Wheeling Pacific Co.Download PDFNational Labor Relations Board - Board DecisionsMar 26, 1965151 N.L.R.B. 1192 (N.L.R.B. 1965) Copy Citation 1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD expressions of Monsignor Cavanagh about Whitehead were not "in a Guild context" and that he was not discharged because of his union activity, but because of his work performance and demeanor in general, and as culminated in the two incidents of February 25 and March 3, 1964. Accordingly, I shall recommend that the com- plaint be dismissed. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not violated Section 8(a)(3) or (1) of the Act as alleged in the complaint. RECOMMENDED ORDER It is recommended that the complaint be dismissed. Wheeling Pacific Company and International Association of Machinists , AFL-CIO, District Lodge No. 87, Local Lodge No. 653 . Cases Nos. 20-CA-2435 and ?0-CA-2673. March 26, 1965 DECISION AND ORDER On October 19, 1964, Trial Examiner Maurice M. Miller issued his Decision in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that the Respondent had not engaged in certain unfair labor practices alleged in the com- plaint and recommended that such allegations be dismissed. There- after, the Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof. 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 these cases to a three- Inennber 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 rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in these cases and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. We agree with the Trial Examiner's conclusion that the Respond- ent violated Section 8(a) (5) of the Act. For the reasons fully explained in the Trial Examiner's Decision, Respondent's entire course of bargaining, both before and after the settlement agree- ment, persuades us that the Respondent was not bargaining in good faith in an effort to reach an agreement with the Union but was, 151 NLRB No. 121. WHEELING PACIFIC COMPANY 1193 instead, intent upon disparaging and undermining the Union and working toward a stalemate. Evidence of this is found in Respond- ent's abandonment and failure to reinstate its merit raise program during some 18 months of bargaining on the pretense that it might be considered an unfair labor practice despite assurances by union officials and the Regional Director of the Board that merit raises would not be deemed unlawful. It appears from Resp`b^rd^rt^s demand ''o-f..a+ ^ - , for a contract which would have limited its duration to less than a year and then, more restrictively, to 6 months and, at one time, to a period of 2 months, with no automatic renewal clause, despite Respondent's commitment in the settlement agreement that the term of agreement would be for 1 year from the date of signing, with a standard, 60-day reopening clause. Again, Respondent's proposed "management rights" clause, insisted upon for a full year, vested in Respondent complete con- trol over numerous bargaining subjects and Respondent's discus- sions with respect thereto were, as characterized by the Trial Exam- iner, "empty talk" and "mere surface motions of collective bargain- ing." Respondent's bargaining position on wage rates coupled an in- sistence that neither at the outset, nor during the term of any agreement reached, could there be a general wage increase, with suggested wage rates for evaluated jobs with both minimum and maximum standards below existing wages for many employees per- forming those jobs at the time of negotiations. During a substantial period of bargaining, the Respondent thwarted bargaining on its wage rate proposals by its rejection of limited plant job surveys which were needed by the Union in order to develop a systematic progression of wage rates. And, as fully appears from the Trial Examiner's Decision, Respondent's bargaining with respect to vaca- tion privileges, seniority, and bulletin board space, and its refusal to furnish financial data upon request to support its purported inability to grant wage increases,' likewise show that Respondent was not engaged in meaningful negotiations. Although Respondent modified certain arbitrary positions it had taken prior to the December 31, 1962, settlement agreement, its delaying tactics continued and controvert any contention of Re- spondent's good faith. Moreover, its failure to reinstate its merit raise program, first on the pretext that it might be the basis for an unfair labor practice charge, and later on the ground that the settle- ment agreement (on an interpretation the Trial Examiner properly i See Cincinnati Cordage and Paper Company, 141 NLRB 72, 77; Peerless Distributing Company, 144 NLRB 1510, 1514. 1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concluded was wholly untenable) forbade merit raise proposals, was clearly pretextuous and establishes that Respondent continued to bargain without a good-faith attempt to reach an agreement. We conclude, as did the Trial Examiner, that Respondent's con- duct, when viewed in its totality, supports the conclusion that Respondent has refused to bargain in good faith and thereby violated Section 8(a) (5) of the Act. ORDER Pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order, the Order recommended by the Trial Examiner , and orders that Respondent, Wheeling Pacific Company, its officers , agent, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.2 2 The address of the Regional Office, given immediately below the signature line at the bottom of the notice , is amended to read: 13050 Federal Building , 450 Golden Gate Ave- nue, Box 36047, San Francisco , California, Telephone No. 556-3197. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon successive charges duly filed and served , dated October 5, 1962 , and April 19, 1963, respectively , the General Counsel of the National Labor Relations Board caused a consolidated complaint and notice of hearing to be issued and served on August 26, 1963, upon Wheeling Pacific Company, designated as Respondent in this decision . Therein, Respondent was charged with unfair labor practices affecting commerce , within the meaning of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended , 61 Stat . 136, 73 Stat. 519. Thereafter, through an answer duly filed, Respondent conceded the consolidated complaint 's jurisdictional allega- tions , but denied the commission of any unfair labor practice. Pursuant to notice, a hearing with respect to the issues was held at San Farncisco, California, on various dates between October 29 and November 6, 1963, before Trial Examiner Maurice M. Miller. The General Counsel and Respondent were represented by counsel ; the Union was represented by two business representatives. Each party was afforded a full opportunity to be heard , to examine and cross -examine witnesses , and to introduce evidence pertinent to the issues . When their testimonial presentations were complete , counsel waived oral argument . Subsequently , however, representatives of the General Counsel and Respondent filed helpful briefs. These have been fully considered. Upon the entire testimonial record, documentary and other evidence received, and my observation of the witnesses , I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Respondent is a California corporation engaged in the manufacture and distribution of pipefittings , couplings , and related products at its Woodlake, California , plant. During the 12-month period which preceded the consolidated complaint 's issuance, Respondent, in the course and conduct of its business operations , sold and shipped from its Woodlake , California , plant products valued in excess of $50,000 directly to points and places located outside the State of California. Upon the consolidated complaint 's jurisdictional allegations , which are conceded to be accurate , I find that Respondent is now, and at all material times has been , an employer within the meaning of Section 2(2) of the Act , engaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended . With due regard for the jurisdictional standards which the Board WHEELING PACIFIC COMPANY 1195 presently applies (see Siemons Mailing Service, 122 NLRB 81 and related cases) I find assertion of the Board's jurisdiction in this case warranted and necessary to effectuate statutory objectives. II. THE LABOR ORGANIZATION INVOLVED International Association of Machinists , AFL-CIO, District Lodge No. 87, and Local Lodge No. 653, are labor organizations within the meaning of Section 2(5) of the Act, as amended; Local Lodge No. 653 admits Respondent 's employees to membership. III. THE UNFAIR LABOR PRACTICES A. Issues Within the General Counsel's consolidated complaint, Respondent is charged with a refusal to bargain collectively with the Union as the exclusive collective-bargaining representative of Respondent's workers within a unit appropriate for the purposes of a collective bargain. Respondent's refusal to bargain within the meaning of the statute, so General Counsel contends, was made manifest through the firm's refusal to "negotiate meaningfully" or bargain collectively in good faith on or about April 8, 1962, and thereafter; by Respondent's refusal to continue its long-established policy with respect to periodic merit wage increase grants for workers within the bargaining unit, despite the Union's request that it continue the policy in question; and by the firm's refusal to produce or make available, upon request, financial data sufficient to substantiate its claimed lack of ability to grant a wage increase because of the pres- sures of competition. Respondent denies any refusal to negotiate meaningfully or bargain collectively in good faith; protests that its present failure or refusal to grant merit increases derives from its compliance with a settlement agreement negotiated, subsequent to the filing of the first of the present charges, with Union and Board representatives; and contends that its conceded refusal to submit various financial records for proposed union audit reflects no refusal to bargain. B. Facts 1. Background General Counsel contends, Respondent concedes, and I find that all production and maintenance employees of Respondent at its Woodlake, California plant, includ- ing shipping and receiving department employees, and regular part-time employees, but exclusive of office clerical employees, salesmen, professional employees, guards, and supervisors as defined in the Act, as amended, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9(b) of the statute. On November 21, 1961, a majority of Respondent's workers within the bargaining unit described, through a secret ballot election conducted under the super- vision of the Regional Director for the Board's Region 20, designated and selected the Union as their exclusive representative for the purpose of collective bargaining with the Respondent firm. Thereafter, on November 30, 1961, the Regional Direc- tor, functioning as the Board's agent, certified the Union as the exclusive collective- bargaining representative of Respondent's workers within the unit described, approxi- mately 70 in number, for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, or other terms and conditions of work. On December 20, 1961, union representatives, by letter, requested Respondent to bar- gain with them as the representative of Respondent's employees within the bargaining unit which the Board had certified as appropriate; their request was accompanied by a contract proposal. Throughout the negotiations which ensued, Respondent was represented by Homer Martin, a California Association of Employers representative; Thurman W. Powell, Respondent's executive vice president and general manager, and Charles Mann, Respondent's plant superintendent, were normally present, with Martin, at various bargaining sessions. Lawrence Sargenti, business representative of the Union's Dis- trict Lodge No. 87, represented the Union at the outset and for most of the negotia- tion sessions; subsequently, he was joined by William R. Whiteley, a District Lodge assistant business representative. Various members of a union plant committee like- wise were present at most negotiating sessions. General Counsel contends, Respond- ent concedes, and I find that Powell and Mann were, throughout the period with which this case is concerned, supervisory officials of Respondent, functioning as the firm's agents within the meaning of Section 2(11) and (13) of the Act, as amended. 1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Martin likewise, throughout the period with which this case is concerned, functioned as Respondent's agent, within the meaning of Section 2(13) of the statute. No ques- tions have been raised with respect to the status of Sargenti and Whiteley as union spokesmen. 2. General course of the negotiations Negotiations began January 15, 1962. Respondent's representatives met with union spokesmen, thereafter, 36 times, until July 9, 1963, when their face-to-face discussions were terminated. (Three of these joint sessions-those held on March 7, 8, and 12, 1963, specifically-seem to have been completely devoted to discussions regarding a visit to Respondent's plant by union representatives, for the purpose of conducting job studies precedent to the preparation of definitive job descriptions. The remaining 33 sessions were devoted to discussion of contract proposals.) Through- out the negotiations, except for a 2-month hiatus after the Union filed the first refusal-to-bargain charge on which the present case rests, meetings were scheduled every 2 or 3 weeks. With the exception of possibly one or two occasions, these sessions were conducted as scheduled. During the period noted, 15 contract proposals, complete or partial, were proffered for consideration; these were supplemented by correspondence and compilations of relevant data. Reference has already been made to the Union's first contract pro- posal, presented by correspondence before the negotiations began. Respondent's first counterproposal, which union representatives received between the first and second bargaining sessions , was likewise dispatched through the mails. Thereafter, between March 8, 1962, and July 1, 1963, specifically, Respondent presented 10 further con- tract proposals. Union representatives proffered three proposals, the last dispatched May 15, 1963, through the mails. Following the second bargaining session, held January 29, 1962, Union Represen- tative Sargenti proposed that the services of a Federal mediator be sought. Subse- quently, Federal Commissioner of Conciliation Dunmire presided at the fourth and fifth bargaining sessions , held on February 28, 1962, and March 20, respectively. (Meanwhile, union representatives had filed a refusal-to-bargain charge, in Case No. 20-CA-2246, specifically, dated March 15, against the respondent firm. This charge was subsequently withdrawn on June 21, 1962.) Thereafter, direct negotiations pro- ceeded until September 25, 1962, when the parties held their 21st bargaining session. On October 5, union representatives filed the first refusal-to-bargain charge upon which the present consolidated case rests . Negotiations were thereupon suspended, except for one telephone discussion regarding a discharge, for 2 months. On Decem- ber 31, 1962, the Board's Regional Director approved a purported settlement agree- ment with respect to the charge. Negotiations were resumed, presumably pursuant to the settlement's terms, with the first session being held on January 4, 1963; Federal Commissioner of Conciliation Duncan participated. Between January 4, 1963, and May 10, Conciliator Duncan presided at six nego- tiating sessions. During this period-on April 19, 1963, specifically-union repre- sentatives filed the second refusal-to-bargain charge from which the present consoli- dated case derives. After the charge was filed Conciliator Duncan presided at two bargaining sessions , the May 10 session, previously noted, and the fourth session thereafter held June 20, 1963. Negotiators for the Union and Respondent met for the last time July 9, 1963. Their conference was terminated when Business Representative Whiteley commented that the negotiations were "getting nowhere"; Respondent's spokesmen declared that fur- ther discussion would be futile, since little likelihood appeared that agreement could be reached. Within letters dated July 11 and 23, 1963, however, Whiteley declared that union representatives were "still willing to meet at any reasonable time to negotiate further" regarding a contract. For Respondent's management, however, Martin, within a letter dated July 23, which presumably crossed Whiteley's last communication, expressed the view that negotiations had been concluded by mutual agreement; that the negotiators, when their July 9 session concluded, had been agreed that "further negotiations would be fruitless, futile and a waste of time" since a genuine impasse had been reached; and that "for this and other reasons" requests for further meetings would be denied. Whiteley's reply, dispatched on August 6, challenged the correct- ness of Martin's view with respect to the July 9 posture of the negotiations. He declared that: The record shows that negotiations for that particular meeting were concluded as we had come to an impasse , but the door was left open for further negotia- tions. In that same meeting we stated we were ready and willing to meet at any time. WHEELING PACIFIC COMPANY 1197 The union representative pointed out that Respondent had been presented with a demand to make the company books available for audit through a public accountant. He likewise declared, once more, that the Union was "ready and willing to meet at any time" for further negotiations. No such negotiations have, however, been con- ducted On August 26, 1963, the General Counsel's consolidated complaint with respect to this case, previously noted, was issued and served. 3. Negotiations on specific contract proposals a. General statement Through his consolidated complaint, General Counsel presently requests a deter- mination that the totality of Respondent's conduct, since April 8, 1962, specifically, demonstrates its refusal to negotiate meaningfully or bargain collectively in good faith. Within the complaint, however, two specific features of the firm's course of conduct have been singled out for special mention; presumably General Counsel would contend that these particular aspects of Respondent's behavior, separately considered, will themselves support a determination that the firm's management failed performance of its statutory duty. (General Counsel's complaint merely suggests, with something less than perfect clarity, that Respondent's refusal to supply financial data reasonably calculated to support its bargaining position, together with its refusal to grant merit wage increases consistently with previous policy, constitute separately cognizable, per se, refusals to bargain. His brief, however, makes perfectly clear his contention that these features of Respondent's course of conduct should be consid- ered "individual" statutory violations.) Specifically designated departures from the statutory norm nevertheless may not be considered solely in isolation. General Coun- sel contends that realistic appraisal of Respondent's course of conduct calls for consideration of its total behavior pattern; that both features of Respondent's course of conduct particularly designated "exemplify" proscribed tactics which the firm's management followed during negotiations; and that both contributed significantly to the pattern of behavior which the consolidated complaint challenges. Beyond those features of Respondent's course of conduct which have been specifi- cally set forth within the consolidated complaint, General Counsel has cited a num- ber of contract questions with which the negotiators dealt; he contends that behavior patterns revealed by the firm's negotiators with respect to these particularized sub- jects of discussion reflect their determination to make the negotiations under con- sideration "little more than a transparent shell game" since they reveal Respondent's lack of any sincere desire to compose differences or reach a contractual consensus, contrary to the statute's mandate. Necessarily, these challenged features of Respondent's course of conduct must be reviewed separately. For the most part, however, consideration will be confined to those aspects of Respondent's behavior which persuasively reveal management's "state of mind" rather than the sufficiency of each type of conduct, separately con- sidered, to sustain a determination regarding Respondent's purported refusal to bar- gain "meaningfully" with good faith. b. The term of the agreement The Union's first contract proposal, though no effective date was specified, did provide for the agreement's automatic renewal on a year-to-year basis, absent receipt of a 60-day written notice from either party regarding its desire to change, modify, or terminate any contract reached. Respondent's first counterproposal, however, called for an agreement effective for 1 year from the date of the Union's certification without any automatic renewal provision; management's proposal merely specified that upon a notice given 60 days prior to the contract's stated termination date, with respect to the desire of either party to negotiate a new contact, such negotiations should be carried on in good faith. (Prior to Respondent's submission of its counter- proposal, during the January 15, 1962, session, the negotiators had, so Sargenti under- stood, agreed that the effective date of any contract reached would be the date when the parties reached a complete consensus.) On July 16, 1962, Respondent proposed a contract effective from January 1, 1962, to January 1, 1963, with no provision for renewal or renegotiation. Sargenti protested Respondent's specification of contract dates which reflected a significant deviation from the consensus reached at the first bargaining session relative to the proposed agreement's effective date; so far as the records show, however, Respondent's representative presented no justification for his proposal. 