The Timken Roller Bearing Co.

National Labor Relations Board - Board Decisions

Aug 26, 1946

70 N.L.R.B. 500 (N.L.R.B. 1946)

In the Matter of THE TIMKEN ROLLER BEARING COMPANY and UNITED
STEELWORKERS OF AMERICA, (C. I. 0.)
Case No. 8-C-1815.-Decided August 06, 1946
Mr. Louis S. Belkin, for the Board.
Messrs. Lynch, Day, Lynch, Cope and Ketterer, by Messrs. John G,
Ketterer, Don W. Raley, and G. H. Turner, of Canton, Ohio, for the
respondent.
Messrs. Herschel Kriger, I: W. Abel, and Finas Reynolds, on Canton,
Ohio, and Mr. Frank Donner, of Washington, D. C., for the Union.
Mr. Sidney Grossman, of counsel to the Board.
DECISION
AND
ORDER
On February 6, 1946, Trial Examiner Horace A. Ruckel issued his
Intermediate Report in the above-entitled proceeding, finding that the
respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action; as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the respondent had not engaged in other unfair labor practices alleged
in the complaint and recommended that the complaint be dismissed
as to them. Thereafter, the Union and the respondent filed exceptions
to the Intermediate Report and supporting briefs. Oral argument, in
which the respondent and the Union participated, was held before
the Board in Washington, D. C., on May 21, 1946.
The Board has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate,Report, the exceptions and briefs of the parties, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner except as they are inconsistent
with our findings and order hereinafter set forth.
1. In-view of the circumstances hereinafter disclosed, we are unani-
mously of the opinion that the Union may not now invoke our aid
with respect to the issue concerning the Employees' Manual. On
70 N. L. R. B., No. 39.
500
I
THE TIMKEM ROLLER BEARING COMPANY 501
June 13, 1945, following the respondent's refusal to bargain as to
this matter, the Union, pursuant to the terms of the 1943 agreement
under which the parties then were operating, submitted this contro-
versy to the American Arbitration Association for arbitration. The
respondent, although at first refusing to refer this matter to arbitra-
tion, subsequently consented that there be submitted to the arbitrator
only the question as to whether the dispute is arbitrable within the
meaning of the 1943 agreement. On July 2, 1945, the Union also filed
its original charge before the Board as to this issue. It'did not there-
after attempt to withdraw from the arbitration proceeding, as stated
by the Trial Examiner, but on July 6, 1945, it, advised the American
Arbitration Association that "the arbitrator selected should determine
whether or not the case is arbitrable and if so, he should also determine
the merits of the case.". Although in the course of the arbitration
hearing, the Union requested that further consideration of the case
be suspended pending disposition of the charges before the Board,
the arbitrator nevertheless completed the hearing and, on September
28, 1945,1 before the issuance of the complaint herein, rendered a
decision on the merits in favor of the respondent.
It is evident that the Union has concurrently utilized two forums
for the purpose of litigating the matter here in dispute. Although the
arbitrator determined the issues before him within the framework of
the 1943 agreement and expressly refrained from prejudicing the
rights of either party before the Board, it would not comport with
the sound exercise of our administrative discretion to permit the Union
to seek redress under the Act after having initiated arbitration pro-
ceedings which, at the Union's request, resulted in a determination
upon the merits? In the interest of ending litigation and otherwise
effectuating the policies of the Act, we shall dismiss that portion of
the complaint relating to the respondent's refusal to bargain as to
the Employees' Manual.
Although, for the reasons stated above, we have dismissed the com-
plaint as to the Employees' Manual, we do not concur with the re-
spondent's contention that by submitting this matter to arbitration it
fulfilled its obligation to bargain. As indicated in the Intermediate
Report, the record discloses that the respondent in fact refused to
bargain as to this issue for the reason that the promulgation and is-
suance of an employees' manual rests within its managerial preroga-
' The Trial Examiner inadvertently refers to this date as November 10, 1944.
z We do not thereby imply that the determination of an arbitrator is binding upon the
Board. Section 10 (a) of the Act provides that the power of the Board to prevent unfair
labor practices affecting commerce "shall be exclusive and shall not be affected by any
other means of adjustment or prevention that has been or may be established by agree-
ment, code , law, or otherwise ." Cf. N. L. R. B. v. Newark Morning Ledger Company,
120 F. ( 2d) 262 (C. C A. 3), cert. denied 314 U. S. 693; N. L. R. B. v. Walt Disney Pro-
ductions, 146 F. ( 2d) 44 , 48 (C. C. A. 9), cert. denied 65 U . S. 1025.
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive. In support of its position, the respondent also asserts that em-
ployees aggrieved by the improper' administration of rules contained
in the Manual may seek redress through the contract grievance
procedure.
The Employees' Manual includes various rules which affect working
conditions in the plant and some rules afe of the type which, without
adequate qualifications and safeguards, may be unduly restrictive of
legitimate concerted activities .3 An employer has an affirmative duty,
as a continuing part of the collective bargaining process, to negotiate
as to such matters with the employees' statutory representative. This
view is not inconsistent with management's right, as enunciated by the
arbitrator, to formulate and publicize rules of conduct for its employ-
ees; it simply means that, insofar as the exercise of this managerial
prerogative affects the employees' working cgnditiolis in their day-to-
day relationship with their employer, the representative of the unit
has a right to be consulted. Nor is collective bargaining, as thus
viewed, delimited by a grievance procedure, established by contract, as
exists here, which normally entails the presentation of claims by indi-
viduals or small groups respecting their own individual or group in-
terests. Any other view would preclude the statutory representative
from bargaining as to matters concerning which no individual griev-
ance may exist but which affect the working conditions of the employ-
ees collectively .4 We therefore agree with the Trial Examiner that
the respondent's refusal to negotiate as to the Employees' Manual was
not in conformity with the requirements of the Act, but in the circum-
stances of this case, we shall not as a matter of policy exercise our
jurisdiction to sustain his findings with regard thereto.
2. We do not agree with the Trial Examiner's finding that, by uni-
laterally requesting employees'to work overtime without consulting the
Union, the respondent refused to bargain. At the hearing, Reynolds,
president of the Union, testified that, following the plant's reversion
from a 48-hour week to a 40-hour week after V-J day, employees were
required to work overtime to such an extent that a majority were work-
ing 48 hours a week. The Union contends that, by thus extending the
work-week without union approval, the respondent violated the terms
3 For instance, rules which prohibit distribution of literature and other printed matter
on company premises or engaging in strikes and other interruptions of work. See also
Intermediate Report, footnote 7. Various penalities are prescribed in the Employees'
Manual for violations of the rules.
A Cf Matter of Aluminum Ore Company, 39 N. L R. B. 1286, 1296, enf'd as mod.
131 F. (2d) 485 (C C. A. 7) ; Matter of Westinghouse Air Brake Company, 25 N L R. B.
1312, 1326-1327,,enf'd as mod. 120 F. (2d) 1004 (C. C. A. 8) ; Matter of South Carolina
Granite Company, 58 N. L. R. B. 1448, 1461.
For similar reasons, as well as those stated by the Trial Examiner in his Intermediate
Report, the respondent's contention, in justifying its refusal to bargain with respect to
other issues, that employees have not presented grievances in connection with such issues,
is likewise unsound.
THE TIMKEM ROLLER BEARING COMPANY 503
of the 1943 agreement ,5 and thereby unilaterally changed the length of
the work -week in violation of Section 8 (5) of the Act . On the other
hand, the respondent maintains that, because of a labor shortage and
other reasons, it offered overtime to employees upon a voluntary basis
and that employees were not penalized for their refusal to comply.
Glenn, the respondent 's general superintendent, testified that as of the
week beginning August 19, 1945, about 25 percent of the employees in
about 80 percent of the departments were offered overtime work and
that by October 7 , 1945, the offer was extended to about 50 percent of
the employees in about 95 percent of the departments ." He also testi-
fied that about 60 percent of the employees to whom such offer was
made reported for work during a 2-week period following V-J day,
but the number thereafter decreased to about 2 percent as a result of
Union opposition . The evidence also reveals that at a conference with
the respondent on August 27, 1945, the Union objected to any practice
that would preclude employees from working overtime in certain
instances.
Especially important , the 1943 agreement contemplates that em-
ployees may work overtime and provides a deterrent in the form of
premium wages for work performed in excess of 8 hours a day or 40
hours a week .7 That was the parties' bargain , and could only have
meant that they always anticipated that individual employees would
be expected to work additional hours from time to time, without new
collective negotiations being necessary in each instance.
