respondent's conduct.
There also remains for final determination the allegations
that the Company threatened employees that they would be
permanently replaced, and bargained individually with
them. Since I have found that the Company bargained in
good faith, the strike must be deemed an economic one. It is
well settled that when faced with an economic strike an
employer has the right to continue his business by hiring
permanent replacements , and is under no duty to terminate
52 Guyon Machinery Co, 155 NLRB 591, 618
53 N L R B v Fleetwood Trailer Co, 389 U S 75, The Lardlaw
the replacements at the conclusion of an economic strike,
and beforehand could so advise the employees . 52 There-
fore , the letters in question as aforementioned and the
incident involving Wingo must be deemed in compliance
with privileged communications . In essence , the Company
has fully recognized that economic strikers remain
employees , and has taken the position that it will offer them
employment if additional help is needed or vacancies occur.
This is as much as the Act requires.53
The events in this case extended over a considerable
length of time and included an election , the displacement of
the Independent Union which had been the bargaining
agent for many years , an interim period, 37 or 38
bargaining sessions and a strike . Yet, in this record "there is
no evidence whatsoever that Respondent , or any of its
representatives , at any time made any statements disparag-
ing OCAW, any statements opposing OCAW, any
statements critical of OCAW, or any statements indicating
union animus or opposition to the collective bargaining
process."
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent did not violate Section 8 (a)(1) and (5) of
the Act as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law , and upon the entire record in the case, I
recommend that the complaint be dismissed in its entirety
Corporation, 171 NLRB No 175, C H Guenther & Son, Inc , 174 NLRB
No 174