Vickers, Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1965

153 N.L.R.B. 561 (N.L.R.B. 1965)

VICKERS, INCORPORATED 561
APPENDIX
NOTICE TO ALL OUR MEMBERS
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT engage in , or induce or encourage any individual employed by
United States Plywood Corporation, Kosmos Division or by Howard Logging
Company, or any other employer, to engage in a strike, or a refusal in the course
of his employment to use, manufacture, process, transport, or otherwise handle
or work on any goods, articles, materials, or commodities, or perform any serv-
ices, or threaten, coerce, or restrain USP or Howard, or any other employer,
where in either case an object thereof is to force or require USP to enter into any
agreement which is prohibited by Section 8(e) of the National Labor Relations
Act.
WE WILL NOT engage in, or induce or encourage any individual employed by
USP or Howard, or any other employer, to engage in a strike, or a refusal in the
course of his employment to use or handle any materials or perform any serv-
ices, or threaten, coerce, or restrain USP or Howard, or any other employer, by
a strike or picketing where in either case an object thereof is: (1) to force or
require USP to cease using, selling, handling, transporting, or otherwise dealing
in the products of or to cease doing business with Howard; and (2) to force or
require Howard to recognize or bargain with Local 2767 as the representative of
his employees unless Local 2767 has been certified as the representative of such
employees under the provisions of Section 9 of the Act.
PUGET SOUND DISTRICT COUNCIL, LUMBER & SAWMILL WORKERS,
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMER-
ICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
LUMBER & SAWMILL WORKERS' UNION, LOCAL 2767 AFFILIATED
WITH UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF
AMERICA, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Information regarding the provisions of this notice and compliance with its terms
may be secured from the Regional Office of the National Labor Relations Board,
327 Logan Building, 500 Union Street, Seattle, Washington, Telephone No. 682-4553.
Vickers, Incorporated and International Union of Electrical,
Radio and Machine Workers, AF L-CIO, Local 792. Cases Nos.
15-CA-363, 15-CA-f407, and 15-CA-f453. June 05, 1965
DECISION AND ORDER
On April 5, 1965, Trial Examiner Herbert Silberman issued his
Decision in the above-entitled proceeding, finding that the Respondent
had not engaged in unfair labor practices as alleged in the complaint
and recommending that the compl aint be dismissed in its entirety, as set
153 NLRB No. 45.
796-02 7-66-vol. 153-37
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forth in the attached Trial Examiner's Decision. Thereafter, the Gen-
eral Counsel and the Charging Party filed exceptions to the Trial
Examiner's Decision and supporting briefs.
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 [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
Board 1 has considered the Trial Examiner's Decision, the exceptions
and briefs, and the entire record in these cases, 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 hereby adopts as its
order the Order recommended by the Trial Examiner , and orders that
the complaint herein be , and it hereby is, dismissed in its entirety.
1 Member Brown concurs in the result
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges duly filed by International Union of Electrical Radio and Machine
Workers, AFL-CIO, Local 792, herein called the Union , against the Respondent,
Vickers, Incorporated , herein called the Company , separate complaints , dated Febru-
ary 10, 1964 , were duly issued in Cases Nos. 15-CA-2363 and 15-CA-2407 and a
complaint , dated July 30 , 1964, was duly issued in Case No 15-CA-2453. By an
order, dated July 30, 1964, the above numbered cases were consolidated for the pur-
poses of hearing and further disposition . The complaint in each case alleges that the
Respondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8(a)(1) and ( 5) and Section 2(6) and ( 7) of the National Labor
Relations Act, as amended , herein called the Act. Respondent duly filed answers to
said complaints which , as amended at the hearing , deny that it has engaged in the
alleged unfair labor practices . Thereafter, a hearing was held before Trial Examiner
Herbert Silberman at Jackson , Mississippi , on October 6 and 7, 1964. Briefs have
been received from the General Counsel and the Respondent.
Respondent has filed a request to correct the transcript of the testimony in this
proceeding. Said request is granted and it is hereby ordered that the transcript shall
be corrected by making the changes set forth in the attached Appendix A.
Upon the entire record in this case , and from my observation of the witnesses, T
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a division of Sperry Rand Corporation, is engaged in the production
of hydraulic valves, pumps, and motors for the aerospace industry at its plant in
Jackson, Mississippi, which is the only facility of Respondent involved in these pro-
ceedings. During the past 12 months, which period is representative of Respondent's
operations , in the course and conduct of its business , Respondent purchased and
received products and materials valued at in excess of $50,000, which were shipped
to Respondent's Jackson, Mississippi, plant, by suppliers located outside the State of
Mississippi . Respondent admits, and I find, that the Company is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
VICKERS, INCORPORATED 563
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization as defined in Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of events
In June 1957 the Union was certified by the National Labor Relations Board in
Case No. 15-RC-1516,as the exclusive collective-bargaining representative for the
following unit of employees:
All hourly paid production and maintenance employees employed at the Employer's
Jackson, Mississippi plant, including probationary employees, but excluding all
salaried office, office clerical and plant employees, cafeteria employees, technical
employees, the nurse, professional employees, guards, and supervisors as defined in
the Act.