In this context , we are unable to find , as did the Trial Examiner, that
consultation with the Union is necessary when employees are asked to
work overtime , nor are we able to read any such provisions into the
agreement . The evidence is not sufficient to warrant a finding that the
respondent effectuated a change in the length of the workweek, as
alleged in the complaint ." Notwithstanding plant reversion to a 40-
hour week after V-J day, the respondent and the Union contemplated
that there would be some overtime . Although the respondent extended
the offer of overtime to a substantial number of employees , this, in
itself, does not establish a change in the workweek . We therefore
The contract provisions referred to by the Union are :'
SECTION III. (2 ) The normal hours of work shall be eight (8) per day and forty
(40) per week. * * *
(3) There shall be no change in the daily hours of work unless such change be
first mutually agreed upon between the Company and the Union.
O Employees in the percentages mentioned did not work overtime, as stated by the Trial
Examiner, but were offered overtime.
I See Intermediate Report, footnote 9, for the language of the 1943 agreement relating
to overtime work.
I The complaint alleges, in substance, that the respondent unilaterally announced and
effectuated an eight-hour increase in the workweek for a substantial portion of the
employees without consulting the Union, and that the respondent refused to accede to a
request to bargain as to the change in working hours.
504 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shall dismiss that portion of the complaint relating to the respondent's
refusal to bargain as to the so-called overtime issue.
3. The Trial Examiner found that the respondent unlawfully re-
fused to bargain concerning a, lack of sufficient employees in the 10-inch
mill and with respect to the working schedules of maintenance em-
ployees. He inadvertently omitted to state that, by letter dated Octo-
ber 17, 1945, subsequent to the strike, the Union requested a meeting
as to these matters, and that in its response of October '19, 1945, the
respondent refused to accede to this request. We hereby correct the
Intermediate Report by including herein such omissions, and as thus
corrected, all agree with the Trial Examiner's findings .9 By such
refusal to bargain concerning a lack of sufficient employees in the 10-
inch mill and by the refusal to bargain concerning the working sched-
ules of maintenance employees, and by each of them, the respondent
refused to bargain within the meaning of Section 8 (5) of the Act.
4. The Trial Examiner found that the respondent unlawfully're-
fused to bargain with the Union (1) by unilaterally effecting a change
in the working conditions in department 180 and by refusing to discuss
the matter with the Union; (2) by refusing to bargain regarding the
subcontracting of work; and (3) by refusing to bargain'concerning
the work schedules of pitcrane hands in department 19,910 For the
reasons stated in the Intermediate Report and those previously men-
tioned hereinabove, we all agree with the Trial Examiner's findings
as to these matters. By such acts, and each of them, the respondent re-
fused to bargain within the meaning of Section 8 (5) of the Act.
THE REMEDY
The Union in its exceptions and supporting brief requests, in sub-
stance, that the changes instituted by the respondent's unlawful uni-
lateral action be revoked and that the working conditions existing
prior to such unilateral action be restored. We have found that the
respondent's unilateral action in changing the working conditions
in department 180 without consulting the Union and its refusal to
0 We also concur with the Trial Examiner 's conclusion that the existence of a strike
allegedly in violation of a no-strike clause does not impair the obligation to bargain. It
is the declared policy of the Act to mitigate and eliminate obstructions to the free flow
of commerce by encouraging the practice and prpcedure of collective bargaining. A no-
strike clause is designed to keep disputes from interrupting the respondent 's operations
but, as the case under consideration amply demonstrates it constitutes no guarantee that
such interruptions will not occur . Unless the statutory duty to bargain collectively is
held to remain in force even after a labor contract previously made has been broken, the
purpose of the Act to promote industrial peace through collective bargaining will be
attained only in small measure Consequently , the refusal of the respondent to bargain
with the Union after the strike is a violation of Section 8 (5) of the Act . Cf N. L. R. B.
v. Highland Shoe , Inc, 119 F. ( 2d) 218 (C. C. A. 1); Matter of Consumers Veneer &
Lumber Company , 63 N. L R. B . 17, 25, 40. _
10 In his concluding findings in the Intermediate Report , the Trial Examiner inadvertently
referred to department 199 as department 180.
THE TIMKEN ROLLER BEARING COMPANY 505
bargain with respect thereto is violative of Section 8 (5) of the Act.
The Union's proposed remedy therefore is solely applicable to the
unilateral change in working conditions effectuated by the respondent
in this department. However, we note that the subject matter of the
Union's complaint with respect thereto has now been settled by the
terms of a new contract entered into by the parties subsequent to the
close of the hearing herein?1 We, therefore, shall withhold the affirma-
tive action requested by the Union.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, The Timken Roller Bearing
Company, Canton, Ohio, and its officers, agents, successors, and assigns
shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Steelworkers of
America (C. I. 0.), as the exclusive representative of all production
and maintenance employees at the respondent's bearing, steel, and
tube plants at Canton, Ohio, its steel and tube plant and bearing plant
at Gambrinus, Ohio, and its plants at Wooster, Mt. Vernon, and
Columbus, Ohio, excluding foremen, assistant foremen, or supervisors
in charge of any class of labor, bricklayers, watchmen, guards, factory
clerks or other clerical workers, and salaried employees, in respect to
labor disputes, grievances, rates of pay, wages, hours of work, and
other terms or conditions of employment and particularly with
respect to the change of working conditions in department 180, the
sub-contracting of work, the lack of sufficient employees in the 10-inch
mill, the working schedules of the maintenance employees, and the
working schedules of the pit-crane hands;
(b) Unilaterally making changes without consulting the Union
referred to above with respect to rates of pay, wages, hours of work,
and other terms or conditions of employment;
(c) Any other acts in any manner interfering with the efforts of
United Steelworkers of America (C. I. 0.) to negotiate on behalf
of the respondent's employees in the appropriate unit.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Steelworkers
of America (C. I. 0.), as the exclusive representative of all produc-
tion and maintenance employees at the respondent's bearing, steel,
"At the oral argument before the Board, we granted the respondent ' s motion, which
the Union did not oppose, that the record be reopened and that the contract entered into
between the parties on April 22, 1946 , be made part of the record.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and tube plants at Canton , Ohio, its steel and tube plant and bearing
plant at Gambrinus , Ohio, and its plants at Wooster , Mt. Vernon,
and Columbus , Ohio, excluding foremen, assistant foremen, or super-
visors in charge of any class of labor, bricklayers , watchmen, guards,
factory clerks , or other clerical workers, and salaried employees, in
respect to labor disputes , grievances , rates of pay , wages, hours of
work, and other terms or conditions of employment , and particularly,
bargain collectively with respect to the change of working conditions
in department 180, the sub -contracting of work; the lack of sufficient
employees in the 10-inch mill , the working schedules of the main-
tenance employees , and the working schedules of the pit -crane hands;
(b) Post immediately in conspicuous places throughout its Canton,
Gambrinus , Wooster, Mt. Vernon , and Columbus , Ohio, plants , copies
of the notice attached hereto and marked "Appendix A." Copies of
said notice , to be furnished by the Regional Director for the Eighth
Region, shall , after being duly signed by the respondent 's representa-
tive, be posted by the respondent immediately upon receipt thereof,
and maintained by it for sixty ( 60) consecutive days thereafter, in
conspicuous places, including all places where the respondent cus-
tomarily posts notices to its employees . Reasonable steps shall be
taken by the respondent to insure that said notices are not altered,
defaced, or covered by any other material;
(c) Notify the Regional Director for the Eighth Region in writing,
within ten ( 10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the respondent violated Section 8 (1)
of the Act independently of its.conduct in violation of Section 8 (5)
of the Act.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant,to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
We will not refuse to bargain collectively with the United Steel-
workers of America (C. I. 0.) as the exclusive representative of
the employees in the unit described below, and particularly with
respect to the change of working conditions in department 180,
the subcontracting of work, the lack of sufficient employees in the
10-inch mill, the working schedules of maintenance employees,
and the working schedules of pit crane hands.
THE TIMKEN ROLLER BEARING COMPANY 507
We will not unilaterally make any changes with respect to rates
of pay, wages, hours of work, and other terms or conditions of
employment.
We will not in any manner interfere with the efforts of the
United Steelworkers of America (C. I. 0.) to negotiate on behalf
of our employees in the appropriate unit.
We will bargain collectively with United Steelworkers of
America (C. I. 0.) as the exclusive representative of our em-
ployees in the bargaining unit described below.
THE BARGAINING UNIT IS:
All production and maintenance employees in our bearing,
steel.3 and tube plants at Canton, Ohio, our steel and tube
plant and bearing plant at Gambrinus, Ohio, and our plants
at Wooster, Mt. Vernon, and Columbus, Ohio, excluding fore-
-men, assistant foremen, or supervisors in charge of any class
of labor, bricklayers, watchmen, guards, factory clerks, or
other clerical workers, and salaried employees.
