Wald Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 20, 1969

176 N.L.R.B. 839 (N.L.R.B. 1969)

WALD MANUFACTURING CO. 839
Wald Mamufactariog Company and International
Union of Electrical , Radio and Machine Workers,
AFL-CIO. Cases 9-CA-3870, 9-CA-3962,
9-CA-4037, 9-CA-4169-1-2, 9-CA-4255,
9-CA-4304, and 9-CA-4515
June 20, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On September 26, 1968, Trial Examiner Frederick
U. Reel issued his Decision in the above -entitled
proceeding , finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as ammended , and recommending
that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found
that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint.
Thereafter, the Respondent, the Charging Party,
and the General Counsel filed exceptions to the
Trial Examiner ' s Decision and supporting briefs,
and the Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings , of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed . The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings , conclusions, and recommendations of the
Trial Examiner, with the following modifications.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent,
Wald Manufacturing Company , Maysville,
Kentucky , its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with
International Union of Electrical , Radio and
Machine Workers , AFL-CIO, as the exclusive
representative of the employees in the following
appropriate unit:
All production and maintenance employees of the
Respondent at its Maysville , Kentucky, plant,
including truckdrivers , tool and die makers, die
setters , inspectors, janitors, packing , shipping and
receiving and warehouse employees; but excluding
plant clerical employees, office clerical employees,
and all guards, professional employees, and
supervisors as defined in the Act.
with respect to rates of pay, hours of employment,
or other terms and conditions of employment, by
refusing to furnish the Union or its representatives
information and data relevant to its discharge of its
duties as the employees' collective-bargaining
representative, by changing any rules or other terms
and conditions of employment without first notifying
the Union and affording it an opportunity to
bargain concerning any proposed changes, by
engaging in practices intended to frustrate
unlawfully the processing of grievances or other
administration of any contract between the
Respondent and Union, or by refusing in any other
manner to bargain in good faith.
(b) In any other manner interfering with the
above-named labor organization's fulfillment of its
duty to serve as bargaining representative of the
employees in the above-described unit.
(c) Threatening employees that resort to concerted
activity may lead to reprisals.
(d) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their rights under Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the
above-named Union as the exclusive representative
of all employees in the above-described appropriate
unit, and embody in a signed agreement any
understanding reached.
(b) Post at its plant copies of the attached notice
marked "Appendix."' Copies of said notice, on
forms provided by the Regional Director for Region
9, after being duly signed by an authorized
representative of the Respondent, shall be posted by
it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous placed , including all places where
notices to employees are customarily posted.
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 said Regional Director, in writing,
within 10 days from the date of this Order, what
steps have been taken to comply herewith.
'In the event that this Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of The National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act we hereby
176 NLRB No. 119
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notify our employees that:
WE WILL NOT threaten employees that resort to
concerted activity may lead to reprisals.
WE WILL recognize and bargain with the
International Union of Electrical , Radio and Machine
Workers, AFL-CIO, as the representative of our
employees in the following appropriate unit:
All production and maintenance employees at our
Maysville , Kentucky, plant, including truckdrivers, tool
and die makers, die setters , inspectors , janitors,
packing , shipping and receiving and warehouse
employees ; but excluding plant clerical employees , office
clerical employees , and all guards , professional
employees , and supervisors as defined in the Act.
WE WILL furnish the Union at its request, with
information and data relevant to its discharge of its
duties as your bargaining representative . WE WILL NOT
change any rules or any other terms or conditions of
employment without notice to the Union and without
affording it an opportunity to bargain with us about
any proposed changes.
WE WILL enter upon bargaining negotiations at the
Union 's request , and we will make a good-faith effort
to reach an agreement covering terms and conditions of
employment . If agreement is reached , we will embody it
in a signed contract . If a contract is signed , we will not
engage in any conduct to prevent the lawful and
effective administration and application of such
contract.
WALD MANUFACTURING
COMPANY
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, Room 2407,
Federal Office Building , 550 Main Street, Cincinnati,
Ohio 45202, Telephone 513-684-3686.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, heard at Maysville, Kentucky, on
January 9-12 and June 3-13, 1968,' pursuant to charges
filed March 17, 1966, and thereafter, and complaints
issued October 31 and November 20, 1967,2 concerns
allegations that Respondent, herein called the Company,
violated Section 8(axl), (3), and (5) of the National
Labor Relations Act, as amended, particularly in
preventing the fair administration of a contract, and in
invoking disciplinary procedures for the purpose of
demonstrating to the employees that they were better off
before they selected the Charging Party, herein called the
Union, as their bargaining representative.
'The n y recess was caused by the procedural steps in connection
with the motion to defer to arbitration , discussed briefly infra, In. S.
'Earlier complaints , issued October 6, 1966, and January 9, 1%7, were
subsumed in that issued October 31, 1%7. The complaint was further
amended at the bearing.
Upon the entire record,' including my observation of
the witness, and after due consideration of the unusually
helpful briefs filed by each of the parties,, I make the
following:
Findings of Fact
1. THE BUSINESS OF THE COMPANY AND THE LABOR
ORGANIZATION INVOLVED
The Company, a Kentucky corporation engaged at
Maysville in the manufacture of bicycle parts and
accessories, annually ships over $50,000 worth of
materials to points outside the State, and is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act. The Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES'
A. Background, Chronology, and Outline of the
Issues
The Union's efforts to organize the plant in late 1963
and early 1964 culminated in an election on August 14,
1964, which the Union lost, but which was thereafter set
aside as part of a settlement agreement dated June 7,
1965, and a consent decree entered September 9, 1965,
which purported to remedy the Company's alleged
violations of the Act. A second election, conducted
October 22, 1965, was won by the Union, and on
November 1 of that year the Union was certified as the
bargaining representative of the Company's approximately
200 production and maintenance employees. The ensuing
bargaining negotiations culminated in a contract executed
March 17, 1966, and expiring January 15, 1967.
Negotiations looking toward a subsequent agreement have
thus far proved abortive.
The theory of the complaint is that the Company
harbored a deep-seated and virulent opposition to the
Union, that the Company changed and harshly
administered its rules (notably its production
requirements) to demonstrate to the employees that they
had been better off without union representation, that the
Company sabotaged the operation of the
collective-bargaining agreement and prevented the Union
from administering it properly, and that the Company
took improper positions during the negotiations for a
second contract. We turn first to the allegedly
discriminatory layoffs and discharges, and then to the
'Che Company's motion of August 16, 1%8, to correct the transcript in
certain respects was unopposed and is hereby granted.
'The Company and Union filed their briefs on August 19, 1968 ; General
Counsel 's brief was filed August 24.
'The Company renews its contentions that on most of the allegations of
the complaint the Board should defer to the arbitration machinery set up
by the 1966 contract between the parties. This contention was the basis for
a motion to dismiss which I granted in part and denied in part in an Order
issued February 2, 1968. All parties appealed and the Board in an Order
issued April 29, 1968, reversed the Order of February 2 insofar as it
granted any part of the motion to dismiss . Although the record as now
fully developed might well lead one to the conclusion that the entire matter
might be reexamined , I read the Board's Order of April 29 as a
determination on its part not to defer to arbitration in this case. Such a
determination is within its province under Section 10(a) of the Act.