1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When the parties met on September 25, Respondent presented a contract proposal containing a November 30, 1962, expiration date with no provision for automatic renewal or renegotiation. Union representatives promptly asked Respondent's nego- tiator whether this proposal was seriously presented; he replied affirmatively. Sar- genti, I find, then asked whether Respondent intended to "decertify" the Union after November 30; the present record, however, reveals no reply. Shortly thereafter, union representatives filed their second refusal-to-bargain charge in Case No. 20-CA-2435, previously noted. With negotiations suspended, CEA Representative Martin, functioning in Respondent's behalf, signed the December 31 settlement, previously noted, which included a commitment by Respondent's manage- ment that "term of agreement [will] be for 1 year from date of signing with standard 60 day reopening clause." When negotiations resumed January 4, 1963, however, Martin, so Sargenti testified, confirmed a report by Conciliator Duncan that he believed "he had no authority to negotiate an agreement for an extended period of time" saying that he was not sure of his right to do so, since the Union's certification year would expire less than 1 year from "that" date. (Which date Martin meant does not appear to have been specified; the Union's certification year, technically, had already passed.) Respondent, I find, subsequently changed its position, but only after Conciliator Duncan sought advice from the Board's Regional Office. None of Respondent's postsettlement contract proposals, however, contained term provi- sions consistent with its settlement commitment prior to Martin's presentation of his final July 1, 1963, draft; that proposal provided blanks for later completion with respect to the agreement's effective date and termination date, and provided for the agreement's automatic renewal from year to year, absent 60 days' notice-prior to the stated termination date-regarding either party's desire to change, alter, amend, or terminate their contract. c. Union security Regarding union recognition , the first union proposal contained a conventional, statutorily sanctioned "union shop" provision. Confronted with a company counter- proposal submitted January 22, 1962, which contained no reference to union security, union representatives declared, during their January 29 session , that they could not recommend any proposal to Respondent's workers which did not contain a "standard union shop" clause. CEA Representative Martin declared, however, that he would not sign a contract which contained such a provision. Sargenti, I find, countered this with a declaration that if Respondent's workers found "something other than a union shop agreement" acceptable, the union representatives would execute a contract upon such terms. On August 8, 1962, the Union presented a proposal which contained a so-called agency shop provision. Respondent, during the next bargaining session, rejected this proposal. Throughout the negotiations, thereafter, Respondent's representatives main- tained their opposition to union-security provisions of any sort; with specific reference to the so-called agency shop, management's spokesmen declared that the Union's proposal would not even be discussed seriously, since, to all intents and purposes, any provisions for such a shop would be nothing but a union-shop clause, couched in different contract language. While a witness, Martin insisted that Respondent's spokesmen had not refused to discuss union security; he declared, credibly, that the subject had been canvassed at length, in "practically every aspect," and that Respondent had rejected both union proposals with respect to union security upon "philosophical" grounds. On January 29, 1963, union representatives restated their first contract proposal for a conventional, statutorily sanctioned union shop. Sargenti testified without con- tradiction, however, that this proposal had been formulated primarily for the conven- ience of the Federal conciliator, so that he might know the original positions taken by each party. Despite the professed willingness of union representatives to negotiate either "union shop" or "agency shop" provisions, deadlock on this question prevailed until the negotiations were terminated. d. Hours of work, overtime , holidays, and vacation The negotiations with respect to hours of work and overtime developed differences regarding a definition of "emergency situations" sufficient to justify work on a split- week basis, inclusive of Saturday, when overtime premium pay would not be paid for Saturday work by workers who might not yet have worked their normal 40-hour week. During the January 10, 1963, session, union representatives declared their willingness to concede that overtime pay for Saturday work by such workers should not be required whenever there was some machinery breakdown which had inter- WHEELING PACIFIC COMPANY 1199 fered with Respondent's regular weekly production schedule. Respondent, how- ever, consistently sought a contractual provision which would recognize the existence of emergency situations, sufficient to void the firm's obligation to pay overtime for Saturday work, when orders were received too late in the week to permit their com- pletion without such Saturday work. Despite extensive discussion, this was Respond- ent's position when negotiations terminated. With respect to holidays, the union negotiators took the position throughout that all such days contractually recognized should be fixed and not susceptible to variation based upon employee preferences. Respondent's spokesmen proposed that one "float- ing" holiday should be recognized, subject to determination at the workers' option; specifically, Respondent's final proposal was that workers should have a collective choice with respect to receiving a holiday on the day before or the day after the fixed Christmas holiday. Regarding vacations, the negotiators found themselves in dispute both with respect to the amount of vacation time to be granted and the number of hours employees would have to work to qualify therefor. Throughout the negotiations-beginning with the February 13, 1962, session at least-Respondent consistently declared its reluctance to concede any increased cost items ; union demands for more vacation time were characterized as a cost item. Not until January 29, 1963, however, did Respondent raise a question with respect to the number of hours which employees would have to work to qualify for vacations; Martin then proposed for the first time- possibly as the result of a mistranscribed note-that workers should be required to show 1,920 hours of work, with credit for time off due to sickness, accidents, or excused absences, within 1 calendar year, to qualify. This was later corrected to read 1,820 hours. The union spokesmen responded, first, with a proposal that 1,500 hours be deemed sufficient. (During subsequent negotiations with respect to this question, the Union at one time proposed to recommend less favorable sick leave benefits, provided Respondent granted further vacation benefits; this proposal was rejected.) Within the Union's final contract proposal, presented May 15, 1963, sug- gested vacation provisions reflect a willingness to raise the number of service years required of workers to qualify for specified vacation periods; further, union nego- tiators revealed their willingness to concede 1,600 work hours, within the calendar year, as a qualification requirement. These proposals evoked no matching company concessions. Respondent's final counterproposal merely reflected the firm's previ- ously suggested qualification requirement, to show that it desired 1,820 hours; 1 full year of employment thus defined, under management's proposal, would entitle work- ers to 1 vacation week, while 5 full years of employment would entitle them to 2 weeks. e. Sick leave With respect to sick leave, union negotiators first proposed that sick leave accumu- lation be permitted at the rate of one-half day per month of employment, with no accumulation limit. Respondent's first counterproposal contained a provision which called for the same accumulation rate, with a 30-day maximum. In discussions which followed, some question arose as to whether Respondent's policy, prior to union certification, had limited sick leave accumulation to 30 days or left it without limit; so far as the record shows, Respondent's past policy with respect to sick leave accumulation had never really been defined. During the February 13, 1962, session, however, Respondent's representative proposed to limit sick leave privileges to regular workers, and to limit accumulation to 10 days; the only explanation proffered for this restrictive change was a declaration that Respondent had not previously had any sick leave limit, and that 30 days was too much. Subsequently, within the settle- ment which Respondent's representative signed, previously noted, Respondent agreed to sick leave accumulations totaling 15 days; this concession thereafter continued to reflect the company's position. Union negotiators, reserving a statement of their policy with respect to this question, declared their readiness to recommend the 15-day limit in return for greater vacation benefits; Respondent's negotiators , however, refused to consider such a suggestion. f. Seniority The Union's first proposal included a provision that seniority, defined to mean the length of a worker's continuous service within a specific classification, should govern with respect to promotion, layoff, or recall; Respondent, however, was conceded the right to make exceptions whenever a given worker's greater competency and effi- ciency had been thoroughly demonstrated. Workers deeming themselves unjustly rated would be permitted recourse to arbitration. Respondent's first counterpro- 1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD posal, however, made clear its position that "ability, competency and merit" should be given first consideration in cases of promotion, demotion, layoff, and rehire, with seniority as the firm's second consideration, management proposed to reserve its right to function as the "sole judge" of these factors. The major differences between the two proposals thus could be found in. (1) Respondents proposal that management should be recognized as "sole judge" with respect to each worker's competency, ability, and merit; (2) Respondents' failure to provide workers with some contractually sanctioned recourse should they feel that their merits had not been properly rated; and (3) Respondent's further proposal that seniority should be considered broken upon discharge, resignation, layoff, leave of absence for more than 90 days, unexcused absence, or failure to report for work within 2 days after recall. (Contrary to General Counsel's contention, neither party's first proposal contained a provision that workers would have to serve a probationary period of set duration before acquiring seniority rights. Though Respondent's draft contract defined "regular" employees as workers with 120 working days in the firm's employ, nothing in the firm's proposal suggested that seniority privileges should be limited to such employees.) Throughout the negotiations, Respondent maintained its position with respect to seniority substantially without change. Basically, management took the position that seniority should be considered determinative with respect to promotions, demotions, layoff, and rehire, only between workers considered equal in ability, competency, and merit, within Respondent's sole judgment. (During their May 25, 1962, session, union representatives, with respect to wage matters, requested Respondent, inter alia, to set up a system of wage progression, based upon seniority, for workers within various labor grades contractually defined. This request was rejected. Respondent's claimed basis for rejection of this progression will be developed further later in this decision; for the present note need only be taken that Respondent refused to recog- nize seniority as a determinative factor in wage progression despite a concession that no more than a small percentage of the firm's workers performed tasks requiring any previously learned skill.) On June 11, having learned of certain recent plant layoffs-presumably for lack of work-union representatives queried Martin regarding layoff procedure, and requested Respondent to provide a seniority list, with dates of hire shown for all bargaining unit workers, presumably to permit a determination regarding the role played by seniority in connection with the layoffs. (Further, during their June 11 session, Sargenti raised questions regarding the judgment factors which firm manage- ment would consider determinative when considering (1) promotions from "machine operator" positions to "set-up" jobs and "leadman" positions; (2) promotions to higher rated positions. Martin was asked whether Respondent would be willing to spell out determinative factors within a seniority clause. Consideration of the sug- gestion was promised; so far as the record shows, however, Respondent never spelled out the judgment factors which management would consider determinative in such situations.) Such a document was later furnished pursuant to a June 14 covering letter; Martin, however, specifically disclaimed any concession that it constituted a formal seniority list. Within a June 20 letter Martin reiterated Respondent' s contention that, while "seniority would prevail as a matter of general principle" for purposes of layoff and termination, management would continue to maintain its rights to qualify seniority, considered as a determinative factor, based on judgments regarding each worker's ability, competency, and efficiency. The union representatives were advised, there- fore, that any prior layoffs presumably made without regard to seniority had really been directed by management's sole judgment, with respect to the ability, compe- tency, and efficiency of the workers terminated. The seniority provision within the Union's second contract proposal, proffered on August 18, 1962, specifically, substantially paralleled the provision previously sug- gested by Respondent's spokesman, save for a provision which merely recognized management's right to be the "initial judge" of each worker's ability, competency, and merit. Respondent's next counterproposal, however, proffered September 25, specifically, continued to reflect the firm's desire to exercise "final" judgment with respect to such matters, which judgment would be given first consideration in cases of promotion, demotion, layoff, and rehire. Shortly after this, the Union's second refusal-to-bargain charge, previously noted, was filed. Within the December 31 settlement, purportedly diapositive of the charge, Respondent's representative agreed to a provision that: "Employer's proposal that it be the `sole judge' on seniority be dropped, and standard seniority definition be WHEELING PACIFIC COMPANY 1201 adopted." Respondent's seventh contract proposal, proffered for consideration at the January 10, 1963, session, contained a seniority clause, however, which pro- vided that: (1) only "regular" employees would have seniority rights, computed as of their dates of hire; (2) "ability and efficiency being equal," seniority would govern in demotions, layoffs, and rehires; and (3) seniority would be broken by discharge, resignation, leave of absence for more than 90 days, unexcused absence, and failure to report for work following a layoff within 3 working days of recall. This proposal by management was the first which contained a specific limitation of seniority privi- leges to "regular" plant workers. Such workers were to be contractually defined as workers who had completed 90 days of work for the firm. (Respondent's "regular employee" contractual definition had been broached within its first counterproposal; such an employee had been therein defined as one who had completed an aggregate of 120 working days with the firm. Respondent's January 10 proposal was the first to reflect a lesser period for qualification as a regular worker.) The proposal con- tained no reference to Respondent as the "sole" or "final" judge of ability or effi- ciency; presumably grievances regarding the thrust of the proposed seniority clause would have to be processed, therefore, pursuant to the contractual grievance proce- dure. Sargenti, I find, protested the provision that seniority would be lost following a 90-day-plus leave of absence. On March 8, Respondent presented a contract proposal which, in its original form at least, duplicated the firm's January 10 proposals relative to seniority. Business Representative Whiteley, within a letter to Martin dated March 19, noted that Respondent 's proposal did not contain the promised "standard" seniority clause. The CEA representative, within a reply subsequently directed to Sargenti, professed doubt with respect to what constituted a "standard" clause. On April 10, 1963, however, Respondent presented a contract proposal with a provision similar to the Union's previous proposal declaring its right to function as the "initial" judge of its plant workers ' ability and efficiency . (Management now proposed that seniority should be considered broken, inter alia, by leaves of absence over 30 days, and failures to report for work, after a layoff, within 5 working days of recall.) Despite the presumptive significance of such language, the proposal con- tained nothing which specifically guaranteed any worker's right to challenge manage- ment's "initial" judgment, whenever such a judgment might be promulgated as deter- minative with respect to matters of demotion, layoff, rehire, or promotion. During their May 15 session , union representative presented a partial contract proposal; with respect to seniority, it paralleled the language of Respondent's April 10 contract draft. (There were only two differences: (1) The Union proposed that seniority should be broken only by layoffs for more than one year, instead of by lay- offs for more than 30 days. Further, the Union's proposal contained no commitment that seniority would in no way convey to workers any vested interest in given posi- tion. ) During the subsequent May 27 session , union representatives declared their willingness to revise their position regarding the period of time required for workers to achieve "regular" status; they agreed to lengthen the probationary period for Respondent's workers from 30 to 60 calendar days. Respondent's final written proposal, proffered at the negotiators ' July 1, 1963, ses- sion, reflected the firm's persistent position that regular workers would have to com- plete 90 days' work for the Company. With respect to seniority, however, Respondent proffered a modified proposal, substantially comparable to the Union's prior submis- sion. Both parties were now agreed that "ability and efficiency being equal" seniority should govern demotions, layoffs, rehires, and promotions, with management func- tioning as the "initial" judge of ability and efficiency. The firm's proposal further reflected a consensus that seniority should be considered broken , inter alia, by leaves of absence exceeding 30 days and failure to report for work after layoff within 5 working days after recall. Respondent continued to insist, however, that seniority should likewise be broken by layoffs of more than 90 days, and that its recognition should in no way convey any vested interest with respect to specific jobs. (Though Respondent did not concede specifically that grievances bottomed upon the proposed seniority clause would be processed through the contractual grievance procedure, such an interpretation was not precluded.) When negotiations were terminated, therefore, differences between the negotiators with respect to seniority had narrowed to: (1) their different proposals with respect to the length of the probationary period which workers would have to serve to achieve "regular" employee status; (2) their differences relative to the length of the layoff periods which would suffice to break seniority; and (3 ) union reluctance to concede , specifically , that seniority should in no way convey to workers a vested interest in particular positions. 