------------------------
( Employer)
By ------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
MR. GERARD D. REILLY, concurring in part, dissenting in part :
This record does contain evidence of certain instances in which the
respondent refused to bargain with the certified representative with
respect to matters not inchided in the contract. I refer particularly
to the controversy over the working schedule of maintenance em-
ployees, as well as respondent's refusal to meet with the Union to dis-
cuss the alleged lack of sufficient employees in the 10-inch mill.
For the reasons which I noted in my separate opinion in the Matter
of J. H. Allison case,12 I cannot agree with the principal theory upon
which this case was tried, namely, the existence of a duty to bargain
on matters already covered by the collective bargaining agreement.
It seems to me that an employer during the life of such an agreement
has no duty to meet with the union to discuss changes in the contract
terms. Of course if there is an instance of a mis-application of the
contract provisions, that is something different. But such a question
should be resolved by resorting to the grievance procedure, and for
that reason I feel that this company did not violate the law in insist-
1270 N L R B. 377, decision issued August 26, 1946
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing that the issuance of the employees' manual be disposed of under
the machinery established in the agreement. I should therefore con-
cur with the Board 's reversal of the Trial Examiner on this issue on
this further ground.
I also concur with the majority's opinion with respect to the so-
called "unilateral change in the work-week." The agreement itself,
by permitting overtime work if certain penalty overtime was paid,
gave the employer the option of increasing the schedule of hours,
provided he was willing to pay the penalty exacted by the contract.
This case is a peculiar one in that it is difficult, under established
rules of decision of this Board and the courts, to approve the position
taken by either of the contending parties. I cannot agree with the
proposition advanced by the company that certain issues affecting
wages, hours, and the working conditions of the employees in the bar-
gaining unit are not a proper subject for collective bargaining but
rather fall within the nebulous area described as a management pre-
rogative. At the same time, to accept the Union's thesis that, even
after bargaining negotiations have resulted in a contract, the contract
should never be construed as- depriving the bargaining representative
of the right to open up all issues for re-negotiation, would seem to me
to destroy all stability in the collective bargaining relationship and
make a mockery of the emphasis which this Board has placed upon
reducing the issues adjusted in the bargaining process to the form of
a written agreement 19
MR. JOHN M. HOUSTON, dissenting in part :
I would sustain the Trial Examiner's finding that the respondent
violated Section 8 (5) by instituting widespread changes in working
hours without prior consultation with the Union. The record is clear
that the respondent sought to effect a substantial change in the work
week contrary to the terms of its collective bargaining contract with
the Union.14 Overtime hours of work are concededly a bargainable
issue. It follows that an employer owes a duty to discuss proposed
modifications in this connection, Admittedly this employer did not
do so. We should remedy this violation as well as the others found
in this case.
INTERMEDIATE REPORT
Mr. Louis S. Belkin , for the Board.
Lynch, Day, Cope and Ketterer, by Messrs. John G. Ketterer and Don. W. Raley,
of Canton, Ohio, and Mr. G. H. Turner, of Canton, Ohio, for the respondent
Messrs Herschel Kriger, I. 1V. Abel, and Fanas Reynolds, of Canton, Ohio, for
the Union.
is N L R B. v. H J. Heinz Co ., 311 U S 514
" See Section III (3 ) of the contract , footnoted in the majority decision.
THE TIMKEN ROLLER BEARING COMPANY
STATEMENT OF THE CASE
509
Upon a second amended charge filed on October 18, 1945, by United Steelworkers
of America (C. I. 0.), herein called the Union, the National Labor Relations
Board, herein called the Board, by its Regional Director for the Eighth Region
(Cleveland, Ohio), issued an amended complaint dated October 30, 1945, against
The Timken Roller Bearing Company, herein called the respondent, alleging that
the respondent had engaged in and was engaging in unfair labor practices affect-
ing commerce within the meaning of Section 8 (1) and (5) and Section 2 (6) and
(7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.
The respondent filed an answer dated November 8, 1945, in which it admitted some
of the allegations of the complaint, but denied that it had engaged in any unfair
labor practices.
Pursuant to notice, a hearing was held from November 13 to 21, 1945, at Canton,
Ohio, before Horace A. Ruckel, the undersigned Trial Examiner duly appointed
by the Chief Trial Examiner The Board, the respondent, and the Union were
represented by counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bear-
ing upon the issues was afforded all parties. Upon the opening of the hearing,
counsel for the respondent moved to make the complaint more definite and cer-
tain. The undersigned granted this motion in part.' During the course of the
hearing the undersigned granted a motion by counsel for the Board further to
amend the complaint, and on November 14 amendments to the complaint were
filed.
With respect to the unfair labor practices, the complaint, as amended, alleged
in substance that the respondent (1) since July 14, 1942, has failed and refused
to bargain collectively with the Union although the Union has been the repre-
sentative of a majority of the employees in an appropriate unit, and (2) since
about February 1, 1944, has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act by making dis-
paraging remarks concerning the Union, by removing union bulletins and other
material posted on bulletin boards maintained for use by the Union, and by
urging supervisors to keep, and by keeping, activities of union members under
surveillance. N
The respondent amended its answer to deny the allegations of the complaint
as amended.
Upon the conclusion of the Board's case the undersigned granted a motion by
counsel for the respondent to dismiss certain allegations of the complaint for
want of evidence and'denied his motion to dismiss it in other particulars and as a
whole.2 At the conclusion of the hearing counsel for the Board moved to conform
the pleadings to the proof in formal matters, and counsel for the respondent
renewed his motion to dismiss the complaint as a whole. The undersigned
granted the motion of counsel for the Board and reserved ruling on the motion
of counsel for the respondent. It is hereby denied.
Counsel's motion was that the names of supervisory employees alleged to have made
statements hostile to the Union be furnished, together with information as to the place
and approximate date when such statements were alleged to have been made. This infor-
mation was given counsel for the respondent in accordance with the Trial Examiner's
ruling
2 The allegations which the Trial Examiner dismissed were that the respondent refused
to bargain collectively by (a) unilaterally instituting new and revised work schedules in
department 190 ; (b) unilaterally effectuating a stagger system in allocating work in
department 73, and by (c) refusing to discuss with the Union the discharge of an employee.
No evidence was offered in support of these allegations.
510' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties were advised that they might argue orally before the Trial Exam-
iner, and might file briefs with the Trial Examiner by December 5, 1945. No
oral argument was had. Subsequently, the time within which briefs might be
filed was extended-to December 19. The Board, the Union, and the respondent
have filed briefs.
Upon the entire record in the case and from his observation of the witnesses, the
undersigned makes the following
0
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The respondent is an Ohio corporation having its principal office and place of
business at Canton, Ohio. It is engaged in the manufacture of bearings, steel
tubing, and rock bits. It operates plants at Canton, Gambrinus, Wooster, Mt.
Vernon, and Columbus, Ohio. During the calendar year 1944 the respondent used
'materials consisting principally of pig iron, steel, and scrap, in excess of
$20,000,000 in value, of which approximately 50 percent was shipped to it from
points outside the State of Ohio During the same period the value of the re-
spondent's finished products amounted to more than $100,000,000, of which
approximately 50 percent was shipped by it to purchasers outside the State of
Ohio.
The respondent admits that it is engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America is a labor organization admitting employees
of the respondent to membership. It is affiliated with the Congress of Indus-
trial Organizations.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain
1. The appropriate unit and representation by the Union of a majority therein
The complaint alleges, the answer admits, and the undersigned finds, that all
production and maintenance workers in the respondent's bearing, steel, and
tube plants at Canton, Ohio, its steel and tube plant 'and bearing plant at
Gambrinus, Ohio, and its plants at Wooster, Alt Vernon, and Columbus, Ohio,
excluding foremen, assistant foremen, or supervisors in charge of any class of
labor, bricklayers, watchmen, guards, factory clerks or other clerical workers,
and salaried employees, constitute a unit appropriate for collective bargaining
within the meaning of Section 9 (b) of the Act.
On or about July 31, 1942, following a consent election on July 14 among the
employees in the appropriate unit, the Board certified the Union as the collec-
tive bargaining representative of the employees within the unit.' On February
19, 1943, the respondent and the Union entered into a contract covering such
employees. ,
The undersigned finds that on July 14, 1942, and at all times thereafter, the
Union was the duly designated representative of a majority of the employees in
the appropriate unit, and that by virtue of Section 9 (a) of the Act, was on
July 14, 1942, and thereafter, the exclusive representative of all employees in
3 Timken Roller Bearing Company , 42 N. L R B. 1190
THE TIMKEN ROLLER BEARING -COMPANY 511
such unit for the purposes of collective bargaining with respect to rates of pay,
wages, hours, and other conditions of employment.