Respondent may, of course , address to the Board any grounds Respondent
chooses to advance in urging the Board to reconsider the matter . I see no
need to discuss the issue further at this level.
WALD MANUFACTURING CO.
bargaining issues.
B. Alleged Discriminatory Layoffs and Discharges
1. The 1964 rules and 1965 warning system
During the early months of 1964, the Company made
no secret of its antipathy to the Union and to Lawrence
Williams , the Union ' s international representative, who
was leading the organizing drive . On one occasion
Company President Pawsat, ' in a speech to the assembled
employees , produced a stuffed doll costumed as the devil,
and after referring to this effigy as "Mr . Williams," added
that Williams was worse than the devil , that Williams did
not have a good bone in his body , and that Pawsat
"wouldn ' t wish [Williams ] to go to heaven " and "may
wish him to go to hell ." On April 29, 1964, Pawsat, in the
course of another speech largely devoted to an attack on
Williams and the Union , announced to the employees that
the Company had reduced to writing the rules "we have
always had" and proceeded to distribute a copy to each
employee . At the same time the Company introduced for
the first time a formal written warning notice to replace
its previous verbal system . The written warning notices,
however, did not come into widespread use until August
1965 (after the Company consented to the setting aside of
the 1964 election but before the 1965 election , which the
Union won). At this time the Company instituted an
elaborate "7-step warning system" under which an
employee whose weekly production fell below Company
requirements would receive a warning notice, would be
suspended 3 days on receiving the third such notice, 5
days for the fifth , and discharged for the seventh.' In
actual practice the system operated somewhat less rigidly
in that on occasion a warning notice would cover more
than a single week ' s production , and on occasion the 3-
and 4-day suspension would follow the fourth and sixth,
rather than the third and fifth notices.
The rules published and distributed April 29, 1964,
were of a general nature . For example , the two rules most
referred to in the course of the trial were rules t and 2
under the general heading "Workmanship," reading as
follows:
1. Reasonable and honest workmanship and effort is
expected . Any dishonesty either in workmanship or
effort, both in quality or quantity , will be cause for
discipline.
2. Willful or careless spoilage, damage, or
destruction of company property, including jamming of
dies or die breakage cannot be permitted.
Prior to the formal announcement of the rules, the
Company had on occasion discharged employees for
failure to meet the Company' s production standards.
During that period, however , the Company had also on
occasion not disciplined or even warned employees in
weeks when their production fell below the standard. By
August 1965, however , the new formal warning system
was operating . For the week of August 23 the Company
issued over 20 warning notices under that rule, a peak
never since equalled. The warnings notices covering that
week were issued September 2 and 3, 1965, over 6 months
before the filing of the charge initiating this litigation.'
'Pawsat died during the interval between the January and June sessions
of the instant case.
'This seven -step system did not apply to violations of all rules , but was
applied to the "workmanship-effort" rule which the Company invoked
against employees who failed to "make production."
2. Discharges, suspensions, and quits (allegedly
constructive discharges) arising out of the warning
notices
841
The complaint in this proceeding' alleged as to 35
employees that the Company discriminated against them
(either by discharging them or suspending them or
constructively discharging them) "because of their
sympathy, or membership in, and activity on behalf of the
Union, and in order to discourage activity on behalf of the
Union."
With a few exceptions, discussed separately below, the
proof offered with respect to each of these cases rested on
what General Counsel occasionally termed "the grand
design"; i.e., the Company's attempt to discredit and to
oust the Union by establishing conditions far more
stringent than had prevailed prior to its advent. Thus in
his brief, General Counsel states: "Respondent's
discrimination against the entire work force by
promulgation and enforcement of a set of work rules and
seven-step warning notice system are the heart of the
8(a)(3) allegation ." The Union in its brief properly
concedes, however, that the limitations proviso of Section
10(b) "appears to preclude findings either that the initial
promulgation in April 1964 of the rules or the
modifications in mid-1965 were unlawful," and argues
that "the enforcing of the rules ... must be the predicate
for the ... violations" (emphasis by the Union)." But this
door appears closed by the holding in the Bryan case
(Local 1424 1AM v. N.L.R.B., 362 U.S. 411), for the
rules here, like the contract there, are valid on their face,
and there is no showing that any individual application
thereof was motivated by any factor other than
enforcement of the rules and warning notice system,"
The Union further argues that the alleged
discriminatory layoffs and discharges may be viewed as
"derivative" violations of Section 8(axl) and (5). As to
the latter, the Union argues that the Company set
production standards by unilateral action and hence any
discharge or suspension for failure to meet such invalid
standards was likewise invalid. As discussed infra, I do
not find unilateral action in the two particulars here urged
by the Union (the increases to $2.03 and $2.14 per hour),
for the increased production standards merely reflected
increased wage rates , which were the subject of
bargaining . As to Section 8(axl), the Union cannot
because of Section 10(b) rely on any illegal motivation in
the original promulgation of the rules, nor for the same
reason can it rely on an allegation that the Company
caused the low production by deliberately "switching"
employees to unfamiliar jobs. The allegation on the
'The preceding week (on August 25 through 27) the Company issued 18
warning slips for low production during the week of August 16.
'For purposes of this Decision I shall refer to the consolidated complaint
issued October 31, 1%7, to the complaint issued November 20, 1%7, and
to the amendments permitted during the hearing , as "the complaint."
"The Company in its brief relies on the limitations proviso. Its failure to
plead the proviso in its answer is readily explainable , as the complaint did
not disclose the "grand design" theory but appeared to allege a more
conventional theory of discrimination. The charges settled by consent in
1965 were , of course, timely with respect to the rules and warning notice
announcement, but the disposition of those charges did not suggest, let
alone establish , any invalidity inherent in the rules and notices.
"The limitations issued distinguishes this case from Sanitary Bag B
Burlap Co., 162 NLRB No. 151, now pending as No . 18313 in the Sixth
Circuit, for in that case the challenged rule was promulgated in December
1%5, and the charges were filed the preceding October and the following
January and February.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"switching" dates it back to June 1965, and the evidence
adduced by the Company establishes that General Counsel
did not carry his burden of proof that job "switching" was
either new or discriminatory . Finally, the Union would
find a "derivative 8(a)(1)" in the suspensions and
discharges because on some occasions the company
representatives in meting out the discipline "created the
belief among employees that the collective bargaining
relationship was the cause of their discipline." The
questions whether these statements violated Section
8(aXl), and whether the remedy for such violations should
extend to rescission of the disciplinary action are discussed
at the appropriate stages of this Decision , infra.
Only three of the alleged discriminatees present
problems unrelated to the warning notice system. As to
two (McCleese and Grandison ), I read the briefs of
General Counsel and the Union as abandoning the
contention of discrimination with respect to them. In any
event I find that McCleese quit because he did not desire
to do the particular task which was available for him,
after his nondiscriminatory layoff, and that Grandison's
discharge resulted from the Company' s good-faith belief
that he had been cheating.
Lloyd Applegate, the chief union steward , quit his job
in March 1967 after 20 years of employment at the
Company. He testified as follows:
It was three or four months before I quit that
[Supervisor ] Kenny Pawsat came along and set back
about 30 feet and stood and watched me for about an
hour. There have been other times when different
people were standing and watching me and I just
thought that eventually I am going to do something
that they are not going to like well enough and they
might want to fire so I'm going to quit the job. I got a
family to support and I need a job where I can feel that
I am permanent and could live without fear for being
fired.