783-133-66-vol. 151-77 1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD g. Grievance procedure With respect to grievance procedure, the Union's original proposal provided for arbitration as the final determinative step. Substantially, the union representatives proposed that, within 5 days after submission of a grievance for arbitration, Respond- ent and the Union each would select one member for an arbitration board, with the board members then selecting a third; the decision of a majority would be deemed final. Respondent's counterproposal, however, called for a committee of four, with two members from each side, to process grievances, instead of a three-member board of arbitration. Respondent proposed further that whenever the committee could not reach a decision it could suggest further conciliatory measures. Management spokes- men clearly registered their dislike for compulsory dispute references to some tripar- tite board. During their March 20, 1962, negotiations, when Respondent's second counter- proposal was presented, spokesmen for the firm categorically refused union sugges- tions that the draft should include a compulsory arbitration provision, or some pro- vision for another third-party method to dispose of grievances. When Martin was asked how grievances not settled by mutual agreement might be resolved, he noted merely that the firm's proposed clause did not preclude strikes. Sargenti protested that the Union did not wish to negotiate a contract which would permit strikes; Martin then promised modification of the firm's proposal. During the July 16 session, when Respondent's fourth contract draft was presented, management spokesmen renewed their first proposal, with a further provision that should the contractual grievance adjustment committee prove unable to reach a major- ity decision, it could suggest further conciliatory methods for the contract parties to consider, including arbitration; however, Respondent proposed that a committee majority would have to vote for arbitration before it could be used. Respondent repeated this proposal before negotiations were suspended, following the Septem- ber 25 session. Within the December 31 settlement, previously noted, which preceded their resumption of negotiation's Respondent's spokesman agreed to: Provide in grievance procedure clause that in case of a deadlock that it be man- datory that the Federal Mediation and Conciliation Service be called in. Consistently with this commitment, Respondent presented its January 10, 1963, con- tract proposal; therein the firm suggested that, when grievances could not be resolved by majority decisions of the contractually designated grievance adjustment board, the services of the Federal Mediation and Conciliation Service would be promptly sought "to assist them in their efforts" to resolve differences. Should the grievance adjustment board prove unable to reach a majority decision, with the help of the Federal Medi- ation and Conciliation Service, Respondent proposed to concede the Union's freedom to strike. On January 29, union representatives accepted Respondent's proposal for a four- member board of adjustment, but proposed that, should the Federal Mediation and Conciliation Service prove unable to persuade the board to reach a majority decision, Federal conciliators should have the authority to suggest a method of grievance set- tlement, which would then be mandatory. Respondent subsequently rejected this proposal. During their February 27 session, however, union spokesmen proposed a grievance procedure clause substantially comparable with Respondent's proposal; specifically, they conceded that the contractually established grievance adjustment board, whenever an impasse developed, should utilize the services of the Federal Mediation and Conciliation Service "to assist them in their efforts" to resolve differ- ences, and that, failing agreement, the Union should be considered free to strike. The Union's proposal, however, called for a further commitment that strikers, under such circumstances, should not be subject to replacement or reprisal, whether by the Union or company management. Respondent, contrariwise, took the position that if plant workers went on strike, they should be subject to conventional penalties. Respondent's last contract proposal reflects its continued adherence to previously proposed contractual language. h. Management rights Respondent's first counterproposal introduced the subject of management rights. Through one provision therein, the Company reserved its rights : ( 1) to plan, and direct, control, increase, decrease, or discontinue operations; (2) to change, remove, install, or order machinery, equipment, appliances, or facilities; (3) to change, add to, or reduce the products or services produced or rendered ; (4) to change production methods or procedures ; ( 5) to assign work in accordance with the needs of the job; WHEELING PACIFIC COMPANY 1203 (6) to adopt and enforce work and safety rules; (6) to demote or promote, discipline, or discharge for just cause, and to add to or reduce working forces or shifts; (7) to manage company properties, remove all or part of the operations to another location, and to subcontract all of any part of its operations; and (8) to close, liquidate, sell, or otherwise dispose of all or any part of its operations, or to discontinue operations for any period it might deem beneficial. The draft clause further called for union recognition that "all rights" previously exercised by or inherent in management, not expressly contracted away, were to be retained by management, and that any com- pany action, pursuant to the provision, could not be considered subject to collective bargaining or the contractual grievance procedure, unless the contract otherwise expressly so provided. The union spokesmen contended that these provisions, considered as a totality, would nullify the collective-bargaining rights of Respondent's workers. Certain por- tions of the proposal, however, were noted as not objectionable; during their second bargaining session, union representatives accepted these portions, but requested Respondent to rewrite other parts of the proposed provision. (When the subject was discussed further, during the parties' February 13 session, union spokesmen took the position, inter alia, that, should current work rules be changed to conflict with a con- tract condition, any such changes should be made subject to negotiation. Respondent agreed.) Respondent's second draft proposal, submitted before the March 20, 1962, negotiating session, contained the firm's previous "management rights" clause, how- ever, supplemented with a commitment that, should the Company change current work rules, such changes "may" be subject to negotiation, under the contractual grievance procedure. Union spokesmen still characterized the provision as too broad. They suggested a compromise, committing themselves to drop their "union shop" proposal, should Respondent drop its "management rights" provision. Martin rejected the suggestion. The Union further protested Respondent's reservation of the right to subcontract work. During the May 8 session, union spokesmen reaffirmed their claimed right to bargain with regard to subcontracting; Respondent's spokesman disagreed. (Pre- viously, Respondent had proffered a third counterproposal; with respect to this draft's "management rights" provision, the firm's negotiators had declared their willingness to make "demotion, discipline or discharge of regular employees" subject to collective bargaining pursuant to the contractual grievance procedure, together with changes in established shop rules. So far as the record shows, these concessions reflect the limit of Respondent's willingness to modify the scope of its "management rights" proposal; management did not concede the Union's right to challenge company deci- sions regarding subcontracts.) On July 16 Respondent submitted a redrafted pro- posal which merely provided, generally, that specifically mentioned management rights which might be held mandatory subjects of collective bargaining, through legis- lation or by appropriate court decision, would be so regarded; they would not, how- ever, be considered subject to the contractual grievance procedure or arbitration. Subsequently, union representatives drafted a contract proposal, presented to Respondent on August 8, which dealt with management rights as follows: All matters except those pertaining to rates of pay, hours and conditions of employment as provided in this agreement shall be considered [the] prerogative of the employer. Management of the plant and the direction of the working forces, including the right to direct, [plan], and control plant operation and to set production schedules; to terminate or discharge employees for justifiable causes and to relieve employees from duty because of lack of work or for other legitimate reasons; and the right to introduce new and improved methods and facilities and the management of the properties is exclusively in the Employer; provided, however, that any action taken under this Section shall not be used for the purpose of discriminating against any employee, or in any manner which will conflict with the express terms of this agreement. Respondent's next counterproposal, however, purportedly presented during the Sep- tember 25 session, reflected continued adherence to its last position, with one modifi- cation. Though previous drafts had declared various management rights subject to collective bargaining but not subject to the proposed contractual grievance procedure or arbitration, this proposal merely called for a commitment that "nothing in these rights as mentioned in Section 13 nor in any part of this agreement" should be sub- ject to arbitration. Though management's "rights" clause, within the draft contract, was completely canvassed, union representatives still recorded their dissatisfaction. Within the settlement agreement which purportedly disposed of the Union's first refusal-to-bargain charge herein, Respondent agreed to accept the Union's "manage- ment rights" provision, set forth within its August 8 proposal. Thereafter, during 1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the January 10, 1963, session, company spokesmen presented a proposal which, with respect to the clause in question, reflected the firm's acceptance of the Union's "management rights" language. i. Bulletin boards The Union's need for bulletin board space within Respondent's plant presented no problem until union spokesmen found it necessary to inform the workers regarding the progress of negotiations, and Respondent's various counterproposals. From time to time, union spokesmen requested a space where notices regarding the negotiations could be posted; finally, they made their demand part of a contract proposal. During the January 10, 1963, bargaining session, the union representatives learned, however, that they would not only be denied plant access without restriction to process workers' grievances, but that they would have to continue to communicate with Respondent's employees outside the plant to keep them informed with respect to the bargaining sessions. During the January 29 session, therefore, the union spokesmen specifically requested bulletin board space; Respondent's representative stated briefly that it would consider the request. When the negotiators met next, however, Respondent refused to allow the Union posting space within the plant, claiming that such space was not required because of the plant's small size. With respect to plant access, Respondent had previously, I find, indicated that every request by union representatives to visit the Woodlake plant would have to be approved by management. No change in this position was suggested. (During this session, Fed- eral Conciliator Duncan, who presided, listed the Union's demand for bulletin board space as one of the six "basic" questions not yet resolved by the negotiators.) Despite this standoff with respect to these plant visit and bulletin board questions, union negotiators do not appear to have pressed for further company proposals with respect to the matter of posting space and plant visits until their June 13, 1963, session. Then, they sought confirmation of the right of union representatives to plant access after notice given to management; Martin promised that proposals would be prepared. During the June 20 session, CEA Representative Martin presented proposals with respect to these matters. Respondent proposed to permit "outside union representa- tives" to visit company premises only with the plant manager's permission sought and received. With respect to bulletin boards, Respondent proposed to make "posting space in an accessible area" available to the Union merely for posting notices of routine union business; Respondent further proposed that "all" notices would have to be approved by management before posting would be permitted. On July 1, 1963, Respondent presented a contract proposal which provided that posting space would be made available for routine union notices, subject to manage- ment's prior approval and clearance; the clause provided further that such posting privileges would be canceled automatically should union representatives use the space for any other purpose. With respect to plant access for the purpose of processing grievances, Respondent proposed to permit it, after "arrangements" with management had been made. The Union rejected both proposals, characterizing them as restric- tive and oppressive. Spokesmen for the organization declared their position that Respondent did not have the right to investigate, clear, and approve "all" notices which union representatives might wish to post, so long as the Union had contractu- ally committed itself to use allotted space only for agreed purposes. Further, these union spokesmen expressed the belief that it would be unduly burdensome to delay posting specific notices while Respondent's clearance was being obtained. With regard to Respondent's plant visit proposal, Sargenti declared that management, as he understood the situation, proposed to restrict union representatives to office visits, with workers being summoned to confer with them there, rather than within the plant. With matters in this posture, the question of the Unoin's right to plant bulletin board space, and the privilege of unrestricted plant access for the purpose of servicing its contract, remained unresolved when the negotiations were terminated. j. Wages The Union's first contract draft contained no proposed wage scale; there was merely a suggestion that the parties negotiate "agreeable" job classifications, together with a pay scale commensurate with "established, prevailing, and competitive" wage rates. (General Counsel suggests, with record support, that union representatives refrained from making any wage proposal because they felt they did not have sufficient infor- mation to formulate wage scales in keeping with the skills required in Respondent's plant.) When the negotiators first met, however, Respondent's representatives declared their desire to pass the subject, and to confine the negotiations to other matters. WHEELING PACIFIC COMPANY 1205 Between the first and second sessions, Respondent prepared its first counterpro- posal. Regarding "classification and rates of pay" management proposed merely that: The Company shall continue to be responsible for classification of jobs and the fixing of wage rates, which in the judgment of the company are necessary to the economic health [and] stability of the Company. The union spokesmen declared, however, that job descriptions and rates of pay would have to be contractually specified. They suggested three possible starting points for wage negotiations : (1) joint study of the Woodlake plant's job operations and classi- fications; (2) current wage patterns of comparable firms within Respondent's labor market; (3) wages and classifications for comparable work at Respondent' s eastern plant. (With respect to the last suggestion, the union spokesmen noted the possible relevancy of wage rates paid at Respondent's West Virginia plant. CEA Representa- tive Martin declared, however, that such information was not available to him. Sub- sequently, union representatives were obliged to procure it; they later presented such data to Respondent's negotiators, demanding equivalent rates for the Woodlake plant.) Negotiations during January and February 1962 produced no concession from Respondent that wages should be specified within a contract. Respondent's second counterproposal once more contained a provision giving the firm ."carte blanche" with respect to job classifications and wage rates, subject merely to a commitment that no regular worker would receive a pay cut as the result of any contract. Union representatives continued to press for specific wage proposals; they also requested information with respect to wages currently being paid. This latter request was subsequently satisfied. (On March 26, Respondent met the Union's request for current wage data with a list of plant workers, showing their job titles and current rates of pay. This submission listed 81 workers-there were 5 leadmen, 61 employ- ees with 28 different occupational titles, and 9 trainees-compensated at 23 different wage rates ranging from $1.25 to $2.70 per hour.) Respondent's counsel notes, with record support, that the negotiators' basic prob- lem derived from the firm's unwillingness to grant any "general increase in wages" forthwith. During their March 20, 1962, session, Respondent's representatives cited the firm's vulnerability to foreign competition, particularly from Japanese producers, together with the impact of such competition on the wages which Respondent could pay; CEA Representative Martin claimed that competitive Japanese products could be delivered at dockside, within the United States, for half of Respondent's produc- tion cost. Union representatives requested documented data which would support this contention . (Respondent's claim appears to have been based primarily upon partial cost and price data, verbally reported to the firm's manager, with respect to pipe nipples and couplings; production of such items, during the period now under consideration, engaged approximately 60 percent of Respondent's work force and accounted for approximately 30 percent of its gross revenue.) During the negotiators' subsequent April 17 session, Martin reported, without documentary support, that Japanese pipe nipples could be purchased by the trade for $4 per hundred; he declared that Respondent's cost of manufacture for com- parable nipples was $6 per hundred and that the firm would have to receive $10 per hundred for nipples to make a profit. (While a witness, Respondent's general man- ager conceded that jobbers' price lists prepared by various importers, which would have supported the firm's claims relative to its competitive disadvantages, were not available for presentation to union representatives during negotiations.) During the June 19 session, Martin further reported that Japanese iron and steel imports within their most closely relevant category, during April 1961, had increased 21 percent over April of the previous year. Protestations by union spokesmen that competitive Japanese products were so clearly inferior as to pose no real threat for domestic manufacturers were countered with a demonstration that foreign and domestic pipe products were superficially not distinguishable. Meanwhile, during their March 30 session, the negotiators had discussed the list of plant workers and their wage rates, previously noted, which Respondent's repre- sentative had finally proffered pursuant to the Union's prior request. Union repre- sentatives