2. The refusal to bargain
(a) The issues
The specific issues pertaining to the refusal to bargain are presented by the
allegations that the respondent (1) on or about lIay 1, 1945, unilaterally and
without prior consultation with the Union, issued an employee manual setting
forth certain plant rules and penalties for their infringement, and, thought
requested, refused to bargain concerning the matter with the Union; (2) on or
about September 14, 1945, unilaterally effected an increase of 8 hours in the
work week of a substantial number of employees within the appropriate unit,
and thereafter, though requested, refused to, bargain with the Union respecting
the matter; (3) unilaterally effected a change in the working conditions of
employees in Department 180 by announcing and effectuating such change with-
out consulting the Union and refusing to bargain with the Union when requested
to do so; (4) on or about October 1, 1945, refused to bargain with the Union
with respect to the continuance of a practice of sub-contracting certain produc-
tion and maintenance work to private contractors; (5) refused to bargain con-
cerning a lack of sufficient employees in the respondent's 10-inch mill ; (6 )-
refused to bargain concerning the working schedules of maintenance workers;
(7) on or about October 16, 1945, refused to bargain with the Union with,
respect to the working schedules of pit crane hands in Department 180.
There is a minimum of dispute as to the factual situation revealed by the
record. In general, the respondent does not deny that it failed and refused,
and fails and refuses , to discuss with the Union the several matters embraced
by the allegations of the complaint. It defends its conduct in this respect on
the grounds that the Board has no jurisdiction to order an employer to bar-
gain collectively after the parties have reached a contract; that certain of the
matters in question are not proper subjects for collective bargaining; that a
so-called "management" clause in the current contract ' between the respondent
and the Union reserves to the respondent the right to act unilaterally on mat-
ters other than those customarily embraced by the phrase "wages, hours, and
working conditions" ; that the established grievance procedure ' must be resorted
to before the respondent may properly be charged with the failure to bargain
° This contract , referred to in the record as the 1943 contract , recognized the Union as
the bargaining representative of the employees in the unit hereinbefore found to be appro-
priate. The clause in question reads as follows
Section IV-Management
The management of the works and the direction of the working forces , including the,
right to, hire, suspend or discharge for proper cause, or transfer , and the right to
relieve employees from duty because of lack of work, or for other legitimate reasons,
is vested exclusively in the Company, provided that this will not be used for purposes-
of discrimination against any member of the Union.
The grievance procedure consisted of four steps : (1) the presentation of the grievance
to the department foreman by the Union representative; ( 2) grievances not adjusted by
the foreman to be reduced to writing and discussed by the Union's representative and the
Department Superintendent ; ( 3) if the Department Superintendent is unsuccessful in
adjusting the grievance, then the grievance committee of the Union may present the
grievance to a duly designated representative of the management ; ( 4) if , the grievance
is not settled by the previous step, then it may be jointly presented to a representative of
the management by an International representative of the Union and the grievance com-
mittee.
The contract further provided as follows :
Step 5. Any grievance or dispute involving the interpretation or application of this-
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
collectively; that in at least one instance the Union resorted to the arbitration
provided for by the contract, and obtained an unfavorable decision, all of which
should i bar a finding of unfair labor practices based upon the respondent's
subsequent refusal to bargain on the matter, in view of a provision in the 1943
contract that an award of an arbitrator should be final and binding on the
parties ; and that it was not obliged to bargain with the Union while the Union
was on strike.'
(b) Specific mutters on which the respondent has refused to bargain
(1) The Employees' Manual
For many years the respondent has issued and delivered to employees copies
of a book of rules and instructions. These rules were revised and reissued on
May 28, 1945, under the title of Employees Manual. This was done without
prior notice to, or consultation with, the Union. Shortly prior to the date of
the formal issuance, however, the proposed issuance came to the attention of the
Union, and on May 11 the Union wrote the respondent protesting its publication
without consulting the Union, and objecting to certain specific rules. On May 31,
the Union again wrote the respondent, in part as follows :
We have examined the Employees' Manuel (sic) which was recently
distributed to all of our members of the Canton and Gambrinus Divisions.
We find this Manuel to be in violation of the provisions of the existing
contract between the Company and the Union. We further find that it is
not in compliance with the provisions of the National Labor Relations Act.
Since the Employees' Manuel is the proper subject for a grievance of a
general nature, we should like to meet with the duly designated repre-
sentatives of the Company at their earliest convenience to register our pro-
test against the aforementioned Employees' Manuel'
The respondent replied to the Union's last letter on June 4, in part as follows:
You also stated in your letter that you thought that the Employees'
Manual was a proper subject for a grievance of a general nature. To this
contract not adjusted in the preceding steps shall be submitted to arbitration under
the rules of the American Arbitration Association, provided, however, that
a. The Company may elect in any particular case to have the grievance or dispute
considered, before it is submitted to arbitration, by the President or a director of the
Company with the International President of the International Union or any one
of the Assistants to the International President, or the International Secretary of the
International Union, and, -
b By mutual consent of both parties the grievance or dispute may be submitted to
arbitration at any stage in the grievance procedure. The award of the arbitrator
shall be final and binding on both parties and the expenses of the arbitration shall
be borne equally by them.
A strike took place on October 15, 1945, which was concluded during the course of the
hearing. The 1943 contract contains a no-strike, no-lockout clause. The circumstances
surrounding the calling of the strike are hereinafter related.
'The Union particularly objected to the "voluntary quit" rule, which provided that an
unauthorized absence of 7 days by an employee would be treated as a voluntary quitting
of employment. No rule of this nature was in effect at the time the 1943 contract was
signed In addition to this rule, rules on the following subjects were included in the
Manual which were not included among the rules existing at the execution of the contract :
unauthorized absences,of less than 7 days; threatening or interfering with fellow employ-
ees , deliberately restricting output or persuading others to do so; the making of false or
malicious statements concerning any employee, the respondent, or its products ; loafing on
the job and repeated violations of conduct or safety rules.
The record also discloses that other rules existing at the time of the execution of the
contract were amended so as to increase the severity of the penalty for their infringement.
I
THE. TIMKEN ROLLER BEARING COMPANY 513
statement, we do not agree. It is a generally and widely recognized function
of management to prescribe the rules of conduct of employees in connection
with their employment.
You stated' in the last paragraph of your letter that you wished to protest
and discuss the forms which have been prepared in connection with "leaves
of absence." This is likewise a rule of conduct matter and in itself is not
a proper subject of grievance on the part of the Union.
Under the circumstances, we cannot see that any sound purpose would
be served in having the type of meeting you propose and we must therefore
decline to consider the matters referred to in your letter of May 31st as the
legitimate subject of a grievance of a general nature.
On June 13, the Union requested the American Arbitration Association to
arbitrate the issue. The respondent, although at first refusing to refer the
matter to arbitration, subsequently consented that there be submitted the ques-
tion of whether the matter was arbitrable within the meaning of the 1943 con-
tract. On July 2, the Union filed its original charge herein and later attempted to
withdraw from the arbitration proceedings. The arbitrator issued a decision
on November 10, 1944 holding, in effect, that these rules were simply a guide
for the benefit of employees and supervisors and were not "definitive," in that
these rules did not prejudice the right of the Union to protest any specific
penalty assessed He found, therefore, that the issuance of the Manual did not
constitute a violation of the terms of the contract between the Union and the
respondent. He did not decide whether or not the issuance of the Manual with-
out consulting the Union was a refusal to bargain. He specifically stated he had
interpreted the question only within the framework of the contract.
The respondent now contends that it has discharged its obligation to bargain
collectively on this issue by following the grievance procedure "to the terminal
point agreed upon in the contract."
(2) Overtime work
During the week following V-J Day, August 14, 1945, the respondent discon-
tinued its 48-hour schedule for employees in the Canton and Gambrinus plants,
with the exception of a number of employees in certain departments, and reverted
to a 40-hour week. About 25 percent of the employees in about 80 percent of the
departments worked overtime during the week beginning August 19. This num-
ber, instead of decreasing as contemplated, increased to the point where, by October
7, approximately 50 percent of the employees in approximately 95 percent of the
departments were working overtime. The respondent insists that employees
were not required to work overtime and that the foreman merely "offered" work
to employees who volunteered for it.'
8 G. H Turner, supervisor of labor relations, testified as follows concerning the method
of obtaining overtime work.
Q. Now, are you familiar with the matter of offering overtime _o employees in
various departments of both the bearing plant and the steel division in Canton and
Gambrinus?
A. Yes.
Q And on what basis, to your knowledge, was that offered to employees?
A On a voluntary basis, either daily or weekly.
Q. And by a voluntary basis, you mean what?
A. The employee is asked whether or not he will work overtime, and depending
upon his consent, he works or he does not work.