Pawsat , the son of the then company president , testified
that he had been watching employees more closely during
the year before Applegate quit than he had prior thereto,
but he denied that he ever stood watching Applegate for
an hour . On these facts I find that although the increased
"watching" by the supervisor probably violated Section
8(a)(I) of the Act," this was not specifically directed at
Applegate, and his response thereto, including his quitting
in anticipation of discharge , was neither a reasonable
foreseeable nor an intended consequence of the illegal
conduct . Applegate had received no disciplinary or
warning notices arising out of this close watching, and
while one may share his suspicion that the Company
would have been glad to find an excuse to discharge him,
this is insufficient to establish that the conditions made his
job so intolerable as to reach the level of constructive
discharge . See N.L.R.B. v. J. W. Mays. Inc., 356 F.2d
693, 698 (C.A. 2); Walker Electric Company. 142 NLRB
1214; Cullman Electric Cooperative, 99 NLRB 713;
Action Wholesale, Inc., 145 NLRB 627,628. As stated in
Walker Electric, supra: . the mere existence of
unlawful conditions, which do not require employees to
take affirmative action in derogation of their rights [is
not] sufficient justification for considering abandonment
of employment as a constructive discharge."
"There is no allegation in the complaint covering this conduct and I
therefore make no finding or conclusion with respect to it.
C. Alleged Refusal to Bargain
When the hearing opened the complaint contained 26
separate allegations of refusal to bargain . During the
hearing , the General Counsel presented an amendment
which subdivided the 26th such allegation into 7 parts and
added 5 new allegations , making a total of 37 . Of these,
one was withdrawn , and one was dismissed in whole and
one in part at the hearing ." The remaining 35 allegations,
of which two appear to be abandoned , are discussed below
in the order in which they appear in the complaint.
1. Paragraph 12(a) alleges that the Company was guilty
of "unilaterally departing from and changing its
seven-step disciplinary warning system ...... The record
establishes that on occasion the system was not rigidly
applied in that warnings were sometimes issued for several
weeks as a group rather than week by week, and on
occasion (where long intervals had elapsed between a
particular employee ' s receipt of notices ) disciplinary
suspensions were meted out with the fourth and sixth
rather than for the third and fifth notices . The Union sees
this , to quote its brief , as leaving the Company with
discretion "to apply and relax pressures suitable in
relationship to IUE activities, as a constrictor
synchronizes its pressures with the heartbeat of the
victim ." In this particular area, however , the actions of
the Company do not seem to call for the serpentine
analogy . There is no suggestion in the evidence that its
relaxation of the literal rules was related to union activity.
To be sure , withholding of discipline would serve to
emphasize the Company's control , but as long as the
variations were nondiscriminatory and favored the
employees , I would not go so far as to characterize them
as illegal unilateral action.
2. Paragraph 12(b) alleges that the Company on
January 12 , 1966, unilaterally promulgated a rule
concerning end-or-shift cleanup time . The record is clear
that on that date Foreman Thomas of the grinding room
notified employees under his supervision not to roll up
their aprons and gloves during the 10-minute cleanup
period between 3:15 and 3:25. According to Vice President
Schlifke, this allocation of cleanup time was of long
standing , and the employees were not to roll up their
aprons, gloves, and goggles until the last 5 minutes of the
shift, although they would remove them at the start of the
15-minute cleanup period. Applegate , an employee of 20
years ' service with the Company , testified that the "don't
roll up your apron when you take it off" rule was new in
January 1966, and that prior thereto he had either rolled
it or just laid it down when he doffed it. I credit
Applegate 's testimony in this respect . The fact that the
Union did not complain of the imposition of the new rule
supports the Company' s contention that the matter is
intrinsically petty, but falls short of legitimizing unlawful
unilateral action . The Company ' s power to make rules
under the contract is not relevant as that document was
not executed until some weeks after the violation was
committed.
"The dismissal at the hearing went to allegations that the Company had
refused to discuss a checkoff with the Union during the negotiations of the
1966 contract and again in the abortive negotiations for a second contract.
This issue , which the General Counsel sought to inject by amendment in
June 1%8, 5 months after the hearing opened , had first been raised by a
charge which Charging Party withdrew in September 1%7. At that time
the Regional Director approved the withdrawal, stating that that portion of
the case was dosed on the Board 's records.
WALD MANUFACTURING CO. 843
3. Paragraph 12(c) alleges as a refusal to bargain the
Company's failure to respond to the Union ' s request of
March 25, 1966 , for a list of supervisors with whom
grievances could be filed pursuant to the contract . Shortly
after the contract was executed , several employees filed
grievances which the Company rejected on the ground that
the employee had given the grievance to the foremen in
the second step of the procedure , whereas the grievance
should have gone to the foremen in the first step, and to
the supervisor in the second step. In an effort to clarify
this problem , employee Norman Mineer, the president of
the union local, wrote Schlifke, noting that Schlifke had
rejected the first three grievances "because they were not
directed to the Supervisor in step 2 as called for in the
contract ." The letter continues:
I have instructed the stewards to find out who their
supervisors are so they can handle and process
grievances properly in the future . It would have been
very easy for you to [have] informed them of who their
supervisor was instead of returning the grievances.
These grievances will be refiled as soon as this
information is secured.
So there can be no misunderstandings in the future,
will you please notify this office of who each Supervisor
is for each department and each shift?
The Company never replied to Mineer ' s letter . It had,
however , posted in the plant on March 19 the names of
the foremen, and on March 25 (the date of Miner's
letter ) it posted the names of the supervisors . In its brief
the Company argues that in so posting it "did one better
than send the Union a letter, " and cites cases holding that
employers need not furnish data "in the exact form
requested by the representative." Contrary to the
Company ' s contention , I find that it is not going "one
better" to ignore a request of the local president and to
substitute direct dealing with the employees. The
Company ' s failure to reply to Mineer was a breach not
only of common courtesy but also of its statutory duty to
treat the Union as the representative of the employees.
4. Paragraph 12(d) of the complaint alleges that the
Company changed its minimum production averages in
March 1966 from $2 to $2.03 without notifying or
bargaining with the Union . At the time in question the
basic wage rate was raised from $2 to $2.03, and the
Company accordingly raised the piece rates (which had
been set to yield $2 per hour ) so that the production of
the same number of pieces per hour would now yield
$2.03. The Company also, however, now required that the
required production rate be maintained , or in other words
raised the minimum hourly production standard to $2.03,
thus requiring that the same amount or rate of production
be maintained . The Union argues that in addition to
achieving a wage increase , the employees were also
entitled (at least in the absence of bargaining over a
change in production standard ) to have the old standard
rate retained , so that an employee with the aid of the
wage increase could meet the required standard
production with greater ease , or, more bluntly, by
producing less than before.