During the time relevant to these proceedings the Company and the Union were
parties to an agreement, hereinafter referred to as the 1960 Contract, entered into
on October 26, 1960, covering said unit of employees. The contract was for an
initial term of 3 years with provision that it shall continue in full force and effect
beyond its expiration date and until it shall have been replaced by another agreement
or until it shall have been terminated after service of 10-day written notice to such
effect. In August 1963 the parties began negotiations for a new agreement to super-
sede the 1960 Contract. Approximately 33 bargaining sessions were held between
August 16, 1963, and midnight January 27, 1964, when a strike was called by the
Union, following due service on January 17, 1964, of notice terminating the 1960
Contract. The strike continued until April 27, 1964, when the parties entered into
a new collective-bargaining agreement, herein referred to as the 1964 Contract.
On September 4, 1963, while negotiations were in progress, the Company and the
Union entered into a stipulation for certification upon consent election, in Case No.
15-RC-2780, covering the employees in the following classification:
All manufacturing work-scheduling clerks employed by the Employer at its Jack-
son, Mississippi, plant, excluding all other classifications and guards and supervisors
as defined in the Act. (Said employees hereinafter are referred to as the schedulers.)
The consent-election agreement provided that:
If a majority of the employees in the voting group vote against representation,
they will be taken to have indicated their desire to remain unrepresented. If a
majority vote for representation they will be taken to have indicated their desire
to be included in the existing production and maintenance unit currently repre-
sented by International Union of Electrical, Radio and Machine Workers, AFL-
CIO, Local No. 792.
At the election held on September 13, 1963, a majority voted for the Union, and on
September 23, 1963, the certification of results of election was issued. The Company
construed the results of the election to mean, not only that the schedulers had become
part of the larger production and maintenance unit, but that the subsisting collective-
bargaining agreement covering the production and maintenance employees auto-
matically covered the schedulers. Accordingly, on September 18, 1963, the Company
wrote to the Union advising that, pursuant to paragrapl 162 of the 1960 Contract,'
it was establishing a temporary hourly rate for each such employee. As the
schedulers theretofore had been paid on a salary basis, the temporary rate set by the
Company for each scheduler was the hourly equivalent of the employee's monthly
salary. To the letter was attached a schedule showing the seniority of each scheduler
and his temporary hourly rate of pay. The letter further stated:
Within 30 days of the receipt of the official certification of the election by the
National Labor Relations Board, we will propose a permanent rate for this new
classification as provided in Paragraph 163 of the Agreement. However, since
the parties are currently in the process of negotiating a new Agreement, and the
present Agreement will expire before a final determination of this matter could
be reached under the Special Procedure (Wage Rate) Provisions of the Agree-
1 Paragraph 162 reads as follows:
When the Company establishes and places in use a new job classification or makes
a revision to an existing classification that materially affects the applied skills and
responsibilities of the operator, a temporary rate shall be established by the Com-
pany and written notice of the rate and job classification will be furnished to the
Local President.
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment , should the parties not be able to reach agreement on a permanent wage
rate, the Company would agree to consider the entire matter as a part of our
current bargaining if the Union so desires.
The consequence of the Company 's action was , on the one hand, to give to the
schedulers the benefits of the 1960 Contract , including the right to invoke the seniority
and grievance procedures thereof, and on the other hand to deprive the schedulers of
certain benefits they had as unrepresented salaried employees , to wit:
1. Life insurance coverage in the amount of $1,000. (Although the production
and maintenance employees were also covered by a group life insurance policy, the
schedulers , as salaried employees , had an additional $ 1,000 coverage Because the
employees were required to contribute to the payment of the premiums for such
insurance , the reduction in coverage for the schedulers resulted in a reduction in their
contributions.)
2. Possibility of being paid for excused absences.
3. Privilege of receiving and making personal telephone calls.
4. Privilege of parking in a more desirable area in the Company's parking lot.2
The Company 's letter was delivered to Union President John McDaniel who
accepted the suggestion of the Company 's personnel director , Robert S. Major, that
any disagreements concerning the schedulers should be discussed as part of the
general negotiations then in progress . Nevertheless , the next day the Union sent a
letter to the Company demanding that the Company restore to the schedulers the
benefits they had prior to the election.