sought an explanation for some gross disparities revealed with respect to wage rates then being paid workers with similar job titles. Some discussion followed, with respect to the manner in which management checked each machine's production and set wage rates; further, the negotiators discussed the tasks performed by workers with various job titles. The union spokesmen sought data regarding the duties of various employees. (While a witness, District Representative Sargenti restated the Union's position that proper job descriptions constitute an essential prerequisite for 1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD negotiations with respect to wages, since they provide some rational ground for the determination of wage rates commensurate with job requirements and each worker's responsibility . Lack of proper job descriptions , Sargenti testified , nearly always necessitates the subsequent upgrading or downgrading of particular positions, with relation to fixed wage rates.) Respondent 's next contract proposal, however , drafted April 1, 1962, for subse- quent presentation , though it specified three wage classifications with designated rate ranges, merely designated by name plant workers currently receiving wage rates within each specified classification 's rate range ; management 's negotiators provided no job titles for the listed workers, nor did the proposal describe the tasks considered worthy of compensation within the specified rate ranges . Consistently with prior proposals , Respondent suggested a provision that nothing within the contract should be construed to prevent management from granting meritorious wage increases to workers, or providing further employee benefits whenever, within the firm's judgment, such wage increases and benefits could be justified in light of the Company's com- petitive position. During the negotiators ' April 17 session , which followed , Business Representative Whiteley presented a set of wage proposals based upon presumptively comparable rates paid for similar work in related industries within the nearby Fresno , California, labor market; these proposals called for "single rates" payable to Respondent 's work- ers, classified by job titles and grouped within 12 labor grades , each with its desig- nated rate. Martin promised consideration of these proposals during the next bargaining ses- sion; he refused , however, to commit Respondent to incorporate any consensus reached, with respect to these proposals , within a written contract Within this con- text, rather , Martin provided further data with respect to Respondent 's foreign com- petition, previously noted, within the firm's west coast market. When asked, during the next bargaining session, whether the firm's competitive situation left the firm "unable to pay" wages consistent with the Union 's proposal , Martin replied: The company feels that at this time they are not able to raise wages. The com- pany is not saying that they can't afford it, but at this time they feel that they can't. Martin contended that , while detailed wage data from the firm 's west coast competi- tors was not available, management believed that its current rates were " in line" with those paid by regional competitors, four in number. Respondent's spokesman had previously made it clear that management 's April 1 proposal had merely designated wage rates currently being paid within the Woodlake plant During their subsequent May 22 discussion of Respondent 's proposal , according to District Representative Whiteley, a union spokesman , the firm's negotiator pur- portedly characterized the wage rates which its proposal listed for each designated employee as "minimum" rates. Upon the entire record, however, I am satisfied that Martin described the listed rates as "current" rates , subject to increase within man- agement's discretion. When queried with respect to the criteria upon which raises might be based , I find, Respondent 's representative replied that raises within the con- tractually specified range for any given classification, as well as progression from one classification to another , would be based upon demonstrated ability and merit, within management's discretion, with "principles of seniority" likewise being considered. During this session, further, union representatives, for the first time, so far as the record shows, requested access to the plant for the purpose of helping Respondent's representative procure job descriptions and classifications . Martin , however, voiced categorical objection, declaring: That's the job of management, to run a plant, the union does not know how to run a plant; when the union goes into a plant it always runs up the expense. Martin rejected Whiteley's query regarding the prospect of wage increases and noted that none of Respondent's west coast competitors were unionized. When the parties next met, May 25, 1962, union representatives asked whether the firm maintained its refusal to give them plant access for the purpose of preparing job descriptions and classifications . CEA Representative Martin replied, I find, that Respondent would merely provide data with respect to each worker 's job location and rate of pay , since it believed this to be all the law required . Respondent's spokesman contended that the negotiators, with the assistance of the Union's plant committee- man present , could themselves prepare proper job descriptions for the plant during the negotiating sessions . This suggestion was not accepted . During a discussion which followed, revolving around the matter of skills required to perform various WHEELING PACIFIC COMPANY 1207 tasks within Respondent's plant, Martin claimed that 5 or 10 percent of Respondent's plant workers were not required to possess special skills, and that most of Respond- ent's machines did not even require operators who knew how to read or write. Then, throughout a lengthy discussion of the Union's pending proposal, previously noted, Respondent reaffirmed its rejection of the Union's contention that automatic time- progression schedules should govern transfers or promotions from one job classifi- cation to another or from one labor grade to another, Martin declared that "efficiency and merit" should control such job changes. Before the session terminated, however, Respondent's representative withdrew the firm's April 1 proposal, declaring that he did so to make a new start, with respect to wage classifications and rates of pay. When the negotiators next met, June 11, 1962, Martin agreed, following the dis- cussion, to present a written proposal, summarizing the firm's stated positions with respect to the wage question, which would set forth "job descriptions, classifications, and wages" for Respondent's plant. (Respondent, however, persisted in its refusal to permit any union-sponsored survey within the plant for the purpose of preparing job descriptions.) Sargenti, I find, requested Martin to include a maximum wage proposal, together with a wage progression schedule, and further proposals with respect to criteria which Respondent would rely upon when transferring workers from jobs in one "labor grade" to jobs in another. The next day, Business Representative Whiteley dispatched a letter which purported to verify Martin's "agreement" with respect to the preparation of the promised "set of classifications, job descriptions for each labor grade in each classification, and wage rates for each labor grade in each classification" for delivery and discussion during the parties' next bargaining session. When the parties met on June 19, Respondent presented a document purportedly in compliance with its commitment. It listed five labor grades and specified the job titles and machine operations comprised within each labor grade; further, the docu- ment specified rate ranges with respect to each labor grade. During the discussion which followed the document's presentation, Respondent's representative conceded that some plant workers were currently being paid at wage rates above the maximum rates proposed for work within their proper labor grades; these were designated "red circle" rates. Martin declared that this situation derived from their company senior- ity. When queried with respect to the standards which would thenceforth determine wage increases within each given labor grade's rate range, however, Martin reaf- firmed Respondent's position that such increases should be a management preroga- tive, based upon determinations regarding each worker's efficiency, ability, and seniority. Union representatives thereupon renewed their protest with respect to Respondent's failure to provide job descriptions, for reference in checking the pro- priety of management decisions regarding the proper labor grade placement of par- ticular positions, together with Respondent's failure to propose an automatic wage progression schedule. (Reference has been made previously to Respondent's presen- tation of certain statistics, during a prior negotiation session, with respect to com- petitive couplings. During the June 19 session now being reviewed, these statistics were supplemented. Respondent's five principal domestic competitors were likewise designated; union representatives were told that none of the firms named functioned under union contracts.) Consistently, on June 21, Whiteley renewed the Union's written demand for "descriptions" which would cover the various job classifications listed in Respondent's most recent submission. Martin's reply, dispatched two days later, declared, cate- gorically, that the job "descriptions" within Respondent's previously submitted pro- posal relative to classifications and labor grades was "sufficiently clear" for anyone to understand. The CEA representative further stated that various verbal job descrip- tions, provided during prior negotiation sessions, had covered positions "throughout" Respondent's plant. Finally, he countered with a demand that the union representa- tive produce, for the next scheduled bargaining session, "certified" copies of purported contracts with Respondent's west coast competitors; Martin contended that such contracts necessarily should have provided union spokesmen with sufficient "job descriptions and wage data" to permit intelligent bargaining. Whiteley met this tac- tical riposte by Respondent's representative with a denial that prior negotiations had produced verbal job descriptions for every plant position; reference was made to Martin's prior promise that written job descriptions would be prepared. Respondent's representative was reminded, further, that company negotiators had previously pro- tested the relevancy of purported job descriptions, classifications, and wage rates, derived from the firm's parent company and regional competitors, though union representatives stood ready to submit such data secured from manufacturers of "similar" products. (Martin's request that the union negotiators produce "certified" 1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD copies of their purported contracts with Respondent's west coast competitors pre- sumably persuaded Whiteley to counter further with a request for "notarized" data on nonunion firms with wage schedules comparable to those which respondent com- pany currently maintained.) The union spokesman finally renewed his demand for detailed job descriptions covering the work done at Respondent's Woodlake plant. When the parties next met, June 29, Martin protested that detailed descriptions for each job within Respondent's plant would take much too long to prepare. While conceding that the nature and extent of Respondent's obligation to meet the Union's demand for job descriptions was a matter for discussion and negotiations, Martin declared that Respondent would "stand pat" with respect to its prior submission. During the general discussion which followed, Respondent's spokesman was reminded that the firm's June 11 proposal had maximum rates stated for each labor grade which did not cover certain rates currently being paid. He conceded that some company workers were receiving "red circle" rates which exceeded the firm's contractually proposed maximums for their jobs. Finally, Martin was reminded that Respondent had previously withdrawn certain portions of its complete contract proposal; Whiteley therefore requested the prepa- ration of a new contract proposal, which would reflect the firm's "up-to-date" posi- tion. Such a proposal was promised. Shortly thereafter, Whiteley sent Martin some sample job descriptions from vari- ous union contracts with other firms; the CEA representative was advised that these might guide him in preparing comparably detailed descriptions for the Woodlake plant. When the negotiators met on July 16, Respondent's representative presented a contract proposal which, with respect to classifications and rates of pay, merely repeated the firm's June 19 proposal, coupled with a reaffirmation of Respondent's right to grant individual merit increases or provide further future benefits, within management's discretion. Union representatives, once more, renewed their demand for complete job descriptions, since they did not consider Respondent' s mere listing of specific job titles and machine operations, allocated to designated labor grades, sufficient. With a July 24 letter, Martin purported to provide Whiteley with a set of job descriptions, keyed to Respondent's prior submissions. Substantially, however, Respondent merely specified therein that workers hired for each listed job or machine operation would have to be workers with "proven" or "demonstrated" ability to fill designated positions, or perform specified tasks. Whiteley rejected the submission as "very inadequate" and deficient in detail; he repeated his request for detailed job descriptions. With matters in this posture, union representatives, I find, made no effort to discuss job descriptions, classifications, or wage rates during the July 31 bar- gaining session which followed. When the parties next met-August 8, 1962-union spokesmen presented a com- plete contract proposal. With respect to classifications and rates of pay, the Union's proposals substantially paralleled those previously presented in Respondent's behalf; the draft contract specified five labor grades, identical with those Respondent's repre- sentative had previously proposed, but with rate ranges scaled slightly higher. Within the Union's draft, listed jobs compassed within each labor grade precisely paralleled those set forth in Respondent's last previous proposal. To all intents and purposes, indeed, the Union's proposal differed from Respondent's merely with respect to rate ranges specified for each labor grade, with which union spokesmen had coupled a proposed provision regarding wage progression within grades. In this regard the Union proposed: Change of rate at the rate of 5¢ per hour for each one (1) month of service. In addition the Company can grant merit increases until he reaches the maxi- mum of the rate, but such merit increases shall not replace or interfere with the automatic progression noted above. This suggested provision was rejected, however, by management spokesmen, either during the August 8 or a subsequent session. The Union's proposal did not contain job descriptions, since union representatives had, prior thereto, been denied plant access for the purpose of preparing such descriptions. Negotiations continued until September 1962, without significant further develop- ments regarding these disputed questions. On September 25, Respondent submitted a draft contract which retained its previously proposed provisions regarding labor grades and rate ranges; with respect to job descriptions the proposal merely incorpo- rated Respondent's July 24 submission by letter, previously noted. WHEELING PACIFIC COMPANY 1209 Following the September-December break in negotiations, previously noted, Respondent's December 31 settlement included a commitment to "review job descrip- tions" and permit union representatives to visit the plant for the purpose of observing and evaluating the Company's jobs. When Respondent presented its next contract proposal, however, during the nego- tiators' January 10 session, the provision regarding labor grades and rates of pay showed no significant change; with respect to the positions compassed within each labor grade, Respondent, retrogressively, merely listed job titles or machines to be operated, but made no attempt whatever to provide job descriptions. Generally, Respondent proposed that contractually specified rate ranges should remain in force and effect for the contract's duration; that "all present individual rates of pay" should remain effective for the contract term; and that no employees should suffer wage reductions because of the contract. When the negotiators next convened, for their January 29 session, the union rep- resentatives formally presented a new proposal. With respect to "labor grades and rates of pay" they merely suggested a general across-the-board increase of 15 cents per hour; this proposal, according to Martin's testimony, had previously been pre- sented verbally and rejected. The Union's proposal was coupled with a proposal for a future job-evaluation study, pursuant to which rates would presumably be set for new hires and within-the-plant transfers. Testimony by Business Representative Whiteley, which I credit, suggests that this proposal was advanced since none of Respondent's prior proposals had had wage provisions which assured plant workers any general or selective wage increase whatever. During the discussion which fol- lowed, with respect to Respondent's reluctance to grant general wage increases, CEA Representative Martin declared: We are not pleading poverty and hope we never have to. In view of the com- petition, a man would have to [have] a hole in his head to grant increases ... In the judgment of management, a wage increase is not in the cards. It is the right of management to make a judgment as to whether or not to grant an increase. Faced with Respondent's claims regarding its competition, union representatives requested a "jobber's" pricelist, disclosing the wholesale prices which jobbers had to pay for Respondent's products compared with the prices they had to pay for com- parable items produced by competitors. Respondent's representative, however, stated that management could not procure such a list. During the negotiator's February 27 session, union representatives, once more, challenged Respondent's reluctance to grant concessions with respect to cost items. Martin repeated his declaration that "in the judgment of management" no increases could be given. When the discussion returned to the subject of Respondent's com- petition, the union spokesmen renewed their request for jobber's pricehsts; the firm's management, however, again reported inability to procure such lists. During the same session, the union representatives renewed their request for per- mission to visit Respondent's plant, for the purpose of securing job descriptions precedent to a job-evaluation 'study. Martin this time acknowledged their right to have "two or three" men visit the plant; Sargenti suggested March 7 for such a visit. Despite some apparent confusion with respect to the hour designated for the plant visit on the date noted, Martin finally met the union representatives at approximately 3 p.m. Business Representative Whiteley was accompanied by Grand Lodge Repre- sentative Phillips; they were joined by a member of the Union's plant committee. Respondent's spokesmen, however, declared that no more than one business repre- sentative would be permitted plant access, with a plant committeeman, during work- ing hours. Subsequently, the parties reached agreement that on the following day, March 8, two union representatives plus their plant committeeman would be per- mitted to visit the plant after work had ceased. When the union representatives arrived, at approximately 5:30 p.m., Martin permitted both union representatives, plus John Loucks, member of the Union's plant committee, to enter; this plant visit, with Plant Superintendent Mann present to explain the function of each machine, lasted no more than one-half hour. When their visit was completed, Respondent made a tentative commitment that no more than one union representative, presuma- bly Grand Lodge Representative Phillips, accompanied by a plant committeeman, would be permitted to visit the plant during working hours; sometime after March 11, presumably the next day, Phillips did visit the plant, for the better part of 1 day, under such circumstances. When the parties next met on April 4, union representatives submitted their pro- posed job descriptions for Respondent's plant, prepared by Grand Lodge