The record establishes that the Company ' s practice of
adjusting the production standard to maintain production
requirements at the time of wage increase was of long
standing . To be sure , many longstanding company
practices of unilateral action must be abandoned when the
employees select a bargaining representative . But in this
instance the calculation of the production standard is
purely arithmetical and reflects no basic change in
conditions of employment . The Union contends that the
treatment of so called "Red Circle jobs" establishes that
the increase in wage rate did not authorize corresponding
increase in minimum production value . "Red Circle jobs"
were those in which an operator could normally produce
far in excess of the basic minimum value . By special
agreement with the Union , the Company did not raise the
wage rate on those jobs , when other rates increased in
March 1966 , but the Union argues that the $2.03
minimum production standard was made applicable.
Although this change was somewhat meaningless as the
Red Circle jobs produced far in excess of the new
standard , the Union argues that this demonstrates that the
changed production standard was not automatically
geared to a rate change, but was a separate matter which
should have been the subject of bargaining. Assuming that
the minimum standard on "Red Circle jobs" was
increased without an increase in wage rates , this might
establish a technical violation as to such jobs , but would
not taint with illegality the Company' s continuing of its
standard practice to require the same amount (and hence
increase value ) of production where rates were increased.
5. Paragraph 12(e) alleges , and the Company admits,
that it has refused to entertain grievances filed by the
union president , by union stewards and by other
employees on behalf of individual employees or groups of
employees . The Company contends that its view is based
on its construction of the 1966 contract which permits an
employee who feels "adversely affected " by company
action to file a grievance with "his" foremen . Although
the arbitration panel set up pursuant to the contract
rejected the Company' s interpretation , the Company
further argues that its position was not unreasonable, and
even if erroneous does not establish a refusal to bargain.
Assuming , arguendo, that the Company acted in a
good-faith belief that it was not obligated to entertain the
grievance, this would not absolve it from a finding of
unlawful refusal to bargain if in fact its statutory duty
obliged it to entertain such grievances . A good-faith
misconception of statutory duties does not negate their
existence , or furnish a defense to a Board proceeding. See,
e.g., Old King Cole, Inc. v . N.L.R.B., 260 F.2d 530, 532
(C.A. 6), citing Taylor Forge & Pipe Works v . N.L.R.B.,
234 F.2d 227 (C.A. 7). And recognition of the Union's
role as bargaining representative in administering the
contract (see, e .g., Conley v . Gibson , 353 U.S. 41, 46)
would seem to carry with it the duty to receive and
consider grievances filed by the union president as an
employee on behalf of all employees. Certainly there was
in this contract no clear and explicit waiver such as would
be required to establish that the Union limited the filing
of grievances to individuals . See Timken Roller Bearing
Co. v. N.L.R.B., 325 F.2d 746, 750-751 (C.A. 6).
Moreover , as the Company sees the issue in terms of its
alleged good faith , I feel compelled to add that on this
record the Company ' s position appears to have been taken
not in good faith but for the purpose of frustrating orderly
administration of the contract . One of the grievances
which the Company rejected early in the life of the
contract rested on a union claim presented by Mineer that
a general wage increase be retroactive . The Company
rejected this grievance "Because an employee may not
present a grievance on behalf of himself ." To argue, as
the Company did, that such a grievance could not be
brought by employee Mineer as union president but had
to be signed by every affected employee is to betray not
only a desire to frustrate the grievance procedure by
imposing absurd requirements, but also a desire to
844 DECISIONS OF-NATIONAL LABOR RELATIONS BOARD
minimize the Union ' s role as representative of the
employees.
6. Paragraph 12(f) alleges a refusal to bargain in the
Company's refusal to inform union stewards of decisions
reached in second -step grievances , which the Union
requested in writing on April 13 and 21, 1966. The
contract provided that at the second step the grievant and
the steward must sign the grievance , but did not require
that the grievance be discussed orally. The Company's
brief does not contain any argument (other than what it
declares is a "natural reading of the contract") for
ignoring the union steward in responding at the second
step. The brief does urge, correctly, that the Company in
negotiations for a new contract proposed a clause which
would have specified the right of the steward to receive
the response . This withdrawal from an untenable position
does not moot the matter . See Walling v. Helmerich, 323
U.S. 37, 43. More important , it does not conceal that in
the early days under the 1966 contract the Company
asserted positions under the guise of " interpretations"
which could only result in crippling the Union's effort to
play its proper role in administering the agreement.
7. Paragraph 12(g) alleges that the Company refused
the Union ' s request that it be furnished copies of the
warning notices issued to employees . The Company argues
that the Union 's request for warning notices dating back
to the time of the Union's certification was not made for
purposes of good -faith bargaining, but rather to help the
Union to build an unfair labor practice case against the
Company . But assuming that the request for earlier
notices was properly denied on the ground that as to them
the time for filing •grievances had run and they could
therefore serve no useful purpose , the question remains as
to the Union 's requests of March 22, 1966 , and June 10,
1966, for future warning notices . The Company
apparently contended that the requests for these notices
were likewise not made in good faith but for purposes of
litigation . The record , however , furnishes no basis for this
imputation . Unlike the Trial Examiner in American Oil
Co., 171 NLRB No. 84, cited by the Company, I am not
persuaded that the union ' s demand for the data was for
some purpose unrelated to its administration of the
contract . Even less apposite here is General Electric
Company, 163 NLRB No. 30, likewise relied on by the
Company, for in that case the data requested related to a
legitimate interest in the continuing operation of the
warning notice system. Although the Company is correct
in stating that the mere number of notices would not
reveal discrimination , and that inquiry into the merits of
each notice is necessary to evaluate it, the Company's
refusal to furnish the Union with the notices severely
limited , if it did not altogether preclude , initiation of the
very inquiry which the Company impliedly concedes would
be proper . In short, the request for copies of future
warning notices appears on its face to be a valid request
by the bargaining agent . On this record , I cannot find that
it was not made in good faith. On the contrary, the
Company' s refusal to cooperate in this respect again
suggests a proclivity on its part to deal with the employees
individually , to bypass the Union , and to minimize and
derogate from the Union's role as representative of the
employees.
8. Paragraph 12(h) alleges a refusal to furnish the
Union with the results of adjustment of individual
complaints . The allegation has its genesis in complaints
filed by employee Hayslip late in March 1966 concerning
the price rates assigned certain of his operations. The
Company reviewed the matter with Hayslip pursuant to
the contract, and shortly thereafter Hayslip left the
Company's employ. On April 28, 1966, the Union asked
that the Company furnish it with the result of the
Company's review of Hayslip's complaints, stating that
this information could then be passed on to the employees
now performing those jobs. The Company refused, stating
that as Hayslip had been satisfied, it regarded the matter
closed. In its brief the Company argues that as to
Hayslip' s successors , the time permitted under the
contract for challenging a rate had elapsed before the
Union's request. Once again, however, the Company
adopts an approach which considers only the concerns of
individual employees , and minimizes the Union's role as
representative of all. The data in question , whether or not
it could have served as a basis for complaint by a
particular individual then performing those tasks, would
be relevant to them and to future operators , and to the
Union in future negotiations. The failure to furnish it
therefore violated Section 8(a)(5) and (1) of the Act.
9. Paragraph 12(i) of the complaint alleges a refusal to
permit the Union to perform timestudies of various jobs
in the plant. The record establishes that with respect to
certain matters the Company permitted the Union to send
in its timestudy men, but that on other occasions the
Company refused. The latter, of course, give rise to the
issue here.