Q. Would there be any penalty involved if the employee failed to show up on one
of these days that overtime was offered'?
A. No there would not.
514 DECISIONS OF NA CTONAL LABOR RELATIONS BOARD
The Union was not consulted about this progressive increase in working hours
for a substantial percentage of the respondent ' s employees , nor about the method
of supplying its overtime needs. On September 10 the Union wrote the respond-
ent protesting the increased work schedule, and stating that the employees would
work the 48-hour schedule for a week, but that, beginning on September 17, "all
members will be instructed to report for work on the work schedules as provided
by the contract-five days per week, eight (8) hours per day, Monday through
Friday." No change in the respondent's work schedule back to a uniform 40
hours per week having occurred by Saturday, September 22, a day when employees
were generally asked to work overtime, a picket line was thrown around the
departments in controversy with the result that only about 2 percent of the
employees in these departments reported for work on that day.
The respondent urges as a defense that the employees were willing to work
overtime but that the Union refused to allow them to do so, and that since no
grievance was filed by any aggrieved employee, there was a failure on the part
,of the Union to resort to collective bargaining in the manner prescribed by the
contract between the parties.° -
(3) The grievance in Department-180
The processing of a grievance concerning an alleged change in the hours of
work of employees in Department 180 was interrupted by a strike This grievance
had gone through the four steps of the grievance procedure and 'a demand for
arbitration bad been made by the Union. On October 19 the respondent notified
the American Arbitration Association of the strike, asserting its belief that
the strike was called in breach of the Union's contract, stated that it did not
intend to proceed with performance under the contract, and requested that the
arbitration hearing be postponed until the strike was terminated. On No-
vember 19 the respondent wrote the Association and the Union advising them
that the respondent was ready to proceed with the hearing
The respondent, in its brief, urges in its defense that there was no refusal to
bargain, but "merely a proper, insistence that bargaining proceed in the manner
agreed upon " The respondent argues that the strike was in violation of its
contract with the Union and that the respondent was relieved of any duty to
bargain with the Union until its employees returned to work.
'The contract provisions concerning overtime are as follows :
The normal hours of work shall be eight ( 8) per day and forty (40) per week.
The daily hours of work shall be consecutive except for such rest periods as may be
provided in accordance with practices heretofore prevailing in the plants of the
Company.
There shall be no change in the daily hours of work unless such change be first
mutually agreed upon between the Company and the Union
Hours worked in excess of eight ( 8) consecutive hours or in excess of a total of
forty ( 40) hours in a work week shall be paid for at one and one-half times the
normal rate of pay. Overtime payment shall be made on the basis of either daily or
weekly overtime hours worked , but an employee shall not be paid both daily and
weekly overtime for the same overtime hours worked A normal work week shall
be five ( 5) consecutive work days within seven ( 7) consecutive days. By mutual
agreement between the Plant Grievance Committee and local plant management,
employees who fail to complete the average hours worked in the department in which
they are employed up to forty ( 40) hours in the five work days within the work
week, may be permitted , if work is available , in the department in which they are
regularly employed , to make up time lost on the sixth or seventh day within the
work week up to a maximum of forty ( 40) hours at their regular rates of pay without
the payment of overtime
Plant operations as far as possible will be arranged on the basis of three (3)
eight ( 8) hour turns per day, five (5) days per week, Monday throughO' riday.
THE TIMKEN ROLLER BEARING COMPANY 515
(4) The sub-contracting of work
For many years the respondent has followed a policy of sub-contracting certain
jobs, both maintenance and production, to other employers.10 A substantial
number of these jobs are done in the respondent's own plants by skilled craftsmen,
including millwrights, electricians, carpenters, painters, and welders, in the
employ of the sub-contractor. Inasmuch as they are not employees of the re-
spondent they are not within the unit represented by the Union. Others in
the same crafts, however, are employed by the respondent and are included
within the unit. Albert Donze, vice-president in charge of manufacturing, testi-
fied that these employees are not sufficient in number to do all the work on the
jobs requiring their particular skills
On October 11, 1945, the Union wrote the respondent requesting a collective
bargaining meeting to discuss' this issue The respondent, in a letter dated
October 15, 1945, denied the request on the ground that the practice of sub-
contracting work was exclusively a management affair and was not a proper
subject for discussion with the Union. In its brief, the respondent contends
that there is "nothing in the contract that precludes the Company from sub-
contracting work," and inquires : "How are the contract rights, the management
of the works and the direction of, the working forces, which are vested ex-
clusively in the Company, to be given any effect if the determination of how
work is to be done can only be resolved after there has been Union approval
on the subject?" It insists that "an employer need not discuss every phase of
the Company's business with the Union simply because a statement has been
made by the Union that contemplated Company action affects `condition(s) of
employment' . . . By this specious reasoning any matter can be made the
subject of collective bargaining."
(5) Insufficient employees in the 10-inch mill
On October 13, 1945, the respondent's employees on the night shift in the
10-inch mill in the Gambrinus plant quit work in protest against a shortage
of men on the shift. Here, as in the grievance relating to Department 180 the
respondent urges as a defense that the strike action taken by the Union serves
to free the respondent from any duty to bargain with the Union about the causes
of the strike until the employees return to work. The respondent says in effect
that it has the right to insist that bargaining be done in the orderly manner
contemplated by the agreement arrived at as the result of collective bargaining,
and that since no grievance was filed until after the strike the respondent was
not bound to discuss the matter prior to the filing of such grievance.
(6) The maintenance workers' schedule
Beginning on October 7, 1945, the respondent changed the work schedule of
maintenance employees in the bearing mills at Canton and Gambrinus with the
result that some of the maintenance work was required to be done on Saturdays
10 A list of 91 such sub -contractors was received in evidence , with whom the respondent
is now doing business , Albert Donze , vice-president in charge of manufacturing , testified
that "approximately $2,000 , 000 worth of tools and equipment were sub-contracted to out-
side concerns . Even back in 1919 and the early part of 1920 ." While the record contains
no evidence as to the value of work now performed by sub-contractors, apparently it has
increased rather than decreased At the time of the hearing approximately 200 men,
employees of at least 6 companies other than the respondent, were performing work of
various kinds in the respondent ' s plants.
712344-47-vol. 70-34
,516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Sundays." On Saturday, October 13, the employees affected by the change
were told to report for work on that day, and were advised that if they did
not show up they would not be permitted to work on the following Monday
No employees reported for work on Saturday. When they reported for work on
Monday, they were sent home.
The respondent defends its failure to discuss the change in its work schedule
with the Union, on the ground that since no grievances were filed on the subject
of the change in schedule and since a strike was called by the Union as the
result of the respondent's action in disciplining its employees, the respondent
was not bound to bargain with the Union until and unless the Union followed
the grievance procedure and called off the strike.
(7) The pit-crane hands
In September, 1945, a grievance was filed by certain employees in Department
199 concerning the practice of providing spell hands for pit crane operators. This
grievance was decided adversely to the Union by the foreman and superintendent
of the department, and on October 8 the Union requested a combined.Step 3 and
Step 4 meeting with C A. Blackmon, the respondent's superintendent of labor
relations. The respondent, on October 10, acceded to this request and a meeting
was set for October 18. The strike intervened on October 15. On the following
day the respondent wrote the Union that the meeting was "postponed, provided
employees on strike in our plants have not returned to work on their jobs by such
time." The strike not having been terminated, the meeting was not held on the
day scheduled. On November 19, 3 days after the termination of the strike, the
respondent advised the Union that the conference on the grievance could be
proceeded with "at a mutually convenient time after the National Labor Relations
Board hearing is concluded."
The processing of a grievance concerning an alleged change in the hours or
work of employees in Department 180 was similarly interrupted by the strike.
This grievance had gone through the four steps of the grievance procedure and a
demand for arbitration had been made by the Union. On October 19 the respond-
ent notified the American Arbitration Association of the strike, asserted its belief
that the strike was called in breach of the Union's contract, stated that it did not
intend to proceed with performance under the contract, and requested that the
arbitration hearing be postponed until the strike-was terminated. On November
19, the respondent wrote the Association and the Union advising them that the
respondent was ready to proceed with the hearing.
The respondent, in its brief, urges in its defense that there was no refusal to
bargain, but "merely a proper insistence that bargaining proceed in the manner
agreed upon." The respondent argues that the strike was in violation of its
contract with the Union and that the respondent was relieved of any duty to
bargain with the Union until its employees returned to work.
Conclusions
The respondent contends that the facts set forth above do not, when taken
together, amount to a failure on its part to bargain collectively with the Union.
The issues raised by the record, and argued extensively in the briefs filed by the
parties, reveal a wide divergence between the Union's conception,of the collective
bargaining relationship and that of the respondent. The undersigned believes
" The revised schedule for maintenance employees was the same as that which had been
In effect before the war.