Despite the Union's demand that the schedulers should be restored to their pre-
election status , there is no evidence that the Union was of the opinion, or had advised
the Company , that the 1960 Contract did not automatically apply to and cover the
schedulers . To the contrary , between September 25, 1963, and January 2 , 1964, the
Union prosecuted three grievances on behalf of schedulers in accordance with the
grievance procedure of the 1960 Contract . Furthermore , on September 26, 1963, in
the course of its negotiations with the Company , the Union agreed to change the
language of the recognition clause of the 1960 Contract by adding the schedulers to
the contractual unit of hourly paid production and maintenance employees. The
revised recognition clause reads as follows:
The Union having been certified by the National Labor Relations Board in case
No. 15-RC-1516 and case No. 15-RC-2780 as the collective -bargaining repre-
sentative for a unit of employees of the Company defined as `All hourly paid
production and maintenance employees employed at the Employer 's Jackson,
Mississippi plant, including probationary employees but excluding all salaried
office, office clerical and plant clerical employees , cafeteria employees , technical
employees , the nurse , professional employees , guards and supervisors as defined
in the Act ,' the Company recognizes the Union as the exclusive representative
of all the employees in such unit for the purpose of collective bargaining in
respect to rates of pay , wages, hours of employment and other conditions of
employment.
On October 22, 1963, the Company and the Union entered into a stipulation for
certification upon consent election , in Case No . 15-RC-2816, for the following
employees:
All schedule follow up men employed by the Employer at its Jackson, Mississippi,
plant, excluding all other classifications and guards and supervisors as defined in the
Act. (Said employees are hereinafter referred to as the expediters.)
The consent -election agreement , as in the earlier case, provided that a majority
vote for the Union will be taken to indicate a desire on the part of the expediters to be
included in the existing production and maintenance unit. The Union won the elec-
tion, which was held on October 31 , 1963, and the certification of results of election
was issued on November 8, 1963 The parties ' actions following the election for the
expediters paralleled their conduct after the election for the schedulers About
November 4, 1963 , the Company notified the Union that it was going to treat the
expediters as part of the production and maintenance unit Thereafter , as in the case
of the schedulers , a grievance on behalf of an expediter was processed under the
grievance provisions of the 1960 Contract .3 In addition , on January 24, 1964, the
2 There is insufficient evidence in the record from which to conclude that the aggregate
value of the benefits taken away from the schedulers exceeded the value of the benefits
given to them by reason of the change in their status
3 One of the grievances filed on behalf of a scheduler protested action of the Company
in assigning him to do "salary work," and a grievance filed on behalf of an expediter
protested action by the Company in assigning a salaried employee to do an hourly paid
job, to wit, a job normally assigned to the expediters.
VICKERS, INCORPORATED 565
Union agreed to further change the recognition clause of the 1960 Contract to include
the expediters in the unit of hourly paid production and maintenance employees. As
changed, the recognition clause, in pertinent part, reads as follows:
The Union having been certified by the National Labor Relations Board in case
No. 15-RC-1516, case No. 15-RC-2780, and case No. 15-RC-2816, as the
collective bargaining representative for a unit of employees of the Company
defined as `All hourly paid production and maintenance employees ....' 4
Despite approximately 33 meetings which were held prior to the strike and the
absence of evidence that the Company at any time refused to discuss fully all ques-
tions raised by the Union, the General Counsel contends that the Company did not
negotiate in good faith for the schedulers and expediters. The first discussion about
these groups occurred very soon after the election for the schedulers when, at a
meeting held on September 16, 1963, Union representative Ben Juley advised the
Company representatives "that we would negotiate on the schedulers after we had
part of ... the Union's [contract] proposals resolved ...." Subsequently, another
Union representative, Albert E. Fenton, about the middle of October, informed
personnel director Major that the Union will submit its proposals concerning the
schedulers after it completes its studies of their job. However, Fenton testified that
on many occasions he requested the Company to restore to the schedulers the benefits
which had been taken away from them after the September election.
The Union's first specific proposal concerning the schedulers was made on Octo-
ber 23. The Union proposed a wage scale for the schedulers ranging from a min-
imum of $2 per hour to a maximum of $2.70 per hour and, in addition, restoration of
all the benefits they previously had as salaried employees. At the next meeting, held
in the morning of October 25, the Union resubmitted the same proposal. The Com-
pany rejected the Union's proposal and during the afternoon session on the same day
the Company made a counterproposal. The Company proposed a wage range for the
job of from a minimum of $1.53 per hour to a maximum of $2 03 per hour with a
total of 10 progression steps between the lowest and highest figure. This proposal
contemplated that the schedulers would not receive any of the special benefits they
formerly had as salaried employees. The maximum rate proposed by the Company
was lower than the rate then being paid to some schedulers. As to such employees
the Company's proposal was to continue them at their current rates, which would be
considered as red-circle rates. Those schedulers who were being paid at or in excess
of the proposed maximum rate for the job would receive no wage increase. The
schedule attached to the Company's letter of September 18, 1963, shows that, as of
such date, of the 21 schedulers, 12 were being paid between $1.63 per hour and $1.89
per hour and 9 were being paid between $1.98 per hour and $2.24 per hour. Thus,
under the Company's proposal nine schedulers would receive no wage increase as a
result of the pending negotiations or an increase in an amount less than the amount of
the across-the-board increase the Company was offering the production and mainte-
nance employees. During the discussion of the Company's proposal, the Union
argued that if the schedulers' job was as simple as the Company representatives con-
tended, then it was not necessary to have so many progression steps. The Company
accepted this argument and submitted a revised proposal for the schedulers which
proposed a rate range of from a minimum of $1.70 per hour to a maximum of $2 per
hour in six progression steps. The Union rejected th., offer. The Company did not
thereafter recede from its position regarding the schedulers (and later maintained
the same position regarding the expediters) and the 1964 Contract includes as the
rate range for the schedulers (and expediters) the Company's revised offer which was
made at the October 25 meeting.