Insofar as the Union sought to timestudy jobs as to
which employees protested piece rates, the Company's
ground for refusal is that the Union by contract waived
the right to a timestudy. The contract provided that in the
event of a complaint on rates all the Company was
required to do was produce its own records proving that
the rate could be made, and the employee if dissatisfied
could thereafter file a grievance. With respect to request
for timestudies made in connection with grievances, the
Company has permitted some but refused others on the
ground that the grievance was untimely . In a number of
other instances where timestudies have been requested on
new rates within the period permitted by the contract, the
Company has refused on the ground that the grievance
was not filed by the employee affected by the rate.
Insofar as the Union asked for a timestudy in support
of a grievance over a preexisting rate , there is merit to the
Company's position that under the contract a timestudy
need not be part of the challenge. But the rejection of
other timestudies on the ground that the grievance was not
filed by the proper party is simply another example of the
Company's too narrow reading of the Union's role in
administering the contract, and hence violated the Act.
10. Paragraph 12(j) of the complaint attacks the
Company's failure to give job descriptions requested by
the Union. In June 1966 the Union asked for job
descriptions covering the jobs in the bargaining unit. In
reply the Company referred to a letter it had written the
preceding January in which it asserted a need for secrecy
as to part numbers. In December 1966, however, the
Company did furnish a number of job descriptions to the
Union. The delay in furnishing this data substantiates the
allegations of paragraph 12(j). The Company contends
that the June 1966 request was for "job components,"
which it alleges are necessarily secret , but nothing in the
request warrants the construction the Company allegedly
put on it. The secrecy of job components is further
discussed in connection with paragraph 12(s), infra.
11. Paragraph 12(k) alleges a refusal to let the Union
examine work records of employees who had received
warning notices for low production and who had filed
WALD MANUFACTURING CO. 845
grievances based thereon . The evidence establishes that the
Union sought work records in connection with certain
warning notices which would show not' only the records of
the disciplined employees for the weeks in question (which
the Company was willing to produce ), but also the records
of those employees for the preceding year, and the records
of other employees who worked on the same jobs during
the past year. The Company rejected the latter two
demands as burdensome and irrelevant . I would be
inclined to disagree as to the records of other employees,
for such material might be relevant if the Union chose to
press a grievance based on discriminatory treatment. The
complaint , however, is limited to the records of the
employees who received the discipline , and I see no
relevance to their work records in other weeks.
12. Paragraph 12(l) alleges a violation of Section
8(aX5) "in unilaterally discontinuing an established
practice of holding a summer picnic for the employees."
As early as January 1964 Company President Pawsat had
warned the employees that "we have picnics and we have
Christmas parties . . . . The Union cannot guarantee you
those.. . I am the man to decide what we have and
when." For 10 years or more the Company had had an
annual summer picnic. On May 25, 1966, however (i.e., in
the spring following the Union's victory in the election),
the Company wrote the Union the following one-sentence
letter: "This is to advise that we do not propose to have a
picnic this summer ." This evoked a four paragraph reply,
the gist of which was that the Union regarded the failure
to hold the picnic as an illegal implementation of Pawsat's
earlier threat. The Company ignored the reply, and the
picnic was not held.
The Company argues that it decided not to hold the
picnic because of poor attendance at the Christmas party
the preceding December . It also states that it merely
"proposed" its view on the picnic to the Union which
"had every opportunity to be heard on" and "made no
effort to discuss" the "proposal ." I regard th6 Company's
contentions as altogether specious . Its letter was not a
"proposal" but a statement of definite intention . Even had
the letter read "we propose not to have the picnic" its
sense would be clear , but as written ("we do not propose
to have") even the syntax precludes construing the letter
as a "proposal ." Had the Company sought to inquire into
the Union's view of the employees ' desires in the matter in
view of the Christmas experience it could have done so.
To say that the Union had an opportunity to be heard and
made no effort in the matter is likewise sophistry. The
Union made it clear that it resented the cancellation of
the picnic, and openly impugned the Company' s motives.
The Company chose not to respond to the letter, which it
could have done had it desired to correct any
misimpression or to state any reason for its action.
An annual summer picnic may be a less important
condition of employment than a Christmas bonus (cf.
Stark Ceramics, Inc. v. N.L.R.B., 375 F.2d 202 (C.A. 6)),
but it was sufficiently important for the company
president to refer to it in the course of an antiunion
speech . Because the value of the picnic is not easily
expressed in monetary terms, and because it is necessarily
an occasion to be enjoyed only by persons harboring good
will to one another , the matter does not readily lend itself
to the Board' s remedial process or even to future
injunctive relief. Nevertheless, in its own relatively minor
way this illegal action by the Company tells a great deal
about what went wrong in the operation of the
collective- bargaining process at this plant.
13. Paragraph 12(m) alleges that the Company violated
its bargaining obligation in refusing to let a union
representative be present at first-step grievance
adjustments. The Company points out that under the 1966
contract the employee was to present his grievance to his
foreman , and if the latter ' s answer did not settle the
grievance , the next step was for the employee and his
steward to put the matter in writing. The Company's
refusal to let the steward enter the picture before the
second step appears to be in accord with the contract, and
I sustain the Company 's contention that as to this matter
the Union waived its right. See Sohio Chemical Company,
141 NLRB 810, 817; Globe Union, Inc., 97 NLRB 1026,
1042. I also note that in the abortive negotiations for a
new contract, the Company changed its position and
agreed to a clause providing for the steward to be present
at the first step.
14. Paragraph 12(n) of the complaint alleges that the
Company adjusted grievances subsequent to the first-step
level of the grievance procedure without notice to the
Union . Schlifke testified that grievances were settled after
being denied by the foremen but before the second step.
Asked by company counsel , "Did you ever refuse to tell
the Union what the terms of the settlement agreement
were?" Schlifke responded in the affirmative. Although
Schlifke also testified that he could "remember no formal
request from anyone," and could not "remember for sure
of a request ," his categorical admission that he had
refused to tell the Union the terms of such settlements
would seem to establish the violation. The Company
.contends that where the grievance is satisfied, there is no
need to tell the Union. Again the Company misconceives
the role of the Union as bargaining representative. A
refusal to tell the bargaining representative the terms of a
settlement hampers its subsequent administration of the
contract whatever the terms of the settlement may have
been.
15. Paragraph 12(p)'4
of the complaint alleges that the Company
Section 8(a)(5) by insisting in negotiations for a second
contract that it contain a provision continuing existing
production standards and wage rates. I see no violation
here . The Union stated during the negotiations that under
this proposal all pending grievances protesting wage rates
could be wiped out. The Company could have reassured
the Union at that time, rather than at the hearing and in
its brief, that the clause was not susceptible to such an
interpretation, but its failure to do so does not render
illegal its insistence on the clause.
16. Paragraph 12(q) assigns as a refusal to bargain the
Company's unilateral discontinuance , beginning in
December 1966, of the annual Christmas party. As in the
case of the summer picnic discussed above, the Company
wrote the Union a one-sentence letter which read : "This is
to advise that we do not propose to have a Christmas
party this year." The Union, with the summer picnic
experience behind it, did not reply. As noted above, the
Company argues that its use of the word "purpose" left
the matter as one inviting discussion , but this sophistry
has not even syntax to support it. The poor attendance at
the 1965 party may explain the Company's reason for now
implementing Pawsat 's earlier threat , but does not excuse
"Paragraph 12(o), alleging unlawful insistence in 1966 on certain
limitations on an arbitrator's power, has apparently been abandoned, for
the reason that the Union in subsequent negotiations did not suggest a
change in that language which had appeared in the previous contract.