THE TIMKEN ROLLER BEARING COMPANY 517
that the respondent fundamentally misconceives its obligations in the collective
bargaining process.1'
Many of the respondent's contentions may be disposed of by a reference to the
general principles underlying the collective bargaining relationship as they have
been developed by the Board and the Courts. With respect to the contention
that the execution of a contract is the "end result" of collective bargaining, and
its corollary that thereafter the Board has no jurisdiction to order an employer
to bargain, the Board has frequently held 13
that the execution of a collective contract does not end the process of collec-
tive bargaining, and that the interpretation and administration of a contract
already made and the settlement of disputes arising under any such contract
are properly regarded as within the sphere of collective bargaining.
That collective bargaining does not end with the signing of a contract has been
held by the Supreme Court in the Sands case," and by Circuit Courts of Appeals
in various cases. " In the Newark Morning Ledger case the court said :
There is nothing in the Act to indicate that its framers intended that its
force should be expended after it had once operated to cause an employer to
bargain collectively with his employees. In our view, if Congress had
intended that the duty to bargain collectively which it imposed should be
limited in duration-it would have so provided in clear and specific terms,
and that
collective bargaining is thus seen to be a continuing process by which, as the
law now recognizes, the relationship between the employer and the employee
is to be molded and the terms and conditions of employment frequently
modified along lines which are mutually satisfactory to all concerned.
Consistently with these principles, the Board has condemned refusal by
employers to bargain collectively concerning the disposition of grievances both
before '0 and after 17 execution of written agreements. The grievances thus found
12 The specific defenses of the respondent , previously set forth , are re -stated in its brief
in 3 "basic pioposition" .
(1) The purposes of the Act are to insure collective bargaining and the making of
collective bargaining agreements between employers and labor organizations certified
as representing the majority of the employees of such employers.
(2) It is not a purpose of the Act to supervise compliance with collective bargain-
ing agreements.
(3) It is not a purpose of the Act to condone or encourage unlawful conduct such
as breaches of collective bargaining contracts.
18 Matter of Consolidated Aircraft Corporation , 47 N. L. It. B. 694, at p . 706. See also,
Matter of Rapid Roller Co., 33 N. L. It. B 557; Matter of Carroll 's Transfer Company, 56
N. L. It. B 935; Matter of Hughes Tool Company , 56 N. L. R B. 981 ; Matter of U. S.
Automatic Corporation , 57 N. L. It. B. 124 ; Matter of The Alexander Milburn Company,
62 N. L It. B. 482
14 N. L. R. B. v Sands Mfg. Co., 306 U. S. 332.
35 See N. L R B v. Newark Morning Ledger Co., 120 F. ( 2d) 262 (C C. A 3), cert.
denied 314 U S 693, N L R B v Highland Shoe, Inc, 119 F (2d) 218 (C. C. A 1) ;
N L R B v Highland Park Mfg Co., 110 F (2d) 632 (C C. A 4)
1° Matter of Railway Bearing Co., Inc., 1 N. L. R B. 651 ; Matter of The Boss Manufac-
turing Company , 3 N. L. R B. 400 ; Mattes of American Hair d Felt Company , 19 N. L. It. B.
202, Matter of Hoosier Veneer Coin pony, et al., 21 N. L. R. B 907 , Matter of The Arundel
Corporation , 59 N. L R B. 505; Matter of Inter-City Advertising Co., 61 N L. It. B 1377;
Matter of Ross Gear and Tool Company , 63 N. L. It. B. 1012.
17 Matter of Rapid Roller Co., 33 N. L. It. B. 557 ; Matter of Hughes Tool Company, 56
N. L. It. B. 981 ; Matter of U. S. Automatic Corporation , 57 N. L. R B 124; Matter of
The Alexander Milburn Company , 62 N. L. It. B. 482.
518 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD
Jo be within the scope of collective bargaining have included changes in work
schedules, as in the Inter-City case, cited above. In that case the employer
rearranged the working hours of transmitter operators, a change which made
necessary the discharge of one operator . Later, another operator was trans-
ferred from work on the transmitter to the control room, and another employee
hired to take his place on the transmitter. These changes were made unilaterally
by the employer through arrangements with the individual employees concerned
and, in the instant case, without consulting the Union. The Board found that
the employer had failed to bargain collectively.
Without attempting generally to delimit the subject matter properly included
within the scope of collective bargaining,'e it seems apparent that the respondent's
system of sub-contracting work fray vitally affect its employees by progressively
undermining their tenure of employment in removing or withdrawing more
and more work, and hence more and more jobs, from the unit. Of equal concern
to the employees are the rules which regulate their everyday life in the factory,
and the hours they are asked or required to work. It is the respondent's duty to
sit down and discuss these matters with the Union when requested to do so.19
During such discussion it may develop, for example, that the Union will engage
to supply sufficient skilled labor in the crafts in question, so that more work
may be clone by the respondent's employees and less by workers outside the unit;
it might be that the respondent will convince the bargaining representative that
there is no reasonable alternative to a continuation of the respondent's present
practice in this respect; or some other and presently unthought of solution.agree-
able to both parties may suggest itself.
On none of the issues now dividing the parties is the respondent compelled to
reach an agreement with the Union Much less, as the respondent's brief seems
to imply, would it be required to accede in toto to the demands of the bargaining
,representative The requirement is that the respondent consult with the Union
and explore in good faith the possibility of reaching an agreement so that, in
conformity with the purposes of the Act, the matter may be removed, so far as is
possible, as a cause of Industrial strife.
The authority of the Union to represent the employees stems iron the fact
of its majority status, and is statutory rather than contractual in character. The
choice of a bargaining agent by a majority of the employer's employees does not ni
and of itself require that the employer make any change in,wages, hours of em-
ployment, or other conditions of work However, if he decides, subsequent to the
time the union is designated, that he wishes to raise or lower their rate of pay,
lengthen or shorten their hours of work, or institute a different system of -
seniority, he no longer remains. free simply to announce such new conditions and
rules as suit him Even though the union has not yet approached him for col-
1" It may be noted , however, that unions have come to bargain with employers on various
subjects which were formerly deemed , to be reserved as management prerogatives. In the
ladies' garment industry, agreements with the union "specify the conditions under which
an employer .may reorganize his business , or enter into another partnership , or send mate-
rials to other firms for fabrication, or introduce a work-week as opposed to a piece-work
basis of wage payments " Pierson, Collective Bargaining Systems (1 942) 32; Carsel, A
History of the Chicago Ladies Garment Workers Union ( 1940 ) 226-228 ; U. S. Bureau of
Labor Statistics, Bull. No 686 (1942 ) 214-216
In coal mining , the unions participate in the control of "All aspects of the productive
process which affect the miner ' s opportunity to earn a living ." Saffern, The Coal Miners'
Struggles for Industrial Status (1926) 359, 376
1" The sub -contracting of work was done pursuant to a policy adopted by the respondent
prior to the advent of the bargaining representative . Hence there is no question of unilat-
eral action taken without consultation with the Union in the first instance The failure
to bargain dates from October 15, 1945, when the respondent replied to the Union' s letter
of Octobei 11 on this subject
THE TIMKEN ROLLER BEARING COMPANY 519
lective bargaining conferences lie must notify it of a contemplated change and
offer to bargain with it about the matter20 Similarly, the employer can no longer
make the adjustment by individual, bargaining , as it attempted to do in this
case when it individually "offered" employees overtime work
The respondent's contention that the "management clause" in the 1943 con-
tract served to relieve it of the necessity for bargaining with the Union as to
such matters which may come under a broad interpretation of this clause, is
without merit. Without discussing whether or not more specific language in the
contract would have given the respondent the right to refuse to bargain as to such
matters as are found to be violations of Section 8 (5) herein, the undersigned
finds that the "management clause" as presently written cannot in any event
properly be construed to cover the situation here for the reason that it is not
specific but is, on the contrary, vague and uncertain To construe the phrases
"management of the works" and "direction of the working forces" as a grant of
power to the respondent unilaterally to change the working conditions or hours
of employment, would slake a nullity of Section 8 (5) of the Act It cannot be
supposed that the Union relinquished its right, granted by the Act, to bargain for
the employees at any time by such language as this.
It may be assumed, as the respondent has indicated, that "an employer need
not discuss every phase of the Company's business with the Union ..."
However, this may be, it is clear to the undersigned that its failure and refusal to
do so as to the matters herein involved is violative of the purpose of the Act.