At a meeting held on November 7 the Union made its second proposal regarding
wage rates for the schedulers by proposing a range of from $1.93 per hour to $2.23
per hour. The Company rejected this proposal. In so doing the Company explained
the basis for its rejection. Company representatives pointed out that the rate initially
proposed by the Union for the schedulers was equal to the rate for tool-and-die
makers and the new proposal was for a rate equal to the rate for production
machinists, but the job being performed by the schedulers was not comparable to
either of those two jobs; they suggested that the rate which should be set for the
schedulers -hould be in line with the rate for other classifications performing com-
parable duties.
Following the election for the expediters, at a meeting held on November 13, the
Union proposed a rate range for these employees of from $2.20 per hour to $2.60
This second revision of the recognition clause was incorporated verbatim in the 1964
Contract.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
per hour in six progression steps. The Company rejected this proposal and in turn
proposed a rate change for the expediters identical to the one it had proposed for the
schedulers.5
At the January 7, 1964, session the Union representatives withdrew their demand
that the schedulers and expediters should receive the benefits they had as salaried
employees. At the next meeting, held on January 16, 1964, the Union proposed a
wage scale for the schedulers and expediters even higher than they had proposed on
November 7. Following discussion regarding the skills of these two categories of
employees and the Company's contention that the rate being proposed by the Union
was equal to that of toolmakers, the Company rejected the Union's proposal. At the
meeting held on January 24, the Union proposed a maximum rate of $2.13 per hour
for the schedulers and a maximum rate of $2.18 per hour for the expediters, however,
the Union now renewed its demand that the special benefits which the schedulers and
expediters had when they worked on a salary basis should be restored to them.
The negotiations concerning the expediters and schedulers also involved other
terms of employment in addition to wages. Between October 2 and October 30, 1963,
there were discussions concerning the seniority of the schedulers and their bumping
privileges which questions were satisfactorily resolved.
At all times during the negotiations, the Union acknowledged that the terms and
conditions of employment for the schedulers and expediters were proper subjects of
bargaining, despite the alleged unilateral action which the Company had taken.
Thus, on October 14, 1963, the Union wrote the following letter to the Company:
This is to acknowledge receipt of your letter of September 18, 1963. The
Union stands ready, as in all matters, to negotiate so as to reach an amiable
settlement of any issue which might arise out of our mutual relationship.
As in all matters we as you do, reserve all rights to freedom of action without
prejudice, until the matters under negotiations result in an acceptable settlement.
When asked by Personnel Director Major what he meant by his letter, Union Presi-
dent McDaniel told Major that "it was all right to handle the matter of the schedulers
in our current negotiations that . . . they didn't want to give up any rights that they
had in their charges before the Board."
In connection with the Company's proposals for the schedulers and expediters,
Personnel Director Major testified that, in accordance with the terms of the 1960 Con-
tract, the Company was seeking to establish rates for these classifications which would
be related to and based upon the rates being paid to other classifications performing
work requiring the exercise of comparable skills and responsibilities. Many of the
schedulers and expediters were older employees who previously held more responsible
positions which had been eliminated in the course of a reorganization of the Com-
pany's operations. When they were transferred to the less responsible positions of
scheduler or expediter the Company did not reduce their salaries. Therefore, at the
time of the negotiations, "these employees were already red circled as salaried employ-
ees." While on the one hand, the Respondent adduced testimony, summarized above,
explaining the basis for the proposals which the Company made for the schedulers
and the expediters, on the other hand, there is no evidence in the record either (1) that
the Union's counterproposals had any reasonable relationship to the Company's wage
structure or to the wage rates being paid or proposed for other classifications of
employees doing work of comparable skill and responsibility, or (2) impugning in
any way the Respondent's assertion that the rates which it proposed, and which
finally were incorporated in the 1964 Contract, were in line with the rates being paid
to other classifications doing comparable work.
The last bargaining session between the parties prior to the strike was held on
January 27, 1964. At this meeting there was a mutual acknowledgement by the
Union and the Company that their negotiations had reached a complete impasse con-
cerning economics. After notice to the Union, the Company on February 3, 1964,
placed in effect for those employees who did not join the strike the economic improve-
ments contained in its last proposal to the Union The Union by letter dated Febru-
ary 1, 1964, advised the Respondent that it objected to the Company taking such
action.
B. The issues as framed by the complaints
The complaint in Case No. 15-CA-2363 alleges that the schedulers constitute an
appropriate unit within the meaning of Section 9(b) of the Act and that, in violation
u No evidence was adduced at the hearing as to the wage rates which were being paid
to the expediters at the time the negotiations were taking place Thus, there is no
evidence upon which any finding can be made, that any of the expediters were being
paid at a rate equal to or greater than the maximum rate proposed by the Company.