Represen- 1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tative Phillips as a result of the visits noted. CEA Representative Martin, however, declared categorically that Respondent did not propose to include job descriptions in a contract draft. The firm's next complete submission-prepared, pursuant to the Union's request, for presentation on approximately April 10, 1963-did, in fact, recapitulate its previous, limited proposal with respect to labor grades and rates of pay. Respondent did suggest one minor change; together with its commitment to preserve current individual rates of pay, the firm's management indicated a willing- ness to set forth these rates within the contract document. During May 10 negotiations, Martin reiterated Respondent's determination not to include job descriptions within a contract. During a general discussion of labor grades and rates of pay, which followed, Sargenti queried Respondent's representa- tive, inter alia, regarding the criteria upon which management would rely when "up-grading" workers from one job classification to another; so far as the record shows, he received no reply. When the negotiators reconvened after lunch, the union representatives presented a proposed table of labor grades with designated rate ranges. The proposal fixed a hiring rate for each labor grade, coupled with a wage-progression schedule which provided for raises at 3-month intervals. Pursuant to the proposal, workers within a given labor grade would reach the maximum of their rate range after 1 year's service. Sixteen labor grades, with rate ranges which reflected 10 cents differentials between the successive labor grades, were proposed. Concurrently, union spokesmen proposed to classify Respondent's workers within 14 designated occupations, slotted within 11 of the 16 proposed labor grades. (These 14 jobs were keyed to the job descriptions prepared by Grand Lodge Representative Phillips, which union repre- sentatives had previously submitted. Within that prior submission, the Union had proposed a leadman differential of 20 cents per hour, above the maximum contract rate for the highest job classification normally and regularly led, coupled with a dif- ferential for setup men equaling 10 cents per hour above the maximum rate set for the highest machine operator classification for which setup services were performed.) Respondent's representative promised consideration for the Union's labor grade and wage rate proposals, but reiterated management's determination to exclude proposed job descriptions, contrary to the Union's suggestion, from any contract draft. Shortly thereafter, union representatives presented a complete contract proposal, which incorporated their last previous proposals relative to labor grades, wage rates, and job descriptions by reference. When the parties met on May 27, Respondent presented a counterproposal with respect to labor grades, job descriptions, and rates of pay. Despite Respondent's previous protestations, this proposal did contain brief job descriptions for each of 10 occupational classifications . None of these were slotted in designated labor grades; for the 10 classifications, however, Respondent proposed 6 hourly rates. (For six designated classifications, single rates were proposed. For three classifications, Respondent suggested a double rate structure with the lower rate payable to helpers or less skilled workers. For machine operators, Respondent proposed three wage rates, keyed to differences in skill levels or differences in the machines operated.) During the discussion which followed, Respondent' s representatives reiterated their objection to the inclusion of more detailed job descriptions within a contract. Sar- genti queried Martin, inter alia, as to whether any of Respondent 's workers would receive a wage increase pursuant to Respondent's proposal; the company spokesman replied that "some of them" might, but that he did not know how many. During the negotiators' June 10 session, Respondent's May 27 wage proposal was further discussed. Sargenti noted that union judgments with respect to Respondent's proposal would necessarily have to rest upon a presumption that wage rates which had been previously reported as current, during 1962 negotiations , were still being paid; Martin reported that these rates were still current, as far as he knew. The CEA representative further characterized Respondent's proposed rates as "minimum" rates, which would apply to new hires. (When asked by Sargenti whether workers within a given "labor grade" who were "now" receiving Respondent's proposed rate for their grade would receive a wage increase, Martin replied, "Yes, when the con- tract is signed." Testimony by District Representative Whiteley to this effect, which I credit, may have been mistranscribed, however. Since Martin had previously char- acterized Respondent's proposal as one calculated merely to set minimum rates for newly hired workers, and since Respondent had persistently declared, throughout the negotiations, that wage increases for its current crew would not be warranted, determination would seem to be justified that Martin' s affirmative response , noted, was really calculated to convey that wage increases would only be given workers within a given labor grade who were "not" currently receiving Respondent 's contrac- tually proposed minimum rate. No correction of the transcript with respect to this WHEELING PACIFIC COMPANY 1211 testimony, however, has been proposed.) The negotiators discussed job descriptions; Sargenti characterized Respondent's as too skimpy, while Martin designated the Union's proposed descriptions as too lengthy and detailed. Respondent's represen- tative further stigmatized the Union's previously proposed job descriptions as "Just a lot of hogwash" which management would not want embodied in a contract. The union representatives agreed to modify and condense their job descriptions, and to submit new proposals for the next session. When the parties met on June 13, the union representatives submitted revised job descriptions, which seem to have met with Respondent's approval generally. During the discussion which followed-particularly with reference to the circumstances under which particular workers might receive wage increases, pursuant to transfers from one job "classification" to another-Respondent's representatives conceded that the firm had made wage changes since March 1962, when the Union had been supplied with data relative to Respondent's then current wage schedule. Sargenti then requested a new list of workers with their current wage rates; Martin promised compliance. Queried, once more, with respect to Respondent's position on wage increases, Mar- tin disclaimed any intention to present such a proposal. When asked whether man- agement's refusal to grant wage increases still derived from the pressures of foreign competition, Martin replied that the firm's position rested upon managerial judgment: We have never based it on anything but the judgment of management. We never did say that our competition was the reason we could not give an increase ... We are not pleading poverty. Questioned regarding the basis for management's judgment, Martin declared, I find, that he did not have to "define" the manner in which management's judgment was reached. When the negotiators' June 20 session convened, Respondent submitted a list of workers, classified by job title, with each worker's current rate of pay specified. Respondent's May 27 proposal was then discussed; union representatives, I find, were trying to derive comparisons between Respondent's contract proposals and the wage rates currently being paid workers in various classifications. Such a compara- tive review revealed that Respondent's contractual proposal set forth wage rates for various positions equal to or lower than those currently being paid, in most instances. (Respondent proposed a $1.35 rate for one group of special machine operators, some of whom were currently receiving the firm's $1.25 trainee rate; this proposal, however, seems to have been merely verbal since it does not appear in the firm's last formal contract draft.) Within this context, Respondent reiterated its determination not to grant any general wage increase , based upon "judgment" merely. Further, Respond- ent reiterated its determination to make no contractual provision whatever for wage progression within a given job classification, despite the fact that its current wage schedule showed some employees within the same classification paid at different rates. During the parties' July 1 session, Respondent's representative presented a com- plete contract proposal. Currently, union representatives received a written statement which read as follows: Wheeling Pacific Company wants to make it clear that at no time has the com- pany pleaded poverty or competition as the basis for management's decision not to increase wages. The Company has consistently held and now reaffirms its position: that in the judgment of management, there will be no wage increases other than those which would automatically take place should the proposals of the company be accepted by the Union. When asked to present a written statement as to the basis for management's judgment with respect to the matter of wage increases, Martin replied, I find, that, "If we have a hearing on it, then we will present it in writing." Regarding "labor grades, job descriptions and rates of pay" Respondent's proposal included a set of job descrip- tions substantially identical with those previously submitted by union representatives during the June 13 session. To cover every job category listed, Respondent again proposed six wage rates. Most of the rates suggested matched those in Respondent's last previous proposal; some, however, were higher. Respondent's proposal, inter aka, called for a commitment that: . all wages paid in excess of the rates set forth herein in any labor grade are "red circle" or special rates and that all employees receiving such rates shall receive no reduction in pay during the life of this agreement. 1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Somewhat redundantly, management proposed further that no workers were to have their pay reduced as a result of Respondent's draft contract. Respondent's July 1 proposal was not discussed thoroughly until the July 9 ses- sion . Despite renewed pressure from union representatives, Respondent refused to consider general wage increases; when asked, repetitively, whether management's position was based on foreign competition, Respondent's spokesman declared merely that the firm's position rested upon the fact that management was "trying to look into the future." With matters in this posture, District Representative Whiteley finally demanded, for the first time, that Respondent make available its books for professional audit, so that union representatives might be able to determine what basis there was for the firm's contention that no wage increases could be granted. Martin replied, forthwith, that the Union would have to secure a court order before Respondent's books would be supplied. Despite this rebuff, Whiteley declared that the Union was still willing to discuss new proposals. Martin, however, characterized Respondent's July 1 contract proposal as its last ; management, he stated did not care whether there would be another or not. According to Whiteley's testimony, which I credit in this connection, Martin was told that unless Respondent had something better to offer and was willing to bargain, the negotiators were wasting their time. With matters in this posture, the session was terminated; no further sessions were scheduled. k. Merit increases Before the Union's certification, Respondent's management had, for some time, periodically reviewed the work done by the Woodlake plant's employees, for the purpose of determining their eligibility for merit wage increases. Such reviews and worker evaluations-though characterized by Respondent's counsel as "highly irregu- lar, uncertain, discretionary" in character-had normally been undertaken at 60- or 120-day intervals. According to Respondent's general manager, such merit increases as might then be given were "usually" granted on the basis of the worker's job tenure, and his general attitude judged through visual observation. Within a group of 71 designated plant workers, during the 1960-61 calendar years, Respondent, pursuant to this program, had granted "merit" raises of 5 cents per hour, or more, as follows: 4 workers, hired during 1959 or earlier, received 6 raises; 15 men, 12 of whom had been hired in 1959 and 3 in 1960, received 5 raises; 12 work- ers, 4 of them hired in 1959 and 8 during 1960, received 4 raises; 21 men, 10 of whom had been hired during 1959 or earlier and 11 during 1960 or later, received 3 raises; 5 workers, 3 hired before 1959 and 2 hired in 1961, received 2 raises; 9 men, 1 hired before 1959 and 8 hired during 1960-61, received 1 raise; 5 workers hired during 1961 received no raises before the calendar year's end. Thus, 34 workers with job tenure prior to January 1, 1960, received 1 or more "merit" raises during the 2-year 1960-61 period; 32 out of 37 workers hired within the designated period received 1 or more "merit" raises. While contract negotiations were in progress-during May 1962 specifically- union representatives learned that Respondent had ceased to follow its past practice in this regard; some employees reported that the firm's management had told them the merit increase program had been suspended while contract negotiations were in progress because of fear that the Union would file unfair labor practice charges should the Company's prior practice with respect to such grant be continued. Dur- ing the May 8 session, therefore, CEA Representative Martin, following his confirma- tion of the report that Respondent feared possible unfair labor practice charges, was presented with a union letter disclaiming any union desire "to deny the people we represent" pay raises during the negotiation period. Respondent was assured specifically that the Union had no intention of filing unfair labor practice charges against the firm for giving pay raises to workers during negotiations. Concurrently, Respondent's spokesman was presented with a copy of a letter which the Union had received from its counsel; therein, counsel had declared his view that Respondent's merit increase program, purportedly based upon systematic wage reviews on a regu- lar periodic basis, could not legitimately be considered an unfair labor practice. Not- withstanding these communications, Martin expressed concern regarding the wisdom of continuing Respondent's prior merit increase program, since the Union could "still" file charges. On May 22, Business Representative Whiteley queried the firm's negotiators as to whether Respondent had renewed its merit increase program, in view of the Union's disclaimer regarding the filing of charges. The tenor of Martin's reply was negative; he noted that, despite the Union's disclaimer, charges "could" still be filed. WHEELING PACIFIC COMPANY 1213 During the August 14, 1962, session, therefore, union representatives delivered another letter to Respondent's representative which declared categorically that: The Union has no intentions and will not file charges against the Company for putting into effect merit increases as in the past. We make a demand upon you to tell these people [Respondent's employees] you have a legal right to grant merit increases according to past practices. Respondent's spokesman, however, claiming to be mindful of the fact that, despite the Union's disclaimer, charges could be filed by any disgruntled worker, requested a further letter from the Board's Regional Office stating that it would not "entertain" charges by anyone regarding merit increases. Pursuant to this request, Business Representative Sargenti did solicit a statement on the matter from Regional Office personnel. On September 21 such a letter, over the Regional Director's signature, was dispatched to Sargenti for presentation to Respondent's representative. Therein, Sargenti was advised that: So far as I know, the National Labor Relations Board has not held to be violative of the law continued application and implementation of an established merit increase plan. Thus, while merit increases are a mandatory subject of collec- tive bargaining, there is, in our opinion, nothing unlawful in a company's grant- ing merit increases during negotiations if this is done in accordance with past practices. This communication was submitted to Respondent's representative at the September 25 session. Martin noted that the Regional Director's letter did not state his office "would not entertain" charges; nevertheless, when asked whether Respondent now intended to grant merit increases, Martin replied affirmatively. Consistently, he recommended to company management that they proceed with their merit increase program. Further, I find, Martin wrote Whiteley on September 28, reaffirming Respondent's readiness to grant merit increases while negotiations continued. The union representative was requested to notify Respondent by return mail if it approved the Company's proposed action; on October 3, Whiteley replied that Respondent had known about the Union's approval of merit increases for some time. Despite these exchanges , so far as the record shows , Respondent 's management never did resume its previous periodic merit increase program. This, despite Respond- ent's persistent proposal, within draft contracts presented for discussion up to and including its September 25 draft, that nothing therein should be construed to prevent management from granting "individual merit increases" or providing further future benefits during the contract's term, should it conclude that such wage increases and increased benefits had become justified in light of the firm's competitive position. With matters in this posture, the Union's second refusal-to-bargain charge (Case No. 20-CA-2435) dated October 5, 1963, was filed. (While a witness, Martin testified, with General Manager Powell's corroboration, that "probably 45 or 50" raises directed pursuant to the firm's revised "merit increase" program, with a September 1 retro- active date, were then being readied for completion, for addition to the paychecks of the prospective recipients on their forthcoming October 15 payday. When Respond- ent received notice, on October 8, with respect to the various newly filed charges, however-so Martin testified-all preparatory payroll computation work calcu- lated to implement a revival of the firm's "merit increase" program ceased. While a witness, Powell conceded that these preparations with respect to proposed raises were suspended because of the pendency of the charges. I so find. Nothing in Martin's notes or recollection, however, could warrant a finding that union repre- sentatives were told of Respondent's reluctance to proceed.) Within the December 31 settlement previously notedt which purported to close the designated case, Respondent agreed, inter alia, that it would: "3. Eliminate employ- er's `merit increase' proposal." Nothing set forth within the balance of the settlement, however, purported to clarify the precise scope of this firm commitment. Presum- ably, Respondent took its settlement promise to mean, among other things, that no provision whatever for future merit increases should be contained within a contract. Management's next proposal, therefore, presented at the negotiator's January 10, 1963, session, contained a provision setting up five labor grades with a designated rate range for each grade, but with no provision of any kind for wage progression within such rate ranges. Together with a proposal that "all present individual rates of pay" should remain in effect throughout their contract's term, Respondent proposed a mutual commitment that: . the company shall abandon the practice of merit increases and that there shall be no such increases during the term of this agreement. 