Nor does the fact that none of the respondent's employees has filed a grievance
in connection with the overtime work dispute, or other disputes, affect the re-
spondent's responsibility to bargain upon such issues when requested to do so
by the Union It is doubtful that any employee of the respondent would feel
aggrieved by the there offer of overtime work which he was privileged to accept
or refuse The employees as a group, however, might consider themselves seriously
affected by a system which lengthened the work week foi some but not for others,
and might reasonably feel that their group solidarity was threatened by the
introduction within the group of a competition destructive of collective action.
As the Supreme Court pointed out in J. I. Case: 21
The practice and philosophy of collective bargaining lookS, with suspicion on
such individual advantage, . . . advantages to individuals may prove
as disruptive of industrial peace as disadvantages. They are a fruitful way'
of interfei ing with organization and choice of representatives ; increased
compensation, if individually deserved, is often earned at the cost of breaking
down some other standard thought to be for the welfare of the group, and
always creates the suspicion of being paid at the long range expense of the
group as a whole. Such discriminations not infrequently amount to unfair
labor practices. The workman is free, if he values his own bargaining posi-
tion more than that of the group, to vote against representation; but the
majority rules, and if it collectivizes the employment bargain, individual
advantages or favors will generally in practice go in as a contribution to the
collective result.
The court further pointed out in the Railroad Telegraphers case :.22
. . . exceptional situations often have an importance to the whole be-
cause they introduce competitions and discriminations that are upsetting
20 For an extended discussion of the relationship between,the employer and the union
after the designation of a union as collective bargaining representative , see- Majority
Rule in Collective Bargaining, by Ruth Weyand, in Columbia Law Review, Vol XLV, page
556 (July 1945)
21 J. I. Case Co. v. N. L. R. B., 321 U. S. 332, at p. 338.
22 The Order of Railroad Telegraphers v. Railway Express Agency, Inc ., 321 U. S. 342,
346-7.
520, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the entire structure. Hence effective collective bargaining has been
generally conceded to include the right of the representatives of the unit
to be consulted and to bargain about the exceptional as well as the routine
rates, rules, and working conditions . . . But the company did not
observe the right of the representatives- of the whole unit to be notified and
dealt with concerning a matter which from an employee's point of view may
not be exceptional or which may provide a leverage for taking away other
advantages of the collective contract.
In short, after the advent of the collective bargaining representative, not only
does unilateral action by the employer taken without consultation with the bar-
gaining agent, on any matter relating to rates of pay, wages, hours of employment,
or other conditions of employment, become' proscribed, but so does bargaining
with any individual employee.
With the certification of the bargaining representative, the establishment of
working conditions in a plant becomes, in effect, a governmental process. In
Steele v. Louisville d Nashville R. Co.,3 the court held, with respect to the Rail-
way Labor Act :
We think that the Railway Labor Act imposes upon the statutory repre-
sentative of a craft at least as exacting a duty to protect equally the interests
of the members of the craft as the Constitution imposes upon a legislature
to give equal protection to the interests of those for whom it legislates.
Congress has seen fit to clothe the bargaining representative with powers
comparable to those possessed by a 'legislative body both to create and restrict
the rights of those whom it represents . . .
Instead of performing only the limited function of periodically fixing the'rules
governing employment as the respondent views it, collective bargaining has
come to mean a system whereby employees participate through democratically
chosen representatives in the control of their conditions of employment, not
merely in making the rules but in their interpretation and execution. The sub-
stitution of this process for direct negotiations between employer and employee
eliminates the autocratic power of the employer and establishes in the plant
a form of industrial democracy, paralleling and implementing the political democ-
racy which the employee enjoys outside the plant. That the establishment of
working conditions in industry is, after the advent of the collective bargaining
representative, essentially,a governmental process, was noted by the Court in
N. L. R. B. v. Highland Park Mfg. Co .24 where it was . held :
The purpose of the written trade agreement is, not primarily to reduce
to writing settlements of past differences, but to provide a statement of
principles and rules for the orderlp government of the employer-employee
relationship in the future. The trade agreement thus becomes, as it were,
the industrial constitution of the enterprise, setting forth the broad general
principles upon which the relationship of employer and employee is to be
conducted. Wages may be fixed by such agreements and specific matters
may be provided for; bn* the thing of importance is that the agreement sets
up a modus vivendi, under which employer and employee are to carry on. It
may be drawn so as to be binding only so long as both parties continue to
give their assent to it; but the mere fact that it provides a framework
within which the process of collective bargaining may be carried on is of
incalculable value in removing the causes of industrial strife. If reason and
23 323 U. S. 192.
@4110 F. (2d) 632 (C. C. A. 4).
THE TIMKEN ROLLER BEARING COMPANY 521
not force is to have sway in industrial relationships, such agreements should
be welcomed by capital as well as by labor. They not only provide standards
by which industrial disputes may be^'adjusted, but they add dignity to the
position of labor and remove the feeling on the part of the worker that he
is a mere pawn in industry subject to the arbitrary power of the employer.
[Italics supplied.]
Nor are the obligations of the employer, as outlined above, changed by the
intervention of a strike. The exclusive right to handle grievances for employees
within the unit is not something which the respondent has granted the Union as
a concession, or in trade for a consideration, to be withdrawn if the consideration
fails, but a right given the bargaining agent by the Act. As the Board held in
the Columbian Enameling case," where the Union called the employees on strike
during the life of a contract containing a no-strike clause:
Employees do not cease to be such because they have struck. Collective
bargaining is an instrument of industrial peace. The need for its use is
as imperative during a strike as before a strike By means of it a settle-
ment of a strike may be secured.
To hold that the respondent was under no obligation to discuss with the Union
the grievances of employees on strike would be to relegate them to the position
of having to bargain individually with their employer, or to 'leave grievances
unredressed. Neither of these alternatives is tenable. The right of the re-
spondent's management to speak for the respondent on corporate matters would
not be affected by a contract violation by the management. So here, the Union
remained'the sole bargaining agent of the respondent's employees within the
unit, regardless of whether the strike of October 15 was in violation of the
Union's contract. If the respondent felt itself legally injured by the act of the
Union in calling the strike, it could have sought such redress as local or State
laws might have afforded it. It was not within its province to attempt to dis-
cipline the collective bargaining representative of its employees by refusing to
accord it the recognition guaranteed by the Act.
The undersigned finds that the respondent, by unilaterally issuing an em-
ployees' manual, or rule book,20 without consultation with the Union and by
refusing to discuss the matter with the Union ; by requesting the employees to
work overtime without consultation with the Union ; by unilaterally effecting a
change in the working conditions of the employees in Department 180 and re-
fusing to discuss the matter with the Union; by refusing to negotiate with the
Union regarding the sub-contracting of work; by refusing to bargain concerning
a lack of sufficient employees in the respondent's 10-inch mill ; by refusing to,
bargain concerning the working schedules of maintenance employees; and by
refusing to bargain with the Union with respect to the working schedules of pit
crane hands in Department 180, the respondent has failed and refused to bargain
collectively, and has thereby interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
25 N. L. R B. v. Columbian Enameling and Stamping Co., 306 U. S. 292 , affirming 96
Fed. (2d ) 948 (C . C. A 7), setting aside 1 N L . it. B 181 on other grounds. See also:
N. L. R B. v. Reed & Prince Mfg . Co., 118 F. ( 2d) 874 (C C A. 1), enforcing 12 N. L. it. B.
944, cert. denied 313 U. S 595
20 Cf. Matter of The Emerson Electric Manufacturing Company, 13 N. L R. B. 448.
In this case the complaint alleged the unilateral issuance of a rule book as a violation of
Section 8 ( 1) of the Act as constituting "interference , restraint , and coercion " The Board,
in the circumstances of the case , found that the respondent 's issuance of the rule book
was not violative of Section 8 (1) of the Act. Whether it constituted a refusal to bargain
in violation of Section 8 (5) of the Act was not in issue.
•522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Interference, restraint, and coercion
1. The bulletin board issue
In accordance with the -terms of the 1943 contract, the Union maintains
bulletin boards in the plant for notices "pertaining exclusively to Union affairs "
From time to time plant 'police have removed from these boards material which
the respondent's officers have deemed not to pertain "exclusively" to union
matters'? These removals have been made pursuant to the joint decision of
three of the respondent's higher supervisory employees, who instituted a com-
mittee for that purpose, without consultation with the Union.
The Union urges that the respondent's failure to consult with it prior to
removing material from the boards constitutes interference, restraint, and
coercion. The undersigned does not agree. True, the respondent's failure to
consult with the Union is of a piece with its narrow conception of its obliga-
tion to bargain collectively. But if the respondent will bargain in good faith
with the Union upon all natters pertaining to the working conditions of its
employees, controversies such as that pertaining to the bulletinf boards will not
be likely to arise, or, if they arise, are more likely to be resolved in a coopera-
tive spirit without the intervention of the Board. In the meantime, and in
the absence of any clear evidence that the respondent intended to disparage
the Union, the undersigned finds that by its actions in connection with the
bulletin boards the respondent did not engage in any unfair labor practice.