VICKERS, INCORPORATED 567
of Section 8(a)(1) and (5) of the Act, the Company has refused to bargain col-
lectively with the Union as the exclusive repre:°ntative of all the employees in said
unit because:
(a) About September 16, 1963, the Company unilaterally changed various
terms and conditions of employment of the employees in said unit without prior
notice to and bargaining with the Union;
(b) Since said date the Company has refused to bargain with the Union con-
cerning the unilateral changes, and
(c) Since said date the Company has maintained and given effect to such
unilateral changes.
The complaint in Case No. 15-CA-2407 is almost identical to the complaint in
Case No. 15-CA-2363 except that the unit of employees involved is the expediters,
and that the alleged unilateral changes were effected on November 5, 1963.
The complaint in Case No. 15-CA-2453 alleges that the Union is the exclusive
collective-bargaining representative of three separate units of the Respondent's
employees, namely, a unit of schedulers, a unit of expediters and a unit of all hourly
paid production and maintenance employees; that Respondent has violated Sections
8(a)( I) and (5) of the Act by refusing to bargain collectively in good faith with the
Union for the schedulers and for the expediters since September 13 and October 31,
1963, respectively, and, following a strike which began on January 28, 1964, by
making effective on February 3, 1964, unilaterally and over the objections of the
Union economic improvements for its nonstriking employees; and that the strike was
caused and/or prolonged by reason of Respondent's alleged unfair labor practices.
C. Conclusions
General Counsel's theory in these cases, as expressed in his brief, is that Respondent
violated Section 8(a) (5) and derivatively Section 8(a) (1) of the Act when, following
the respective elections for the schedulers and expediters, it determined unilaterally
that these groups should be treated as constituting new job classifications within the
production and maintenance unit covered by the 1960 Contract and established rates
of pay and other conditions of employment for these employees in accordance with
the terms of the agreement and deprived them of benefits they previously enjoyed as
salaried employees. There is no contention that the changes effected were not fairly
made under the terms of the 1960 contract. The alleged offense is only that Respond-
ent had no right to make any changes without first bargaining about the matter with
the Union. General Counsel further contends that during the parties' negotiations
Respondent maintained a "take-it-or-leave-it" position regarding the schedulers and
expediters and therefore did not bargain in good faith with respect to these two
groups. Finally, General Counsel asserts that because of the Company's alleged
unfair labor practices no genuine impasse existed at the time the Union called its
strike against the Respondent on January 28, 1964, and, therefore, absent an impasse,
Respondent further violated Section 8(a) (5) of the Act when on February 3, 1964, it
placed into effect, despite the opposition of the Union, its last offer to the Unions
In large part General Counsel's arguments are premised upon extravagant asser-
tions of fact unsupported by the record evidence. Thus, in his brief he contends.
1. "At the time of the strike on January 28, 1964, the parties had reached agree-
ment on most items." However, proof was not offered showing the total number
of separate items which were the subjects of negotiation between the parties or the
number of such items which had been resolved by the time the strike began. Although
9 The complaints in these cases are drafted in such manner that one might understand
that the Respondent is accused of violating the Act by refusing to negotiate for the
schedulers and the expediters as separate appropriate bargaining units after demand for
independent bargaining had been made by the Union However, General Counsel does not
urge this argument in his brief, and in his oral statement of position at the hearing, he
specifically disclaimed that he is making any such contention. Furthermore, the Union
at no time requested separate bargaining for the schedulers and expediters Instead the
parties bargained for these two groups as part of their negotiations for the entire pro-
duction and maintenance unit. Also, the Board's action in the respective representation
proceedings was not to establish separate appropriate units for the schedulers and ex-
pediters but was to add these classifications to the existing production and maintenance
unit. Thus, the certification of results of election in Cases Nos 15-RC-2816 and 15-RC-
2780 reads as follows: "IT IS HEREBY CERTIFIED that the said organization may
bargain for the employees in the above-named category as part of the existing production
and maintenance unit which it currently represents "
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Personnel Director Major testified without contradiction that at the last bargaining
session before the strike the parties acknowledged to each other that they were "at a
complete impasse on economics," this testimony does not establish that "the parties
had reached agreement on most items."