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or explain the Company' s taking this step without
affording a real opportunity to discuss the matter.
17. Paragraph 12(r) alleges that after December 22,
1966, the Company refused any union representative,
other than the local committee of the Union or the
timestudy expert,'s access to the Company's timestudy
data and job components. The narrow thrust of this
allegation is that the data was not made available to
Williams, the Union's International representative.
Although the Company's letter of January 27, 1966,
offering to permit access to the data was limited to the
"local union committee" and "any accredited time study
expert," the record shows that Williams accompanied the
timestudy man when the latter saw the data. Thus, the
allegation of the complaint is not supported by the
evidence.
18. Paragraph 12(s) alleges a refusal since December
22, 1966, to clarify job descriptions at the Union's
request, and a refusal to meet and bargain regarding job
descriptions. As noted above, in connection with
paragraph 12(j), the Company late in 1966 furnished a
number of job descriptions to the Union which had
requested them in June of that year. The Company gave
additional job descriptions to the Union on January 10,
1967. The Union thereafter wrote the Company with
respect to those descriptions, stating that they "are not
complete to the degree where an employee can determine
as to what his classification should be" and asking for "a
meeting on this matter as we desire clarification on many
of these writeups." The following "minuet" then occurred:
On March 6, 1967, the Company asked the Union to ".
advise us what questions you have concerning the job
descriptions." On March 9 the Union replied: "Our
questions are numerous. That is why we requested a
meeting. . . . if you do not desire to respond to our
request for a meeting . . . please come right out and say
so." Apparently the Company on March 21 inquired by
telephone who the Union wanted present at such a
meeting , and the Union wrote on March 27, reiterating its
oral reply of March 21 that it wanted its representative
(presumable Williams) and the local union committee.
The Company on April 21 again repeated its request that
the Union state "exactly what questions [it had] relating
to the job descriptions," but added that it "was ready to
hear your questions" and asked the Union to arrange a
meeting with the Federal mediator. The Union lost no
time in replying on April 24, taking exception to the
Company's mere willingness to "hear questions" as the
Union had asked for a discussion. The Union added that
it saw no need for the mediator's presence but suggested
that if the Company was ready to "discuss and answer"
rather than merely to "hear" questions, the Company
could arrange with the mediator to be present. This
response was prefaced by a reminder that the Union had
filed unfair labor practice charges on this subject.
Replying on May 5 the Company wrote that the Union
was guilty of "continuous misrepresentations," and that
the Company was ready to answer proper questions and
engage in further appropriate discussion . The Company
closed the letter by telling the Union to "contract [the
mediator] so that he may set up any meetings." On May
9 the Union replied, accusing the Company of being
evasive and asking that it inform the Union of when it
was willing to meet.
The material actually furnished the Union in December
1966 amounted to little more than generalized job titles,
but the material furnished in January 1967 concerning
tool-and-die makers constituted adequate job descriptions.
The Company contends that to require it to furnish its
detailed "job components" would be to expose trade
secrets which must be kept confidential from its
competitors. In my judgment a happy medium could be
developed under which the Company would furnish a
more detailed description of the job's requirements or
operations without revealing the details now found in the
job component sheets (Company's Exhibit 138). This, of
course, is a matter for the future. As to the past, although
I have sustained the allegations of paragraph 12(j), I find
as to 12(s) that the Company "out-danced" the Union, as
the latter, having finally wrung from the Company an
unequivocal readiness to meet, to answer questions, and to
discuss, let the matter drop.
19. Paragraph 12(u)" of the complaint alleged that the
Company refused to permit union representatives to be
present when employees were disciplined. The Company
admits that it rejected the Union's request to be present
through an officer or steward when an employee is to be
disciplined for any reason. The Company's view is that
when it interviews employees whose production is such
that a warning notice may be issued, the decision to issue
the notice or to withhold it is not made until the end of
the interview. The Company therefore contends that the
case resembles Dobbs Houses, Inc., 145 NLRB 1565,
1571, and Jacobe-Pearson Ford, Inc., 172 NLRB No. 84,
rather than Texaco, Inc., 168 NLRB No. 49. Although
the distinction between Texaco and Jacobe-Pearson is
somewhat less clear to me than the Board's footnote 5 in
the latter case suggests it should be, I shall follow
Jacobe-Pearson and recommend dismissal of this
allegation . The Union has a statutory right to be present
at the adjustment of grievances, but to permit it to insist
on attending every routine interview which might
culminate in discipline goes beyond the statute and could
disrupt personnel practices in a large plant . I do not reach
here the question whether if an employee expressed the
desire for union representation at such an interview, the
Company could lawfully refuse it, nor do I reach the case
of an employee called in for some special investigation in
a matter other than a mere failure to meet production, or
some similar common infraction of the rules.
20-22. Paragraphs 12(v), (w), and (x) allege that in
mid-April 1967 the Company unilaterally granted merit
increases to its machine shop employees, and further
bypassed the Union by conducting both group and
individual meetings with those employees to discuss raises
in pay and changes in working conditions. The facts as to
this episode are as follows:
On Saturday morning, April 15, 1967, several of the
employees in the machine shop started to walk out in
protest over the disciplining of one of their number for
whistling a tune while at work. Vice President Schlifke
persuaded them to return to work. Within the next half
hour Schlifke held a meeting of the men in his office in
which, after a general discussion of whistling and of the
rule prohibiting the buying of cold food during the
coffeebreak, he turned to the subject of a wage increase.
To quote employee Hickman:
"Reference to the timestudy expert was made in an amendment during
the hearing.
"Paragraph 12(t), alleging unilateral rate changes since February 15,
1967, has apparently been abandoned because the same practice was
permitted under the contract . Shell Oil Company. 149 NLRB 283, 287.
WALD MANUFACTURING CO. 847
And then he informed us that the entire tool and die
department had been recommended for a raise a week
prior to that. That he couldn't definitely say that we
were to receive a raise but that we had been
recommended for one including the man that had quit.
Q. Now was there anything else that you recall that
was said at that particular meeting?
A. Well, other than he said we should conduct
ourselves as individuals. That just because one man
nailed the lid on his coffin wasn't necessarily reason for
all of us to do so. And that as individuals we could
receive anywhere from two to 15 cents on the hour in
increase in pay. And that he would also be there for
about an hour after work that day to talk with any of
us that wanted to see him and that he would also be
there after work the following Monday.
Q. Well, did he say under what circumstances he
would talk to you after -
A. He said he would speak to us as individuals but
not as a group.
The following Monday, April 17, Schlifke spoke to
Hickman individually, and asked him what he had been
"trying to prove that Saturday morning." Schlifke told
Hickman that the employees should conduct themselves as
individuals, and then, after discussing certain defects in
Hickman's work, returned to a discussion of the rule
against whistling. That same Monday Schlifke summoned
to the office employee Caudill, who had been absent on
Saturday. Upon ascertaining that Caudill had he been
present would have joined the temporary walkout,
Schlifke asked if Caudill "was going to follow a group the
rest of [his] life or to look out for [himself]." That same
day Schlifke called the employees into his office
individually and told each of them the amount of the
merit increase that the Company, in a letter of that date
to the Union, proposed to give him.