1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When the negotiators met February 27, Business Representative Sargenti queried Respondent's spokesmen, however, with respect to their position regarding current merit increase grants. Martin replied, I find, that "in the judgment of management" no such increases would be given. Respondent's position with respect to future merit increases, during the contract term, was reaffirmed within its March 8 proposal. By a letter dated April 6, respond- ing to certain union positions previously stated, Respondent's spokesman further advised union representatives, inter alia, that, with respect to wage proposals: Our position is clear. Merit increases are out according to our agreement with the National Labor Relations Board. We have no choice in the matter. We have kept our agreement with the National Labor Relations Board to the letter and we propose to do so in the future. The firm's April 10 contract proposal again contained a provision forswearing "merit increases" for the duration of the contract's term. Within a letter directed to CEA Representative Martin dated April 22, drafted with particular reference to Respond- ent's April 10 proposals, Whiteley protested Respondent's patent reliance upon the Board settlement stipulation, previously noted, to justify the withdrawal of wage progression proposals. Whiteley noted the Union's "understanding" that the settle- ment stipulation had been negotiated to require merely that Respondent refrain from any contract proposal specifying merit increases as the "only" means whereby work- ers might receive raises during a prospective contract's term. (Necessarily, this statement of the Union's view conveyed, through implication, Whiteley's further con- tention that Respondent's settlement could not be construed legitimately to prevent management's prompt resumption of its prior "merit increase" practice, pending the achievement of a contractual consensus; by way of conclusion, Whiteley demanded, within his letter, that Respondent notify its workers the Union was-not keeping them from receiving current wage increases.) When the parties next met on May 10, however, Martin reaffirmed Respondent's position, presumably declared previously, that no current merit increases could be given during the negotiations because of the danger that the firm might be confronted with unfair labor charges; this, despite Sargenti's protestation that all questions regarding Respondent's possible liability had already been cleared with Board representatives. So far as the record shows, Respondent's continued failure to comply with its prior written commitment of September 28, 1962, relative to prompt renewal of its previous practice regarding merit increase grants, was never subsequently reviewed by the negotiators; despite the commitment noted, Respondent has never resumed its prior practice. 1. Refusal to provide financial data Previously, within this Decision, reference has been made to the parties' last negotiation session, held July 9, 1963; during that session, confronted with Respond- ent's definitive refusal to grant any general wage increase, Whiteley had demanded verbally that Respondent make its books available for professional audit, so that union representatives might be able to determine what basis there was for the firm's contention that no wage increases could be granted. Respondent's refusal to comply with this verbal request has been noted. On July 11, 1963, therefore-within his letter, previously cited, which reaffirmed the Union's willingness "to meet at any reasonable time to negotiate" further regarding a contract-Whiteley renewed the Union's demand that Respondent make its books available for audit by some "Bonded Certified Public Account"; this demand was further renewed in Whiteley's July 23 communication. Martin's reply, however-dispatched on July 23 likewise-pro- claimed Respondent's view that negotiations had been concluded by mutual agree- ment during the July 9 session, pursuant to a consensus that further negotiations would be "fruitless, futile and a waste of time" since a genuine impasse had been reached. For this and other reasons, the Union's request for "further information and meetings" was denied. Whiteley's reply, dispatched on July 26 I find, chal- lenged the correctness of Martin's view with respect to the significance of the July 9 session and renewed his prior demand that Respondent make its books available for audit. On October 1, 1963, subsequent to issuance of the General Counsel's con- solidated complaint herein, Business Representative Sargenti presented Respondent with a detailed written demand for financial data. Specifically, Sargenti requested the following information relative to Respondent's Woodlake, California, plant: 1. Profit and loss statement for the last (3) three years. 2. Volume of production of the last (3) three fiscal years. 3. Price changes put into effect in the last (3) three fiscal years. 4. Volume of sales in the last (3) three fiscal years. WHEELING PACIFIC COMPANY 1215 Respondent was requested to provide these figures as approved by a bonded certified public accountant . So far as the record shows , however, Sargenti 's request has, thus far, been neither answered nor acknowledged. C. Conclusions 1. General principles The duty to bargain collectively , detailed in Section 8(d) of the statute , requires that parties privy to collective -bargaining negotiations "meet at reasonable times and confer in good faith with respect to wages, hours , and other terms or conditions of employment" with a view to the final negotiation and execution of agreements. Though such statutory bargaining obligations do not "compel either party to agree to a proposal or require the making of a concession ," the law clearly contemplates something more than "mere surface" negotiations . N.L.R.B. v. Whittier Mills Company , 111 F. 2d 474 , 478 (C.A. 5 ). To state the matter differently , firm adher- ence to declared bargaining positions will not necessarily merit proscription as a refusal to bargain in good faith ; yet, on the other hand , Section 8 ( a)(5) of the statute, qualified by Section 8(d) previously noted, will not sanction some company respondent "giving the union a runaround" while its representatives purport to meet with union spokesmen for the purpose of negotiating a collective bargain. N .L.R.B. v. Athens Manufacturing Company, 161 F. 2d 8 (C.A. 5). Good-faith collective bargaining , in short, calls for more than some "purely formal" conferences between management and labor representatives , during which each set of negotiators main- tains previously formulated "take it or leave it" positions ; rather, such bargaining contemplates a willingness to conduct negotiations "with an open mind and purpose to reach an agreement consistent with the respective rights of the parties " which the negotiators can then formalize within a collective -bargaining contract . N.L.R.B. v. Insurance Agents' International Union, AFL -CIO (Prudential Insurance Co.), 361 U.S. 477, 485; N.L.R .B. v. American National Insurance Co., 343 U.S. 395, 403- 404; N.L.R .B. v. Herman Sausage Company , Inc., 275 F. 2d 229, 231 -232 (C.A. 5); N.L.R.B . v. Darlington Veneer Company , Inc., 236 F. 2d 85, 89 (C.A. 4); L. L. Majure Transport Company v . N.L.R.B., 198 F 2d 735, 739 ( C.A. 5). Sterile dis- cussions with respect to union and management differences will not satisfy the statute. Whether negotiations terminating in stalemate have been really conducted with "good faith" can only be determined , therefore , through the consideration of various "subtle and elusive factors" which, when viewed within their context , would justify a conclusion whether or not negotiators for the parties had entered into discussions with a fair mind and sincere purpose to find some basis for agreement . Many such relevant factors will, necessarily , involve largely subjective considerations , susceptible of proper evaluation only when the facts of the particular case have been fully con- sidered. And dividing lines between permissible "hard bargaining" and statutorily proscribed "bad faith bargaining " will, therefore , frequently be difficult to determine. Basically, questions presented with respect to a negotiator 's "good faith" will require, for their resolution , determinations with respect to his motive or state of mind which must normally rest largely upon circumstantial evidence. See N.L .R.B. v. Reed & Prince Manufacturing Company, 205 F. 2d 131, 139-140 (C.A. 1) in this connection. Whether statutory "good faith" standards have been met will be particularly diffi- cult to determine , further, whenever the record reveals no forthright refusal by com- pany spokesmen to treat with union representatives . Thus, within the decision last cited, the Court of Appeals for the First Circuit noted that: ... this is not a simple case where the employer has made a clear refusal to recognize or bargain with the certified representative of its employees . Rather, it is one where the employer engaged in a lengthy series of bargaining confer- ences, which got nowhere . In such a case the question is whether it is to be inferred from the totality of the employer 's conduct that he went through the motions of negotiation as an elaborate pretense with no sincere desire to reach an agreement if possible , or that [he] bargained in good faith but was unable to arrive at an acceptable agreement with the union. [Emphasis supplied.] When a negotiator's "total course of conduct " must be reviewed , Section 8(d)'s caveat that the obligation to bargain "does not compel either party to agree to a proposal or require the making of a concession" will not, taken at face value , facili- tate a conclusion , free from doubt, whenever parties have failed to reach agreement. Relevant circumstances , considered in context , may show a negotiator 's honest desire to reach such agreement ; then , certainly, mere failure to concur with respect to a proposal , or to make a concession thereon, may not be taken as tending to prove bad faith. 1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Whether or not such an honest purpose to reach agreement does in fact exist, how- ever, may well be inferred from the negotiator 's general or particularized response to proposals . Lack of willingness to compromise may be, sometimes , revelatory of a purpose not to reach agreement ; stating the matter more strongly , predeterminations not to yield , without giving reasons or listening to opposing reasons, may be considered revelatory of a disposition not to bargain . See Roy E. Hanson, Jr., Mfg., 137 NLRB 251, 265, and cases therein cited. Nevertheless , concessions , when proffered , do not necessarily show good faith. N.L.R.B . v. Herman Sausage Company, Inc., supra . As the Court of Appeals for the Fifth Circuit therein stated: ... while the employer is assured these valuable rights, he may not use them as a cloak. . . . [B ]ad faith is prohibited though done with sophistication and finesse. Consequently , to sit at a bargaining table, or to sit almost forever, or to make concessions here and there, could be the very means by which to conceal a purposeful strategy to make bargaining futile or fail. Hence , we have said in more colorful language it takes more than mere "surface bargaining," or "shadow boxing to a draw," or "giving the Union a runaround while purporting to be meeting with the Union for [the ] purpose of collective bargaining." [Emphasis supplied.] With due recognition , therefore , that reliable short cuts can be found , when triers of fact must determine whether an employer has bargained with good faith pursuant to the statute 's command , the negotiations with which this case is concerned have been set forth in considerable detail . Some consideration has been given, further, to Respondent's relevant conduct away from the bargaining table, since conduct col- lateral to the bargaining process can conceivably reflect a rejection of collective-bar- gaining principles , or the presence of some underlying purpose to bypass or undermine the Union ; thereby, Respondent's lack of genuine desire to compose differ- ences may be rendered manifest . "M" System, Inc., Mobile Home Division, Mid- States Corporation , 129 NLRB 527, 547. And, in this connection , the behavior of Respondent's negotiators , together with firm management 's related conduct, must again be considered as a whole. N .L.R.B. v. Insurance Agents' International Union, supra. As Mr. Justice Frankfurter therein noted , within his separate concurrence: . the significance of conduct , itself apparently innocent and evidently insuffi- cient to sustain a finding of an unfair labor practice , "may be altered by impon- derable subtleties at work ...." Activities in isolation may be wholly innocent, lawful and "protected" by the Act, but that ought not to bar the Board from finding, if the record justifies it , that the isolated parts "are bound together as the parts of a single plan [to frustrate agreement]. The plans may make the parts unlawful." [Citing cases.] With these considerations in mind, we may review the negotiations with which this case is concerned , within their relevant context . To that task , therefore , this Decision must now turn. 2. Significance of the settlement agreement General Counsel contends that Respondent 's refusal to bargain "meaningfully" began on April 8, 1962; so far as can be determined , however, this date merely marked the commencement of the 6-month period which preceded service of the Union's first charge in this consolidated matter. Respondent contends that the Board- sponsored December 31 settlement , previously noted , was negotiated and signed to dispose of the designated case; since Respondent 's modified position during subsequent negotiations , so the contention runs, reflects "compliance . . in all respects" with its settlement commitments , counsel for the firm has suggested that , with respect to the first of the present cases at least , the consolidated complaint should be dismissed. (Such a dismissal would, pursuant to Section 10(b) of the statute , limit General Counsel to proof that Respondent 's negotiators had bargained in bad faith after October 22 , 1962, the date 6 months prior to service of the Union's second charge.) With matters in this posture , some determination must be made, pursuant to settled doctrine , regarding the scope of Respondent's compliance with respect to the Regional Office's December 31 settlement. Should a conclusion be found warranted that the firm's compliance with that settlement was substantially complete, counsel 's deriva- tive contention that Case No. 20 -CA-2435 herein should be dismissed would probably merit Board concurrence. Detailed study of the record , however, has convinced me that Respondent's con- tention, with respect to this portion of the consolidated case , should be rejected. WHEELING PACIFIC COMPANY 1217 True, testimony proffered without contradiction , which has been supplemented by documentary material , will warrant a determination that firm management's com- pliance, with respect to six of seven matters covered by the settlement , was substan- tially complete before negotiations terminated . (Within the document in question, Respondent did more than restate its readiness to bargain "meaningfully" with union representatives . Commitments were made that the firm 's negotiators would modify their substantive contract proposals with respect to six designated matters; these commitments were coupled with a declaration of Respondent 's readiness to review "job descriptions " which had been proposed for negotiation , when presented, and to permit union representatives to visit the plant for the purpose of making a job study from which such descriptions could be derived . With respect to four among the six substantive matters noted , Respondent did, promptly , present revised contract pro- posals which reflected compliance with settlement commitments . These revised proposals dealt with such matters as management rights, grievance procedure, sick leave, and seniority . Respondent 's readiness to satisfy its December 31 settlement promise regarding the projected contract 's date was not made manifest ; however, before the firm's final contract proposal-dated July 1, 1963 , specifically-was pre- sented. Further, Respondent 's readiness to "review" positions which its prime nego- tiator had previously taken , relative to plant job descriptions , and to permit union representatives plant access for job study purposes , lacked concrete manifestation prior to March 12, 1963 , when union representatives , qualified to survey the firm's Woodlake plant and prepare job descriptions , were first permitted to visit the plant during working hours. For various reasons, however , no determination has been made herein that Respondent 's delay in complying with the Board 's December 31 settlement , regarding these two matters particularly , reflected a failure of compliance sufficient to justify a conclusion that the settlement in question should be disregarded.) Regarding one substantive matter with which the settlement dealt , however, such a conclusion would not be warranted . Reference is made, specifically , to Respondent's reaction when confronted with its negotiator 's December 31 commitment to eliminate the firm's pending "merit increase" proposal. Respondent 's reaction with respect to this commitment was double-barreled. Spe- cifically, firm management cited the settlement , I find , to confirm and justify Respond- ent's decision, previously reached , that no merit increases would be granted plant workers while negotiations were in progress . Secondly, Respondent 's negotiators claimed that the settlement , properly construed, sanctioned a contract proposal bar- ring merit increases completely , during the prospective contract 's term. Within this Decision , reference has previously been made to Respondent's deter- mination , while negotiations were in progress , regarding the suspension of its regular practice relative to sporadic , ad hoc, wage reviews, which would be followed by merit increase grants, varied in amount , for selected workers. This determination, which firm management concededly reached unilaterally , was subsequently reaffirmed, fol- lowing considerable discussion with union representatives , purportedly because of Respondent 's fear that continuation of its prior practice would subject it to unfair labor practice charges. Despite several union commitments , with one dated Au- gust 13, 1962 , specifically , that it would not file charges against the firm for granting merit increases to particular workers consistent with past practice , Respondent main- tained its position . Only when the Board 's Regional Director, within his September 21 letter which a union spokesman had solicited , declared that merit increases during negotiations constituted "nothing unlawful" when granted in accordance with past practice , did Respondent finally consent to resume its previous "informal ... haphaz- ard" merit increase program . Preliminary steps, calculated to satisfy Respondent's consensual commitment , were thereafter taken ; they were suspended , however, when the Union 's October 5 charge was filed. Subsequently, when union representatives, during their February 27 , 1963, bargaining session, questioned Respondent 's failure to grant these promised merit increases while negotiations were in progress, Martin first reported that the firm 's decision to withhold such current grants rested upon managerial judgment . Later, however, he declared Respondent 's position to be that merit increase grants could not be made during negotiations , consistently with the December 31 settlement. With respect to Respondent 's postsettlement contract proposals , reference has previously been made , likewise, to the firm 's prompt suggestion that the Union sanc- tion its cessation of prior merit increase practice, together with a commitment that "there shall be no such increases" during the contract. While a witness, Martin testified that these proposals were made because he construed Respondent's settle- ment commitment to proscribe contract clauses which had "anything to do" with 783-133-66-vol. 151-78 1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD merit increases. Specifically, Respondent's negotiator reaffirmed his belief that the settlement called for some "absolute prohibition" with respect to company contract proposals relative to merit increase grants. Neither of these positions, however, can reasonably be considered well taken. When the relevant settlement language can be dispassionately reviewed, with due regard for whatever circumstances led to its formulation, Respondent's professed views with respect to the requirements of its commitment, rather, can only be con- sidered a palpably "cute" misconstruction, calculated to subvert the settlement's basic purposes. When the document was signed, Respondent's representatives must have known- being reasonable men-that union spokesmen did not really desire commitments pursuant to which the firm would have to forswear resumption of the very merit increase program which they (the union negotiators) had previously requested. Respondent's professed deduction that the Union had really reversed its position with respect to the firm's proposed grants seems, under the