2. "The principal disagreements which precipitated the strike were wages and the
Company's adamant position with respect to the Schedulers and Expediters." The
record does not uphold this assertion. On January 17, 1964, the Union served the
Company with written notice terminating the existing collective-bargaining agreement
10 days from said date, which in effect was notification to the Company of the
Union's intention to go on strike at the end of such 10-day period. No testimony
was adduced as to why the Union served such notice. Assuming that the Union called
the strike because of its dissatisfaction with the progress of negotiations, no proof
was offered at the hearing as to the number of unresolved subjects as of the date the
strike notice was given or which of these subjects were sufficiently important to the
Union to induce strike action. More specifically relating to the issues in these cases,
there is no evidence that the differences between the Company and the Union con-
cerning the schedulers and expediters had any substantial influence the Union's deci-
sion to strike. Furthermore, General Counsel erroneously treats the differences
between the Company and the Union concerning the schedulers and expediters as
something separate and apart from the parties' differences concerning wages. At the
January 7, 1964, meeting, the Union withdrew all separate and special demands for
the schedulers and expediters and the only area of difference between the Union and
the Company concerning these two classifications of employees when the strike
notice was given was with respect to the rate ranges for the jobs. This was a dis-
agreement as to wages because, as a practical matter, the only dispute between the
parties concerned the amount of wage increase the employees in these classifications
would receive.? As the parties had not reached agreement upon the wage increase for
the other classifications of employees in the production and maintenance unit the
disagreement between the Company and Union concerning the increase for the
schedulers and expediters was of the same nature as the disagreement between the
parties concerning the increase for the other employees. For this reason also, there
is no basis for General Counsel's assertion that a separate and distinct reason for
the strike was the disagreement between the parties concerning the schedulers and
expediters.
3. The Company did not bargain in good faith concerning the conditions of employ-
ment for the schedulers and expediters but "maintained a `take-it-or-leave-it' attitude
with respect to these classifications." The record does not support this contention.
Following the Union's first proposal for the schedulers, the Company submitted a
counterproposal on October 25, 1963 As a result of the discussion concerning
Respondent's proposal, the Company on the same day submitted a revised proposal
for the schedulers. The Union thereafter submitted three additional proposals for
the schedulers (and one for the expediteis after the election for that classification
had been held). However, one of the three proposals could not have been seriously
advanced because it was a proposal for an increase larger then the increase suggested
in the Union's next proceeding proposal. In addition, the Union's first proposal was
purely exploratory insofar as it was suggesting increases for the schedulers of up to
25 percent. Thus, the situation is that each party advanced two serious proposals
to the other. If good-faith bargaining is measured by the number of proposals and
counterproposals offered by each party to the other, then on that basis, the Company
was no less sincere than the Union in seeking to arrive at an agreement for the sched-
ulers and expediters. However, good-faith bargaining is not determined by an
arithmetic comparison of the number of proposals and counterproposals each of the
parties makes. There are no mathematical criteria which can be mechanically applied
to measure the extent of a party's good-faith participation in collective-bargaining
negotiations. Good-faith bargaining depends upon subjective considerations, namely,
whether there is a sincere desire to achieve a mutually acceptable agreement. Person-
nel Director Major testified that during the negotiations the Company explained to
the Union the basis for its proposals for the schedulers and expediters, specifically,
that it was proposing a rate range for these jobs in line with the rates proposed for
other classification of employees exercising comparable skills and responsibilities.
7 Thus, Union representative Ben Juicy testified that the Union's proposal at the Janu-
ary 11 or 12 meeting was based upon the actual wages then being paid the schedulers
and expediters in order to obtain for these employees the same wage increase as for the
other employees in the unit represented by the Union.
VICKERS, INCORPORATED 569
No evidence was adduced which in any way impeaches this testimony. On the
other hand, no explanation was offered at the hearing, or so far as the record shows
during the parties' negotiations, as to the basis for the Union's demands. Thus, the
record suggests that while the Company was seeking to establish wage rates for the
schedulers and expediters on some rational basis which would comport with the
general wage structure in the plant, the Union was merely advancing arbitrary pro-
posals unrelated to reasonable criteria for making wage determinations. Accordingly,
because the Company at all relevant times was willing to negotiate with the Union
concerning the schedulers and expediters and because there is no evidence that the
Company was unreasonable in rejecting the Union's various proposals and adhering
to its last proposal for these employees, I find that General Counsel has failed to
prove that Respondent was unlawfully adamant in its negotiations concerning the
schedulers and expediters.
4. "The motive of the Company in taking this adamant position with respect to the
Schedulers and Expediters ... was for the purpose of `punishing' these employees for
selecting the Union as their bargaining representative." This is a gratuitous statement
without any record support whatsoever.
5. "When the Expediters chose to be represented by the Union on October 31,
1963, the Company immediately proposed that the Expediters be covered by the
same terms and wage proposals as it proposed for the Schedulers on October 25. The
Company did not deviate from this position at any time prior to the strike." I assume
General Counsel is contending that such position on the part of the Company was
incompatible with its statutory collective-bargaining obligations. However, the
record shows that there was a reasonable basis for treating both classifications alike.
Union Representative Fenton testified, "Our proposal for the second group (expe-
diters) was . . . the same as [for] the first group (schedulers), we said that the two
were very closely related and, in our opinion, the one proposal would cover both
groups." Thus, no incriminatory inference may be drawn from the fact that the
Company proposed to treat the expediters and schedulers the same particularly as the
Union did not challenge but concurred in such approach.
For the reasons stated above I find that General Counsel has not proved that
Respondent failed to confer in good faith with the Union concerning wages, hours,
and other terms and conditions of employment for the schedulers and expediters.