The Company contends that merit increases were the
accepted norm for the machine shop, but this does not
remove individual increases from the area of bargaining.
The Company further contends that it gave notice to the
Union and opportunity to bargain. But Schlifke's
statement that increases of from 2 to 15 cents were being
recommended was made on April 15, 2 days before his
letter to the Union, and his disclosure to each individual
of the amount he was to receive was made on the date of
the letter and before the Union could reply. The Company
asserts that the Union had not replied to a similar letter
in 1965 and had promptly expressed approval of increase
in 1966. In this connection it should be noted, however,
that the Company's 1965 letter on this subject invited the
Union to discuss the matter, and nothing in its 1966 letter
suggests that it gave advance notice to the employees.
Even assuming that Schlifke had in fact told the
employees of those increases in advance of effective
notification to the Union, this would establish no more
than that the Company's unilateral actions in 1965 and
1966 were not put in issue . Finally, quite apart from the
wage action, violations of Section 8(aX5) inhere in
Schlifke's invitation to the men to consult him as
individuals, but not collectively, apparently about wage
rates, and in his announcement of a rule against whistling,
which (according to the undenied testimony of Hickman
and Caudill) had never been posted or otherwise
communicated to the employees. I therefore sustain this
allegation of the complaint.
23. Paragraph 12(y) of the complaint which alleges a
unilateral increase in work standards in May 1967
coinciding with an increase in wage rates must be
dismissed for reasons similar to those discussed in
connection with paragraph 12(d), supra.
24-30. As amended at the hearing, paragraph 12(z) and
its seven subsections alleged that the Company
administered the grievance machinery of the contract in
bad faith. Subparagraph ( 1) alleges bad faith in the
conduct described in subparagraphs c, e, f, g, h, i, j, k, in,
n, r, and u. Insofar as I have recommended dismissal of
certain of those allegations, I necessarily do not find the
Company acted in bad faith in those respects. As to the
remainder, and particularly paragraphs e, f, g, h, j, and n,
I sustain the allegation that the Company was not acting
in good faith. It is true that shortly after the contract was
executed the Union fired a barrage of charges at the
Company, thereby putting the Company on notice that the
Union, notwithstanding the new agreement, was
determined to press its precontract allegations before the
Board. But while this may have warranted the Company
in dealing with the Union at arm's length, it cannot
explain the Company's calculated attempt to diminish at
every stage possible the Union's role in the administration
of the contract.
Subparagraph (2) accuses the Company of "insisting
upon its own unilateral interpretation" of the contract "as
the sole basis for all discipline and grievance procedures .
." This allegation, as the Union concedes in its brief,
"does not allege an independent 8(a)(5) violation." I
cannot base a finding of "bad faith" on a Company's
insistence on its "own unilateral interpretation," except to
the extent that that interpretation was itself not made in
good faith.
Subparagraph (3) alleges that the Company showed its
bad faith in trying to thwart the filing of first-step
grievances by requiring that the employees clearly express
their intent to file a grievance. The basis of the allegation
is that on occasion the Company would view the
employee's presentation of a matter to the foremen as a
mere "inquiry" rather than a grievance, so that when the
employee later sought to present the matter as a
second-step grievance, the Company would reject it for
failure to present it at the first step. The situation is
patently rife for opportunities of abuse. I would not hold
that every simple inquiry to a foreman is tantamount to
filing a grievance, but the record here indicates that on at
least one occasion (grievance 58, discussed at Company
Exhibit 103, pp. 27-29), and possibly more (see, e.g.,
grievance 96, denied by the arbitrator on other grounds,
Company Exhibit 103, pp. 34-36), the Company's
contention that the employee had not made clear his
intent to file a grievance at the first conversation is so
palpably wanting in merit as to establish bad faith. Thus a
statement to the foreman that the employee has a claim
against the Company, and a rejection of the foreman's
suggestion that the employee take the matter to the office,
is enough to constitute "filing a grievance" with the
foreman, and a later rejection of such a grievance for
want of such filing betrays a determination to look for
roadblocks rather than to facilitate administration of the
contract.
Subparagraph (4) alleges bad faith in the refusal by the
Company to inform the Union of the results of first-step
meetings between employees and foremen concerning
grievances. This allegation is related to that contained in
paragraph 12(m) discussed above. I find the Company to
be in error, but I do not believe that its argument of
waiver by the Union is so far-fetched as to warrant a
finding of bad faith.
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subparagraph (5) alleges that from March to June 1966
the Company in bad faith refused to accept grievances at
the second step because they were filed with the incorrect
agent "while knowingly refusing to inform the Union as
to the identity of" the proper agents . This allegation by its
terms alleges a practice which - if it existed - ceased
early in the life of the contract. I therefore see no need to
discuss it here. Manifestly any future conduct of the type
here alleged would establish bad-faith administration of
the contract by the Company."
Subparagraph (6) alleges that the Company in bad faith
unreasonably delayed third-step grievance meetings and
refused to discuss certain grievances at such meetings. The
Company responds to this allegation by showing that it
held 23 third-step' meetings in the first 10 months under
the contract. Of the over 200 grievances filed between
March 1966 and May 1967, the Company raised
procedural objections to over 80. To the extent that some
of these objections were so technical as to raise serious
doubts as to the Company's good faith, the issues are
considered under the appropriate paragraphs above.
Subparagraph (7) alleges bad faith in the Company's
insistence that all unresolved grievances at the second-step
be processed through to abritration. The Company's brief
points out that at least one grievance at that stage was
settled in the Union's favor. On the other grievances, over
200 in all, the Company has apparently insisted on
arbitration in all except a few which the Union withdrew.
And on most of those in which the arbitrator held for the
Union, the Company has filed suit in Federal district
court challenging the determination. In the absence of
evidence establishing that the Union was deliberately filing
frivolous grievances, I find that the Company's insistence
on arbitrating almost every grievance, as well as its
continuing to litigate almost every unfavorable
determination by the arbitrators, reflects a determination
to impede the operation of the contract's grievance
machinery and to bleed the Union to death financially. Cf.
Vaca v. Sipes, 386 U.S. 188, 191-192. I therefore sustain
this allegation of the complaint.
31. As noted above, paragraphs 12(aa) and (bb) were
dismissed insofar as they alleged refusal to discuss a dues
checkoff. Paragraph 12(aa) also alleged that the Company
failed to bargain in good faith over a union-security
provision. I am cited to no evidence in the record bearing
on this allegation, and I therefore would dismiss this
aspect of the complaint.
32-33. Paragraphs 12(cc) and (dd) allege a refusal to
bargain in the distribution to the employees of a
pamphlet, "Working Together at Wald," which (to quote
paragraph 12(dd) of the complaint) "minimized the
provisions" of the union contract and encouraged the
employees to deal directly with the Company and to
bypass the Union. Paragraph 12(cc) dealt with the failure
of the pamphlet to mention the union contract, but this
pamphlet was superseded in July 1966, so that its
continued distribution between February and July of that
year (the gravamen of paragraph 12(cc)) would not be the
subject of any order and need not be discussed here. See
discussion of paragraph 12(z)(5), supra. The 1966 edition
of the pamphlet contains one sentence advising the
employees that "Some employment items are covered in
the union contract." I find nothing in the pamphlet which
denigrates the Union or the agreement, or which
encourages individual bargaining.