circumstances, so outre, that no trier of fact could reasonably conclude Respondent came to such a conclusion through good faith ratiocination. Further, nothing in the record suggests that Respondent's spokesmen sought clarification from the Board's Regional Director, with respect to the settlement's possible proscription of merit increase grants during negotiations; without something concretely revelatory of the Regional Director's view, Respondent's spokesmen can hardly claim, legitimately, that, when he approved the settlement in question, he construed it to proscribe the very course of conduct which he had previously designated "nothing unlawful" when done pursuant to past practice. Finally, challenged language within the settlement, taken at face value, can hardly be reasonably stretched to compass a prohibition with respect to the merit increase program which Respondent had previously commenced, but suspended. Following prolonged discussion, Martin had reported, within his September 28 letter, management's preparations to effectuate certain merit increase grants; union approval of the firm's "proposed action" was solicited. When such approval was received by letter, Respondent became privy to something more than a mere proposal: through correspondence, respondent and union negotiators had reached a consensual arrange- ment or understanding, pursuant to which firm management was committed to pro- ceed. Matters had gone beyond the stage of some simple "proposal" which the settle- ment committed Respondent to withdraw. With matters in this posture, Martin's postsettlement contention that Respondent was committed to withhold current merit Increase grants, which it had previously been prepared to make, smacks of stultifica- tion. Such a declaration can only be considered calculated to undercut the Union's representative status, since it could reasonably persuade Respondent's plant workers that union negotiators had been careless, or callously disregardful of their welfare. Conduct so clearly revelatory of Respondent's desire to disparage the union spokes- men, stall negotiations, and frustrate the consummation of consensual commitments previously reached, clearly constitutes a refusal to bargain within the meaning of the statute. I so find. With respect to Respondent's commitment to withdraw its previous "merit increase" contract proposals, likewise, postsettlement positions taken by the firm reflect some deliberate misconstructions. Throughout the negotiations now under consideration, before the settlement, Respondent's spokesmen had maintained their position that wage increases based upon merit, determinable by management within its sole dis- cretion, should constitute the sole means whereby plant workers would receive raises during their prospective contract's term. Contrariwise, negotiators for the Union had pressed, without success, for wage clauses which would provide periodic "step" raises within prescribed rate ranges. Both parties thus had sought contractual wage clauses which would include some provision for raises within the contract's term; they differed merely with respect to whether such raises should be granted automatically, with accrual based upon the passage of time, or be subject to managerial discretion. With matters in this posture, when negotiations were suspended, Respondent's con- tention that its subsequent contract proposals complied with its settlement commit- ment can only be found to reflect a perverted construction thereof, clearly violative of the document's spirit and purpose. Management's determination to satisfy its settlement commitment in ways faithful "to the letter" was subsequently clearly stated; throughout the postsettlement negotiations, Martin continued to insist that merit increases were "out" pursuant to the firm's agreement with Board representa- tives-this despite the union negotiators' declared understanding that the particular settlement stipulation now in question had been framed- . because you previously had included this method [merit increase grants] as the only means for a person to receive an increase in wages. [Emphasis supplied.] WHEELING PACIFIC COMPANY 1219 Within its context, further Respondent's first postsettlement contract proposal, though purportedly drafted to comply with the firm's December 31 commitment, makes no sense. Respondent had proposed job classifications within five labor grades with matched rate ranges; despite this, management's spokesmen presented a further proposal that "all present individual rates of pay" should remain fixed for the duration of the contract's term. Such a proposal would necessarily render meaningless Respondent's concurrent proposal with respect to labor grades and rate ranges. (This conclusion would seem to be warranted, particularly since the record shows that quite a few plant workers were then receiving "red circle" rates beyond the maximum rates proposed by Respondent for the specific labor grades within which their par- ticular jobs would fall). Thus, to state the matter differently, Respondent's slavishly literal compliance relative to the settlement caused it to compound something less than a rational wage proposal. General Counsel suggests that, with respect to this portion of the firm's settlement commitment, company negotiators took a retrogressive "dog in the manger" role; this figure of speech, substantially, would seem to have merit. Respondent's spokes- man really took the position that since they would have to relinquish their prior proposal to make discretionary merit increase grants the sole means for contractually recognized wage progression, no provision whatever should be made for wage pro- gression , whether within or beyond contractually specified rate ranges. With due regard for prior bargaining history, however, Respondent can hardly contend legiti- mately that the stipulation now under consideration required its negotiators to settle their "merit increase" problem through such Procrustean methods. Cf. California Girl, Inc., 129 NLRB 209, 219. Like Respondent's prior decision to cancel a projected resumption of current merit increase grants, Respondent's conduct was reasonably calculated to persuade the firm's Woodlake workers that union spokesmen , through the settlement, would deprive them of their chance for future raises. Such conduct can only be characterized realistically as conduct calculated to undermine the Union's representative status. Considered in context, therefore, management's behavior with respect to this matter must be construed a refusal to bargain. Since Respondent's course of conduct then, with respect to the particular settlement commitment now in question, clearly reflects management 's double-barreled failure of compliance, counsel's contention that the first of the present consolidated cases should be dismissed must be rejected. And, with matters in this posture, General Counsel's charges relative to Respondent's purported bad-faith negotiations , subse- quent to April 8, 1962, specifically, may be, and must now be, considered. 3. The totality of Respondent's conduct Considered as a whole, Respondent's course of conduct during negotiations, sub- sequent to the designated Section 10(b) date, can hardly be considered reflective of good faith, consistent with this Board's view relative to the requirements of that statu- tory standard. Suffused throughout these protracted negotiations, numerous signs can be found of Respondent's desire to pursue "empty talk" within a context "more -calculated to discombobulate than to compose" differences. See Justice Frankfurter, Textile Workers Union of America, AFL-CIO v. Lincoln Mills of Alabama, 353 U S. 448, 464, dissenting in another context. Such conduct persuasively suggests that Respondent lacked the "state of mind" which the statute requires. Without detailed specification, which, at this stage, would be surplusage, Respondent's failure to dis- charge its statutory obligation may be deducted from its course of conduct, noted. Regarding "contract term" questions, Respondent's spokesmen, within the relevant period, retreated from a consensual commitment that their contract's effective date would -be the date when the parties reached complete agreement. Substantially, Martin proffered two limited proposals, with the second more restrictive than the first. No rationale which could logically support either proposal was provided; nor was any quid pro quo suggested. Despite Martin's December 31 settlement commit- ment, credible testimony reveals that he had to be subsequently "persuaded" regard- ing his legal right to negotiate a contract with a prospective effective date. Never- theless, without regard for a Federal conciliator' s reassurance that Respondent could make such a contractual commitment, Martin proffered no written proposal consistent with his settlement stipulation prior to the presentation of Respondent's final July 1, 1963; draft contract. Proposals which would limit a contract's term to some labor union party's certification year, particularly when they would fix the contract for less than 12 months, may, when considered in context, manifest "bad faith" negotia- tions. Solo Clip Company, 142 NLRB 1290, 1291; Southern Coach & Body Com- pany, Inc., 141 NLRB 80, 82. See, likewise, Ray Brooks v. N.L.R.B., 348 U.S. 96, 1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in this connection. Thus, respondent firm's "contract term" proposals, when weighed within their context, clearly reveal a desire to prolong discussions with respect to the matter, and thereby hopefully to stall negotiations. Martin's eleventh hour compliance with Respondent's settlement commitment cannot, realistically, create any reasonable doubt regarding his prior purpose to promote a bargaining breakdown through: (1) withdrawal of the firm's first commitment to base a prospective con- tract's term upon the date when its terms have been ratified; (2) presentation of progressively more restricted proposals; and (3) final presentation of a belated pro- posal, little more than I month before the certification year's termination, with which no self-respecting union could concur. N.L.R.B. v. Henry Heide, Inc., 219 F. 2d 46 (C.A. 2). Though the course of negotiations with respect to their projected contract' s "union security" provision might, under some circumstances, reveal nothing more than some true impasse between the parties, there can be no doubt that such a result must have been foreseen by Respondent's negotiators, who declared their fixed determination to reject "union security" proposals when discussions began. Conventionally, good- faith collective bargaining calls for willingness to approach the bargaining table with an open mind, willingness to consider proposals made by the other side , and willing- ness to exchange proposals on some give-and-take basis. See California Girl, Inc., 129 NLRB 209, 218-219, citing N.L.R.B. v. American National Insurance Co., 343 U.S. 395, for the proposition that the duty to bargain requires more than "sterile discussion" with respect to union-management differences. Whatever conclusion may be warranted, then, with respect to the propriety of Respondent' s posture regard- ing "union security" questions, standing alone, that posture, considered in context, reflects something beyond a legitimate difference fairly maintained ; determination would seem warranted, rather, that Respondent's preconceived decision to reject contractual union-security provisions, regardless of form, formed part of a calculated program to persuade union negotiators, finally, that further bargaining would be futile. Negotiations, throughout the period with which we are concerned, with respect to hours of work, overtime, holidays, and vacation privileges seem to have followed normal patterns; though consensual understandings were never reached, with respect to several of these matters, discussion seems to have been openminded and free. Regarding the matter of vacations, however, negotiations developed a snag which, retrospectively, merits treatment as revelatory of the spirit which was moving Respondent's spokesmen. Though a discussion with respect to vacation privileges had been broached by February 13, 1962, Respondent raised no question with respect to the number of hours employees would have to work to qualify for vacations before the January 29, 1963, session. When qualified, experienced negotiators raise serious questions, clearly germane to particular contractual proposals, for the first time more than 1 year after bargaining had begun, their bona fides may legitimately be questioned. The negotiations with respect to sick leave, despite General Counsel's contrary contention, reveal little in themselves, within the relevant period, regarding Respond- ent's lack of good faith. During the sessions before April 8, 1962, Respondent did reveal a reluctance to offer contractual "sick leave" benefits equivalent to those which Woodlake plant workers had enjoyed prior to union certification. Further, Respond- ent's spokesmen did withdraw a fairly favorable proposal, on this subject, for one more restrictive with regard to sick leave accumulation limits. Respondent's July 16, 1962, contract proposal, however, did raise its proposed limit from 10 to 15 days. And the subsequent Board-sponsored settlement reflects a consensus that the firm's "agreement" to maintain this proposal would satisfy its statutory "good faith bargain- ing" obligation. True, Respondent's course of conduct prior to the settlement could hardly be considered conciliatory. Nevertheless, Martin's most retrogressive "sick leave" proposal during the period in question was modified shortly after its presenta- tion, and that modification was endorsed, subsequently, as satisfactory. Upon this record, Respondent's conduct during negotiations, with respect to "sick leave" spe- cifically, could hardly be considered probative of General Counsel's overall contention. With respect to seniority, respondent and union spokesmen seem , superficially at least, to have conducted a conventional collective-bargaining dialogue. A detailed review of the negotiations, however, reveals a series of shifts in Respondent' s position reasonably calculated to "keep the pot boiling" and thus prevent the realization of any mutually satisfactory consensus . (Within this decision, reference has been made to Respondent's firm refusal to recognize seniority as a factor in wage progression. Further, when Sargenti, during one session, raised a question about Respondent's willingness to recognize seniority as a factor in transfers and promotions, Respond- WHEELING PACIFIC COMPANY 1221 ent's spokesman promised consideration of the question, but, so far as the record shows, never proffered a reply. With respect to both matters, Respondent revealed its determination to minimize seniority's significance in personnel management.) Throughout the parties' presettlement negotiations, Respondent's persistent con- tention that "ability, competency and merit" should be considered the prime factors for management's judgment with respect to promotion, demotion, layoff, and rehire, was capped with a further demand that firm representatives be conceded the right to exercise "sole" or "final" judgment regarding these factors. Such proposals clearly were calculated to bar Woodlake workers-grieved by management decisions with respect to promotion, demotion, layoff and recall-from their right to seek redress through contractual grievance machinery. Realistically, therefore, Respond- ent's position reveals its rejection of the collective-bargaining principle, so far as seniority rights, within the areas of personnel management noted, are concerned. Such rights have long been recognized as conditions of employment, subject to nego- tiation as mandatory bargaining subjects. Bethlehem Steel Company (Shipbuilding Division) v. N.L.R.B., 320 F. 2d 615, 53 LRRM 2878, 2882 (C.A. 3); N.L.R.B. v. The Proof Company, 242 F. 2d 560 (C.A. 7). Respondent's proposal, however, would have permitted company management to treat the seniority factor as nugatory with respect to questions of promotion, demotion, layoff, and recall, while it deprived plant workers of their right to protest, through the contractual grievance procedure, Respondent's "ability, competency and merit" judgments. Within their total context, these proposals, management spokesmen reasonably must have known, could not have been seriously considered by the union negotiators without endangering their organization's representative status; triers of fact can only conclude that the proposals were pressed by Respondent's spokesmen with the hope and belief that, thereby, dis- cussion could be prolonged and lead to stalemate. Significantly, when Respondent's negotiators, following the settlement, did drop their "sole judge" proposal, nothing specific was suggested with respect to plant workers' rights to grieve about manage- ment decisions on promotions, demotions, layoffs, or recall; questions regarding the possible relevance of the contractual grievance procedure with respect to such mat- ters were, seemingly, left for subsequent solution through negotiation. Finally, note should be taken of Respondent's postsettlement determination to recognize seniority rights merely for "regular" employees; having withdrawn one proposal which had demonstrably "discombobulated" union negotiators, management proffered a different suggestion reasonably calculated to generate friction. (Respondent's first draft con- tract had defined "regular" workers; company spokesmen, however, had proffered no proposal making regular employment status a prerequisite for seniority rights prior to their seventh contract draft, slightly less than 1 year later. With matters in this posture, Martin's protestation that the firm's new, belated, proposal derived from sound business considerations would seem to have a slightly hollow ring.) Before their December 31 settlement stipulation, respondent and union spokesmen had reached a consensus with respect to breaks in seniority through both leaves of absence or layoff; their respective proposals had revealed their concurrence that leaves of absence or layoffs for more than 90 days should be construed to break seniority. (These questions presumably were considered noncontroversial; specific language designating layoffs as one possible cause for seniority breaks did not even appear, thereafter, within Respondent's first two postsettlement proposals.) However, when the Union's third proposal, dated January 29, 1963, specifically, suggested for reasons not made clear within the record, that seniority should be broken, inter alia, by leaves of absence which exceeded 30 days, Respondent's nego- tiators promptly concurred, since the right to treat seniority as broken within a shorter period would clearly be to Respondent's benefit. Concurrently, Respondent's spokes- men proffered "out of the blue" their parallel proposal that layoffs for more than 30 days should be considered sufficient to break seniority. This latter proposal clearly destroyed a prior consensus; so far as the record shows, the proposal served no legi- timate bargaining purpose beyond the promotion of some mechanical symmetry in contract language. Certainly Respondent's new position ruffled union negotiators considerably. And, despite management's subsequent retreat to its prior 90-day position, the contretemps, thus revealed, persuasively suggests Respondent's lack of any genuine desire to reach a consensus. Though Respondent's negotiators cannot be faulted for their reluctance, through- out, to consider tripartite arbitration the capstone for prospective contractual grievance procedures, Martin's facile declaration that the firm was content with procedures for grievance settlement which did not preclude strikes clearly reflects management's reluctance to sanction meaningful collective bargaining. True, firm negotiators did thereafter promptly satisfy their settlement commitment to propose grievance pro- cedures pursuant to which, whenever deadlocks developed, the Federal Mediation 1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Conciliation Service would have to be "called in" to promote some final disposi- tion Company spokesmen, however, refused to concede that such conciliators should have the power and right to suggest methods of grievance settlement which would then be mandatory. With matters in this posture, Respondent's compliance with its settlement stipulation must be considered merely technical; basically, Respond- ent fully revealed its lack of desire for a consensus calculated to guarantee grievance settlements free from strife. When union spokesmen finally conceded the point, they called for a further commitment