However, the absence of subjective bad faith on the part of the Company in its
negotiations with the Union does not necessarily determine in favor of the Respondent
the question of whether its unilateral changes in the employment status of the sched-
ulers and expediters constituted a violation of the Act. The objectives of Section
8(a) (5) can be frustrated as much by unilateral action which circumvents the duty
to negotiate as by a flat refusal to bargain.8 On the other hand, voluntary adherence
to and implementation of a valid and lawful collective-bargaining agreement stabilizes
bargaining relationships and promotes the purposes sought to be achieved by the Act.
Following the respective elections held in September and October 1963, the sched-
ulers and expediters became part of and were merged into the production and mainte-
nance unit represented by the Union. The applicable consent-election agreements
specifically provided that "if a majority vote for representation they will be taken to
have indicated their desire to be included in the existing production and maintenance
unit currently represented by" the Union, and the certification issued by the Board
provides that the Union "may bargain for the employees in the above-named category
as part of the existing production and maintenance unit which it currently repre-
sents." 9 Respondent argues that the schedulers and the expediters constituted new
job classifications within the existing unit of "hourly paid production and mainte-
nance employees" and therefore the provisions of the 1960 Contract (paragraph 162,
et seq.) applying to new job classifications covered these employees. Accordingly,
Respondent contends that the unilateral actions which it took were required by the
terms of the agreement and constituted voluntary observance thereof. General
Counsel argues that the jobs of the schedulers and the expediters were not new classi-
8 N.L.R.B. v. Benno Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U S 736, 743.
9 The production and maintenance unit certified in 1957 In Case No. 15-RC-1516 [117
NLRB 1767], was defined by the Board as including "All hourly paid production and
maintenance employees . .. Respondent contends that when the schedulers and ex-
pediters were added to the production and maintenance unit, in order to comply with
the Board 's description of the unit , the Company was compelled to change their status
from salaried employees to hourly paid employees . As the issues in these cases can be
decided on other grounds , I shall not pass upon the merits of this contention.
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fications within the bargaining unit, and that "by no stretch of the imagination can
this [paragraph 162 of the 1960 Contract ] be construed as applying to the Schedulers
and Expediters." He further contends, "It is obvious the Contract provisions were
intended to cover new classifications of employees , new skills or new departments
which were not on the Company's payroll but which might come into existence during
the period of the contract, and which groups would be automatically covered by the
contract."
I do not agree with General Counsel that his construction of the 1960 Contract is
obviously correct.10 I find that Respondent's contrary interpretation of the 1960
Contract not only was reasonable ( regardless of whether it was correct ) but also was
an interpretation which found tacit support from the Union's conduct. First, the
Union processed grievances on behalf of schedulers and an expediter under the
grievance provisions of the agreement. Second, on September 26, 1963, before any
charges were filed in these cases, the Union and the Company agreed to change the
recognition clause in their agreement by adding the schedulers to the contractual unit
of "hourly paid production and maintenance employees" (and on January 24, 1964,
agreed to another similar change by adding the expediters to the unit).
The dispute between the Union and the Company which gives rise to these proceed-
ings is concerned with the narrow question of whether the Company correctly inter-
preted the phrase , "establishes and places in use a new job classification," found in
paragraph 162 of the 1960 Contract, to include the jobs of schedulers and expediters,
which were not new job classifications in the plant but were new job classifications
within the contractual unit . If Respondent was correct in its interpretation , then there
can be no unfair labor practices by reason of the Company 's application of the agree-
ment's terms to the schedulers and expediters after they had been added to the con-
tractual bargaining unit because in such case Respondent was merely fulfilling its
lawful contractual obligations . Thus, the situation here, involving as it does only a
question of contract interpretation and not any intransigency on the part of the
Company, is quite unlike N.L.R B v. Crompton-Highland Mills, Inc., 337 U.S. 217
or N.L.R.B. v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co. 369 U.S. 736,
or the cases cited by General Counsel in his brief.
The Board is not the proper forum for parties seeking an interpretation of their
collective -bargaining agreement . Where , as here, an employer has a sound arguable
basis for ascribing a particular meaning to his contract and his action is in accordance
with the terms of the contract as he construes it,11 and there is "no showing that the
employer in interpreting the contract as he did, was motivated by union animus or was
acting in bad faith ," the Board ordinarily will not exercise its jurisdiction 12 to resolve
a dispute between the parties as to whether the employer 's interpretation was correct.13
10 General Counsel's argument is based upon a strict and literal construction of the
language of paragraph 162 of the 1960 Contract His brief does not consider the effect,
If any , of other sections of the agreement upon paragraph 162. However , relevant to
whether the 1960 Contract automatically applied to the schedulers and expediters when
they were added to the production and maintenance unit , is paragraph 1 which states
that the purpose of the agreement is "to establish wages , hours and other condition of
employment for employees covered by this Agreement," and paragraph 2, the recognition
clause, which describes the agreement 's coverage as including all production and main-
tenance employees within the unit certified by the Board Furthermore , labor contracts
are not always drafted with the same preciseness as are commercial agreements and In
order to give effect to the intent of the parties to a collective-bargaining agreement it is
often necessary to interpret its language more liberally than would be done in the case
of a commercial agreement John Wiley & Sons , Inc. v. David Livingston, 376 U.S.