"The Company regards the grievance machinery of the 1966 contract as
still operative.
D. Other Violations Alleged in the Complaint
1. Interference, restraint, and coercion
Paragraph 5 of the complaint alleges that Schlifke and
Supervisors Young and Pawsat in giving out warning
notices stated to the employees that the notices were
issued pursuant to, and as a result of, the contract
between the Company and the Union . The proof as to
Schlifke falls somewhat short , and as to Pawsat shows no
more than that he said the Company had the right, under
the contract , to issue the warning notices . As to Young,
however , the record is clear that on at least one occasion
he stated , in the course of issuing a warning , that he had
to "live up to the contract" and that he had "no other
alternative but to issue this warning notice under the
terms of the contract ." The recipient of that warning was
Local Union President Mineer , which fact detracts
somewhat from the coercive impact of Young ' s statement.
Nevertheless , when a supervisor in administering discipline
states that the contract the Union negotiated requires the
imposition of the discipline , the natural consequence of
such a statement is to diminish the employee's regard for
his bargaining agent . When , as here , the statement is
incorrect , it may fairly be found to constitute unlawful
interference within the meaning of Section 8(a)(l) of the
Act.
Paragraph 5(a)(3) of the complaint alleges violations of
Section 8(a)(l) in Schlifke 's statements to the machine
shop employees described in connection with paragraphs
12(v), (w), and (x) of the complaint , discussed supra.
Schlifke's statements at that time that the men should act
as individuals rather than as a group would seem to
constitute a warning that concerted activity would lead to
loss of benefits or other reprisals , and therefore violated
Section 8(a)(1).
2. Alleged acts of general discrimination
As discussed above, paragraphs 7, 8, and 9 of the
complaint allege discrimination against named individuals.
Paragraph 6 alleges that the Company discriminated
against all its employees in three respects because of their
union activity and to discourage union membership.
The first of these matters concerns "a program
commencing on or about June 1, 1965, and continuing to
date, requiring its employees to learn new incentive wage
rate jobs, and contemporaneously transferring said
employees from job to job thereafter so as to deter them
from meeting the minimum standards ...." By its terms
the allegation appears subject to dismissal under the
limitations proviso of Section 10(b), as a practice valid on
its face followed since June 1965 could not be the subject
of a complaint based on a charge filed in March 1966.
Apart from that, the evidence in support of the allegation,
as the Union concedes in its brief, "is not a model of
clarity," and the evidence produced by the Company in
the form of employee work records supports the
Company's contention that its policy of putting employees
on varied tasks and different machines was not responsible
for low production. The record does establish that in the
fall of 1965, Schlifke repeated earlier instructions he had
given foremen that employees were to move from job to
job, and that some of the employees had misunderstood
the policy.
The next allegation, that the Company enforced its
rules in order to discourage union membership, is likewise
WALD MANUFACTURING CO. 849
outlawed by the limitations proviso, as discussed at the
outset of this decision in connection with the individual
discharges and layoffs. As the Union states in its brief,
"the warning notice system was operating at full blast
several months before . . . October 22, 1965." The Union
argues that the application of the rules within the
limitations period was unlawfully motivated, and that the
prelimitations period is mere background to establish
continuing illegal conduct. But the record does not
establish any illegal application or discriminatory
application of the rules which are valid on their face. The
Union' s argument appears to be that but for the Union
the Company would have abandoned or stopped enforcing
its rules. This speculative finding is one I am not ready to
make on this record.
Paragraph 6(c) of the complaint alleges that the
Company "discriminated . . . in order to discourage
membership in the Union" by advising its employees that
their failure to meet the "minimum piece work incentive
average" unilaterally established by [the Company] would
be considered in determining layoffs. As I have found that
the piecework incentive average was not unlawfully
established, I find no violation in considering failure to
make it as a factor in determining layoffs.
CONCLUSIONS OF LAW
1. The Company by indicating to employees that
discipline they were receiving was required under the
agreement negotiated by their bargaining representative,"
and by warning employees that engaging in group or
concerted activity would lead to reprisals engaged in
unfair labor practices affecting commerce within the
meaning of Sections 8(axl) and 2(6) and (7) of the Act.
2. By changing work rules and other terms and
conditions of employment without bargaining with the
Union, by refusing to furnish the Union with information
it requested relevant to its fulfillment of its role as
bargaining representative, by insisting on administering
the contract in ways which denigrated the Union and
placing obstacles in the Union's efforts to fulfill its role in
helping to administer the contract, and by administering
the contract in bad faith for the purpose of preventing the
effective operation of the grievance machinery, the
Company engaged in unfair labor practices affecting
agreement in question has long since expired , the order
recommended below contains no specific interdiction of this conduct. I do
not regard the violation which accompanied the discipline as warranting a
rescission of the lawful penalty.
commerce within the meaning of Sections 8(a)(5) and (1)
and 2(6) and (7) of the Act.
THE REMEDY
The conventional remedy for the violations here found
is an order to cease and desist therefrom, and,
affirmatively, to bargain, upon request, and to post
notices. The scope of this case suggests some further
discussion of how effectively to remedy the situation here
presented.
That situation is, to my mind, nothing less than the
collapse and failure of the national policy in favor of
collective bargaining. An employer, initially so hostile to
the advent of a labor organization that he portrayed its
leader as the fiend incarnate, has managed by invoking
technicalities and every procedural delay known to the
law, to prevent that organization from effectively fulfilling
its role as statutory bargaining representative. To the
Company the question posed by the advent of the Union
appears to have been, "Which is to be master, - that's
all." Like the employer in Wausau Steel Co. v. N. L. R. B.,
377 F.2d 369, 372 (C.A. 7), the Company deliberately
practiced brinkmanship in seeing how far it could go in
hobbling the Union and still stay within the law, and like
that employer the Company here overstepped the line and
fell off the brink into violation. It is perhaps asking too
much to hope that a mere order to sin no more and to
obey the statute will really put in order a situation in
which the Company has apparently been guided by a
determination to make the Union either litigate or
abandon every little matter the Union has sought to raise.
The remedy is peculiarly ineffective insofar as the
violations deal with maladministration of an expired
contract.
The Company argues that the Union was
uncompromisingly hostile to it, that the Union constantly
berated and accused it, and that the Union filed an
avalanche of charges at the very opening of the
contractual relationship. There is some substance to these
countercharges, but the original antagonism was by the
Company and in any event it is the Company that is on
trial here.
I am not optimistic that issuance of this Decision or
even its ultimate embodiment in an enforcement decree,
should that eventuate, will really cure the situation at this
Company. Cf. N.L.R.B. v. Warren Co., 350 U.S. 107;
N.L.R.B. v. Berkley Machine Works, 189 F.2d 904 (C.A.
4). What is needed is a fundamental change of approach,
and this probably requires a change of personnel among
both company and union representatives. It is possible,
however, that this extensive litigation may help clear the
atmosphere for a fresh beginning, and it is with that hope
that I have drafted a somewhat unconventional notice.
[Recommended Order omitted from publication.]