There is some evidence in the record that the respondent construed over-
strictly the check-off provisions of the 1943 contract, by insisting upon the
correct spelling of the names of union members submitted to it, and other
evidence that on isolated occasions certain foremen made disparaging remarks
concerning the Union and that one foreman instructed another supervisory
employee to watch a union member. The evidence falls short, however, of
supporting a finding that the respondent thereby interfered with, restrained,
and coerced its employees. It is hereinafter recommended that the complaint
be dismissed as to these matters.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring
in connection with the operations of the respondent described in Section I,
above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States and have led and tend to lead to labor
disputes burdening and obstructing commerce and the free flow of commerce.
V..THE REMEDY
Having found that the respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and
take certain affirmative action which the undersigned finds will effectuate
the policies of the Act.
It has been found that the respondent has refused to bargain-collectively
with the Union as the representative of its employees in an appropriate unit.
In order to effectuate the policies of the Act, the undersigned will recommend
that, upon request, the respondent bargain collectively with the Union as the
27 On one occasion the plant police, on instructions from management , removed an article
praising a candidate for political office favored by the Union and attacking his opponent.
On another occasion, appeals directed to members of the Union urging them to contribute
to Red Cross drives and'blood banks were similarly removed.
THE TIMKEN ROLLER BEARING COMPANY 523,
exclusive representative of its employees in the appropriate unit, in respect to
rates of pay, wages, hours, and other terms and conditions of employment, and
specifically that it bargain collectively with respect to the employees manual,
the question of overtime, the changing of working conditions in Department 180r
the sub-contracting of work, the lack of sufficient employees in the 10-inch mill,
the working schedules of the maintenance employees, and the working schedules
of the pit-crane hands.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following:
CONOLUSIONS OF LAW
1. United Steelworkers of America (C. I. 0 ), is a labor organization within
the meaning of Section 2 (5) of the Act.
2. All production and maintenance workers in the respondent's bearing, steel,
and tube plants at Canton, Ohio, its bearing, steel, and tube plants at Gam-
brinus, Ohio, and its plants at Wooster, Mt. Vernon, and Columbus, Ohio,
excluding foremen, assistant foremen, or supervisors in charge of any class of
labor, bricklayers, watchmen, guards, factory clerks or other clerical workers
and salaried employees, constitute a unit appropriate for collective bargaining
within the meaning of Section 9 (b) of the Act.
3. United Steelworkers of America (C. I. 0.), was on July 14, 1942, and at
all times thereafter has been, the exclusive representative of all the employees
in such unit for the purposes of collective bargaining, within the meaning of
Section 9 (a) of the Act.
4. By refusing to bargain collectively with United Steelworkers of America
,(C. I 0.), as exclusive bargaining representative of the employees in the
appropriate unit, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (5) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of Section
8-(1) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and,conclusions of law, the
undersigned recommends that The Timken Roller Bearing Company, its officers,
agents, successors, and assigns shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with United Steelworkers of America
(C. I. 0.) as the exclusive representative of all production and maintenance
employees in the respondent's bearing, steel, and tube plants at Canton, Ohio,
its bearing, steel, and tube plant at Gambrinus, Ohio, and its plants at Wooster,
Mt. Vernon, and Columbus, Ohio, excluding foremen, assistant foremen, or
supervisors in charge of any class of labor, bricklayers, watchmen, guards,
factory clerks or other clerical workers, and salaried employees, in respect to
rates of pay, wages, hours of work, and other conditions of employment, and
particularly with respect to the employees manual, the question of overtime,
the change of working conditions in Department 180, the sub-contracting of
work, the lack of sufficient employees in the 10-inch mill, the working schedules
of the maintenance employees and the working schedules of the pit crane hands,
upon all of which it has been found that the respondent has failed or refused
to bargain ;
(b) Unilaterally making changes without consulting the Union referred to
above with respect to rates of pay, wages, hours of work, and other conditions
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of employment and particularly with respect to such matters referred to in
paragraph 1 (a) above;
(c) Any other acts in any manner interfering with the efforts of United Steel-
workers of America ( C. I. 0.) to negotiate on behalf of the respondent 's employees
in the appropriate unit ;
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act;
(a) Upon request , bargain collectively with United Steelworkers of America
{C. I. 0) as the exclusive representative of all production and maintenance
employees in the respondent 's bearing , steel, and tube plants at Canton, Ohio,
its bearing , steel, and tube plants at Gambrinus , Ohio, and its plants at Wooster,
Mt. Vernon , and Columbus , Ohio, excluding foremen, assistant foremen, or super-
visors in charge of any class of labor , bricklayers , watchmen, guards, factory
clerks, or other clerical workers , and salaried employees , in respect to rates of
pay, wages , hours of work and other conditions of work, and specifically that
it bargain collectively with respect to the employees manual , the question of
overtime , the changing of working conditions in Department 180, the sub -contract-
ing of work , the lack of sufficient employees in the 10-inch mill , the working
schedules of the maintenance employees and the working schedules of the pit
crane hands ;
(b) Post immediately in conspicuous places throughout its Canton , Gambrinus,
Wooster, Mt . Vernon, and Columbus , Ohio, plants , copies of the notice attached
hereto and marked "Appendix A." Copies of said notice , to be furnished by the
Regional Director for the Eighth Region, shall , after being duly signed by the
respondent 's representative, be posted by the respondent immediately upon receipt
thereof, and maintained by it for sixty ( 60) consecutive days thereafter, in
conspicuous places, including all places where the respondent customarily posts
notices to its employees . Reasonable steps shall be taken by the respondent to
insure that said notices are not altered , defaced, or covered by any other material ;
(c) File with the Regional Director for the Eighth Region on or before ten (10)
days from the receipt of this Intermediate Report, a report in writing setting
forth in detail the manner and form in which the respondent has complied with
the foregoing recommendations.
It is further recommended that unless on or before ten (10 ) days from the
receipt of this Intermediate Report the respondent notifies the Regional Director
in writing that it will comply with the foregoing recommendations , the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
It is further recommended that the allegations of the complaint be dismissed
insofar as they allege that the respondent interfered with, restrained, and coerced
its employees by tearing down material from thei Union's bulletin boards, by
refusing to check off the dues of employees , by making statements in disparage-
ment of the Union, and by engaging in surveillance.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended , effective November 27,
1945, any party or counsel for the Board may, within fifteen ( 15) days from the
date of the entry of the order transferring the case to the Board , pursuant to
Section 32 of Article II of said Rules, and Regulations , file with the Board,
Rochambeau Building, Washington 25, D. C., an original and four copies of a
statement in writing,, setting forth such exceptions to the Intermediate Report or
to any other part of the record or proceeding ( including rulings upon all motions
or objections ) as he relies upon, together with the original and four copies of a
brief in support thereof. Immediately upon the filing of such statement of
THE TIMKEN ROLLER BEARING COMPANY 525
exceptions and/or brief, the party or counsel for the Board filing the same shall
serve a copy thereof upon each of the other parties and shall file a copy with
the Regional Director. As further provided in said Section 33, should any
party desire permission to argue orally before the Board, request therefor must
be made in writing to the Board within ten (10) days from the date of the order
transferring the case to the Board.
HORACE A. RuoKEL,
Trial Examiner.
Dated February 6, 1046.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
We will not refuse to bargain collectively with the United Steelworkers
of America (C I 0.) as the exclusive representative of the employees in
the unit described below.
We will not unilaterally make any changes with respect to rates of
pay, wages, hours of work, and other conditions of employment, and
particularly with respect to the Employees' Manual, the question of over-
time, the change of working conditions in Department 180, the sub-con-
tracting of work, the lack of sufficient employees in the 10-inch mill, the
working schedules of the maintenance employees and the working schedules
of the pit crane hands, without prior consultation with the Union referred
to above.
We will not in any manner interfere with the efforts of the United Steel-
workers of America (C. I 0.) to negotiate on behalf of our employees in
the appropriate unit. -
We will bargain collectively with United Steelworkers of America
(C. I. 0 ) as the exclusive representative of our employees in the bargain-
ing unit described below.
The bargaining unit is :
All production and maintenance employees in our bearing, steel and
tube plants at Canton, Ohio, our bearing, steel and tube plants at
Gambrinus, Ohio, and our plants at Wooster, Mt. Vernon and Columbus,
Ohio, excluding foremen, assistant foremen, or supervisors in charge
of any class of labor, bricklayers, watchmen, guards, factory clerks,
or other clerical workers, and salaried employees
------------------------------
Employer.
By ------------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.