543, 550.
11 United Telephone Company of the West, and United Utilities , Incorporated, 112 NLRB
779, 781
12A breach of contract is not an unfair labor practice, Assn. of Westinghouse Salaried
Employees v Westinghouse Electric Corp , 348 U S. 437 , footnote 2. However , the Board
is not divested of jurisdiction to remedy an unfair labor practice because the conduct com-
plained of may also have violated the terms of a collective -bargaining agreement Section
10(a) of the Act
13 National Dairy Products Corporation, Detroit Creamery Division, 126 NLRB 434.
See also Morton Salt Company , 119 NLRB 1402; Cloverleaf Division of Adams Dairy Co.,
147 NLRB 1410 . The Union here , had it wished to do so , could have sought arbitration,
in accordance with the grievance procedures of the 1960 Contract , of its dispute with
Respondent However, instead , the Union agreed to discuss its disagreement with the
Company as part of their general negotiations.
VICKERS, INCORPORATED 571
As the Board stated in Consolidated Aircraft Corporation, 47 NLRB 694, 706, enfd.,
141 F. 2d 785 ( C.A. 9), "it will not effectuate the policy of `encouraging the practice
and procedure of collective bargaining ' for the Board to assume the role of policing
collective contracts between employers and labor organizations by attempting to
decide whether dispute, as to the meaning and administration of such contracts con-
stitute unfair labor practices under the Act." Influencing the Board 's decision in the
Consolidated Aircraft case was the fact that the series of unilateral decisions com-
plained of as being unfair labor practices was not "part of a conscious campaign on
[respondent's] part to undermine the authority and prestige of the Union as the col-
lective bargaining representative of the respondent's employees or to evade the
respondent's obligation to recognize and deal with the Union as such representative."
In these proceedings not only is there an absence of evidence that Respondent was
seeking to undermine the authority and prestige of the Union as the collective-
bargaining representative of its employees or to evade its obligations to recognize and
deal with the Union but the facts support the opposite conclusion, namely, that the
Respondent at all relevant times was willing to and did confer with the Union as to
all subjects raised by the Union in their negotiations Union President John
McDaniel specifically agreed to handle questions concerning the schedulers at the
negotiations which were then in progress. (This agreement, after the expediters'
election, was extended by the conduct of the parties to cover that group also.) Their
differences were resolved, although perhaps not the enti*e satisfaction of the Union,
during the course of their bargaining, and the terms of their agreement are included
in their 1964 Contract. Thus, particularly applicable to this case is the Board's obser-
vation in Crown Zellerbach Corporation, 95 NLRB 753, 754, "that the stability of
labor relations which the statute seeks to accomplish through the encouragement of
the collective bargaining process ultimately depends upon the channelization of the
collective bargaining relationship within the procedures of a collective-bargaining
agreement." 14 Under all the ciicumstances, I find that Respondent's unilateral
changes in the status of the schedulers and expediters from salaried employees to
hourly paid employees did not constitute an unlawful refusal to bargain with the
Union.
The final subject for consideration is whether the Respondent acted unlawfully by
putting into effect on February 3, 1964, the improvements in the tei ms of employment
which theretofore, during the parties' negotiations, had been offered to and had been
rejected by the Union. In his brief General Counsel argues, "it is submitted that by
the method and attitude taken by the Company in bargaining with respect to the
Schedulers and Expediters and by making unilateral changes in their working condi-
tions immediately after their respective elections , the Company engaged in bad-faith
bargaining. It necessarily follows that since the Company engaged in bad-faith bar-
gaining in violation of Section 8(a)(1) and ( 5) of the Act , it cannot maintain its
position that the parties had reached an impasse in bargaining at the time the strike
began." As I have found, contrary to General Counsel, that the Company had not
engaged in bad-faith bargaining with respect to the schedulers and expediters and as
there is no contradiction of the testimony of personnel director Major that at the
January 27 meeting both the Union and the Company agreed that they were at an
impasse, I find that the Company was entitled, after the strike began, to put into
effect the increase and other adjustments it had offered to the Union and that by doing
so the Company has not engaged in any unfair labor practices.15
CONCLUSIONS OF LAW
Respondent has not violated Section 8 ( a)(1) and ( 5) of the Act as alleged in the
complaints.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclusions of law, and upon the
entire record in the case, and pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, I recommend that the complaints herein be dismissed in their
entirety.
11 See The Flintkote Company, 149 NLRB 1561.
15 N L R F v. Crompton -Highland Mills, Inc , 337 U.S. 217 , 224-225; Raleigh Water
Heater Mfg Co, Inc., 136 NLRB 76, 78, Economy Stores, Incorporated, 120 NLRB 1, 9.
See also Twenty -fourth Annual Report of the National Labor Relations Board, p. 82.