that strikers, under such circumstances, should not be subject to replacement or reprisal; substantially, they sought, thereby, to preserve for grievance strikers some status which would match that provided, pursuant to statute, for unfair labor practice strikers. Thus, when Respondent withheld its con- currence, plant workers were, realistically, put on notice that, whenever they might seek to press union positions regarding a grievance through sanctions which the contract did not proscribe, they would have to do so at their own risk. Such a posi- tion, taken during negotiations, smacks of "whipsaw" techniques, and can hardly be considered, within context, reflective of good faith. Though bargaining for "management rights" clauses, particularly when such pro- visions have been suggested to counter some union demand, cannot be considered, per se, violative of the statute, negotiations for such a contractual provision must still conform with statutory good-faith bargaining standards. N.L.R.B. v. American National Insurance Co., 343 U.S. 395, 409. Consistently with this decisional doc- trine, Respondent's negotiators, contrary to General Counsel's contention, cannot be faulted merely for proposing a contractual provision which purportedly reserved such "extensive" powers for management that the Union could not "reasonably" concur and still retain any strength as the workers' bargaining representative. Nevertheless, Respondent's bargaining attitude, revealed through its persistent demand for man- agement prerogative provisions which would permit its retention of complete control over numerous matters regularly considered mandatory subjects for collective bar- gaining, would seem to have some legitimate, evidentiary significance, considered together with other relevant circumstances, when a determination is required whether the respondent firm, through the totality of conduct chargeable to its representatives, has satisfied statutory good-faith bargaining standards. WATE, Inc., 132 NLRB 1338, 1353; "M" System, Inc., etc., 129 NLRB 527, 550, and cases therein cited. My review of the present record has convinced me that Respondent's "state of mind" revealed through negotiations, with respect to the matter now under consideration, did not satisfy such standards. First note should be taken of the fact that Respond- ent's spokesmen did not proffer their "management rights" suggestion to counter some union demand. (When union negotiators subsequently suggested their readiness to relinquish previous "union shop" proposals, should Respondent drop its "manage- ment rights" proffer, Martin rejected the concept. Nor was any substitute quid pro quo suggested thereafter.) So far as the record shows, rather, Respondent's "manage- ment rights" proposal prior to the December 31 settlement, despite the firm's seeming readiness to consider minor modifications, derived from a frame of mind which, con- sidered in context, would clearly merit characterization as a frame of mind antithetical to good-faith negotiation. Discussions with respect to the firm's "management rights" proposal reveal largely "empty talk" conditioned by management's desire to pursue "mere surface motions of collective bargaining" similar to conduct found statutorily proscribed. N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F. 2d 131, 134 (C.A. 1). True, Respondent's spokesmen, consistently with their settlement commitment, finally did declare their willingness to accept a limited "man- agement rights" clause previously proposed by union negotiators; thereby, such a clause did cease to provide any further basis for contention. Negotiations, however, had then been "dragged out" for 1 year. Within the context revealed by the record, Respondent's persistence in maintaining its position regarding "management rights" proposals clearly may legitimately be characterized a contributory factor with respect to this delay. Negotiations regarding Respondent's obligation to provide bulletin board space for union notices, together with related negotiations regarding the matter of plant access for union representatives in connection with grievance processing, did not develop any clear-cut disagreement before the December 31 settlement. Yet thereafter, despite the firm's commitment to satisfy statutory "good faith bargaining" standards with respect to seven designated contract questions, Respondent's negotiators belatedly cre- ated a new barrier to consensus by their niggard demand for some veto privileges calculated to circumscribe the Union's right to post notices on plant bulletin boards or set up plant visits by union representatives to check and process workers' griev- ances. Bulletin board posting privileges for union notices, within plants, represent common industrial practice. Regarding a situation which may be compared legiti- WHEELING PACIFIC COMPANY 1223 mately with the situation now under consideration, this Board has held that "Respond- ent's handling of the bulletin board matter, taken in the context of this case, indicates [its] basic unwillingness to accept the principles of collective bargaining and further strengthens our conclusion that [it] has not bargained in good faith." Reed & Prince Manufacturing Company, 96 NLRB 850, enfd. 205 F. 2d 131, 136, 139 (C.A. 1). The need for proper communication and dissemination of information between plant workers and their bargaining representative is vital; General Counsel herein properly notes that this need does not diminish within small-sized plants, with a lesser number of workers concerned. Clearly, Respondent's purpose, when it proposed to permit union spokesmen merely to post "routine" notices while reserving the right to veto even these, was to hinder or suppress a free flow of communication between union representatives and their constituency. Such a purpose certainly reflects a state of mind which can hardly be called well disposed to the development of meaningful collective-bargaining relationships. Likewise, Respondent's refusal to recognize union privileges with respect to plant visits for the purpose of servicing its contract, free from any need to make prior arrangements which management could interdict without contractual restriction, would necessarily "hamper or completely prevent" meaningful, effective, union representation of Respondent's plant workers. Restric- tions and conditions on plant access rights, or maneuvers designed to prevent or hinder a bargaining representative from conferring with its members, have been held to constitute a refusal to bargain, violative of the statute. Mid-America Transporta- tion Company, 141 NLRB 326, enfd. 325 F. 2d 87 (C.A. 7). Similar considerations would seem to be applicable with respect to the present consolidated case With respect to wage questions, first, Respondent's initial position reflected a flat refusal to bargain with respect to the subject. Martin's first proposal called for union recognition that the firm would "continue to be responsible" for job classifications and wage determinations which, within management's judgment, might be deemed necessary to the economic health and stability of the business; this position was not modified for 21/2 months. Martin's third contract proposal was the first which speci- fied wage classifications with designated rate ranges. Then, with the subject con- cededly bargainable, Respondent's spokesmen continued, nevertheless, their resist- ance to union proposals calculated to facilitate the negotiation of some rational wage structure, pursuant to which plant workers might reasonably look for wage increases during their prospective contract's term. Substantially, Respondent's negotiators made their position manifest in three ways: (1) They decried any necessity for a job study, which union spokesmen had requested; (2) they declared management's determination to hold the line with respect to negotiated wage increase grants, plead- ing the firm's need to keep costs down because of market pressures generated by foreign competition; (3) while theoretically conceding the desirability of contractu- ally. specified rate ranges for designated plant positions, they refused to consider a contractual provision for periodic wage progression within such rate ranges, contend- ing that wage increase grants, together with promotional transfers within the plant, should be bottomed solely upon merit and competence, determinable within manage- ment's sole discretion. These gambits, severally and together, served to prolong nego- tiations, reflected Respondent's strategy of delay, and created a climate of futility which finally persuaded union negotiators to suggest that further sessions, without new management proposals, would be fruitless. First. Respondent's primary refusal to negotiate with respect to wages was reasonably calculated to forestall discussions with respect to a subject traditionally considered the very heart of labor contracts. Secondly: Though Respondent's negotiators subsequently did retreat from their initial position, they concurrently rejected union contentions that a rational wage scale formulation, consistent with the skills and responsibilities which various plant positions required, would have to be based upon a preliminary study of job tasks and responsibilities. Respondent's refusal to grant permission for some limited within- the-plant job survey, precedent to the development of job descriptions and job evalua- tion proposals-particularly when considered in the light of management's current, haphazard, wage structure-delayed meaningful negotiations for more than 1 year; that refusal certainly merits consideration now because within context, it demon- strates management's lack of good faith with respect to wage discussions. (This Board has held that unions, charged with statutory responsibility for the representa- tion of workers within a bargaining unit, have rights to information with respect to matters legitimately deemed relevant, or reasonably necessary for the proper dis- charge of their bargaining obligations; detailed job descriptions have been found within this "relevant and reasonably necessary" category. Boston-Herald Traveler Corporation v. N.L.R B., 223 F. 2d 58 (C.A. 1); Lock Joint Pipe Company, 141 NLRB 943, 945-946; cf. Curtiss-Wright Corporation, Wright Aeronautical Division, 1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 145 NLRB 152, wherein the Board concurred with its Trial Examiner's declaration that job descriptions were relevant and reasonably necessary to permit the union therein to discharge its bargaining responsibility.) Within his brief, General Counsel notes, persuasively, that Respondent's eventual grant of permission for union representatives to visit the plant cannot detract from the fact that the firm's year of recalcitrance constituted a substantial "road block" with respect to meaningful negotiations. Thirdly: Respondent's shifts of position with respect to contractually fixed rate ranges for plant jobs within designated labor grades, coupled with its proposals on wage progression, must be considered reason- ably calculated to forestall a consensus. Throughout the discussions previously noted, Respondent's position with respect to these "wage structure" questions was frankly calculated to prevent negotiated raises for plant workers. (So far as the record shows, most of Respondent's proposals contained suggested rates or rate ranges with mini- mum rates less than the lowest then being paid workers within specified job classifi- cations, coupled with maximum rates lower that various "red circle" rates which were then being paid workers within such job classifications. Clearly, workers receiv- ing more than proposed single or minimum rates could derive no benefit from their specification within a contract; likewise, such workers, confronted with single or maximum rates below "red circle" rates currently being paid within their job classi- fications, would find those contractual maximums a barrier to raises, so that they could not hope to achieve, during the contract's term, wages comparable with those enjoyed by fellow workers already being paid "red circle" rates.) Since Respondent's negotiators, first, linked their single rate or rate range proposals with a proposal that wage progression, whether beyond contractually specified single rates or within rate ranges, should be realizable solely through merit grants, plant workers were put on notice that their company did not contemplate wage provisions which would provide any definitive chance for raises, whether current or prospective. Then, when Respond- ent's negotiators finally proposed that "labor grade" rates of pay specified within the firm's last contract draft (set forth therein as single rates) should remain in full force and effect throughout the contract's term, union negotiators were made fully cognizant of the firm's determination to stand pat regarding wage rates, while going through the surface motions of collective bargaining. Respondent may not have been required to make wage concessions; when it masked its determination to make none, however, behind protracted discussions relative to proposals reasonably calcu- lated to provide little more than illusory hope with respect to future raises, the firm's "good faith" was belied. Fourthly: Respondent's spokesmen midway through nego- tiations purportedly relinquished their claim that wage raises could not be granted because of prospective market pressures derived from foreign competition; they took a position, finally, that no raises could be granted, based upon mere managerial judg- ment. Within its total context, Martin's effort to cloak Respondent's dogged intransi- gence with respect to wages, through reliance upon this verbal formula, reflects a retreat to sheer logomachy clearly calculated to stifle further negotiations. With matters in this posture, there can be no doubt that Respondent's spokesmen, by the totality of their conduct throughout these protracted discussions, were working toward a stalemate rather than consensus. And the firm's course of conduct, thus viewed, failed to meet statutory "good faith" standards. I so find. 4. Refusal to furnish financial data Finally, determination would seem to be warranted that Respondent's lack of good faith was both separately and further demonstrated by management's refusal to sup- ply financial data which the union negotiators requested. Respondent presumably would contend that-since management had not claimed a lack of ability to grant wage increases because of poverty, but had resisted wage demands solely because granting demanded increases would tend to weaken its market position in the fact of foreign competition-no conclusion can be considered warranted that its refusal to provide supportive financial data violated statutory requirements. This contention, however, must be rejected. Whatever rational merit I might find in counsel's view, were this a case of first impression, decisional doctrine supportive of the General Counsel's position has crystallized within the past 2 years. Cincinnati Cordage and Paper Company, 141 NLRB 72, 77; Peerless Distributing Company, 144 NLRB 1510; Movie Star, Inc., 145 NLRB 319; The Celotex Corporation, 146 NLRB 48; cf. Charles E. Honaker, 147 NLRB 1184, in this connection. Within its Peerless decision, previously noted, this Board has declared that: The Respondent refused to grant the Union any wage increase or other economic benefit on the ground that it had to remain "competitive," and also refused all WHEELING PACIFIC COMPANY 1225 the Union's requests for financial information . As the Supreme Court has held, "barganing lacks good faith when an employer mechanically repeats a claim of inability to pay without making the slightest effort to substantiate the claim." [N.L.R.B. v. Truitt Manufacturing Co., Inc., 343 U.S. 395.] The Respondent contends that it was not claiming financial inability to grant economic conces- sions , but merely that it could not grant them and remain competitive , and that it was therefore not obligated to give the Union data as to its financial status. We do not agree . The Respondent 's argument that it was not pleading inability to pay, but only that it desired to remain competitive , is self-contradictory. Thus, if granting economic benefits would , according to the Respondent , have the effect of reducing its competitiveness , it follows that the Respondent was asserting its financial inability to grant economic benefits. [Cincinnati Cordage and Paper Company, 141 NLRB 72 ] Moreover , if the Respondent had furnished the rele- vant data , the Union might have been able to show that the Respondent could grant a wage increase and still remain competitive , or, in the alternative, the Union might willingly have reduced its demands . Any such resolution of the major economic issues was precluded by the Respondent's intransigence in this matter. We learn, therefore , that basic principles which underlay Truitt cannot be considered less relevant merely because Respondent may have expressed the view that wage increases would ultimately lead to poverty , rather than that such increases were precluded by present poverty. Such decisional doctrine , in my opinion , cannot be disregarded herein merely because Respondent 's final position with respect to wage increase grants purportedly derived from "managerial judgment" rather than competitive pressures ; since the firm's negotiators never bothered to specify , during negotiations , the judgment factors upon which management claimed to rely, Respondent cannot be heard to contend, now, that such factors differed from those previously cited to support the firm's position. Company counsel has suggested that since the Union 's demand for a look at the firm's books was not presented until the negotiations were patently drifting toward a stalemate, such a demand was presented and pressed solely for the purpose of "building up a case" against the respondent firm. With due regard for the record as a whole, however, this contention must be rejected . True, spokesmen for the Union conceivably could have pressed a demand for data revelatory of Respondent's financial status long before July 1963; nevertheless , their claimed "lack of diligence" with respect to this segment of contract negotiations , so long as matters related to the wage structure were being reviewed , cannot legitimately be considered a waiver. With Respondent's position regarding wage questions revealed as progressively less flexible with each successive proposal , union spokesmen cannot be faulted because of their demonstrated desire, however belated , to forestall a foreseeable deadlock relative to such questions. As Trial Examiner Reel noted , with Board approval, within his Cincinnati Cordage report: It may well be that such data would not have enabled the Union to detect what the Company has since conceded-that a more modest increase than that demanded might have been in order . On the other hand the Union might have been able, had the Company furnished data, to show the Company that it could absorb a wage increase and still stay competitive . It is also possible that upon receiving pertinent financial data the Union would have abandoned its demands or scaled them down to a point which would have appeared more reasonable to the Company. Having created the situation which persuaded union negotiators to present their request, Respondent cannot be heard to claim , now, that the request represented nothing more than some tactical maneuver , or that compliance with the request would have been futile. Because of these considerations , I find that Respondent 's final refusal to furnish data with respect to its financial condition , pursuant to the Union 's request, both capped its demonstration of "bad faith" negotiation, and, separately considered, con- stituted a refusal to bargain, within the meaning of the statute. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The conduct of Respondent set forth in section I][I, above , since it occurred in connection with the operations described in section I, above, had and continues to have a close , intimate , and substantial relation to trade, traffic , and commerce among the several States, and, absent correction , would tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. 1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Since it has been found that Respondent engaged and continues to engage in cer- tain unfair labor practices, it will be recommended that the firm cease and desist therefrom, and take certain affirmative action, including the posting of appropriate notices, designed to effectuate the policies of the Act, as amended. Specifically, it has been found that Respondent refused and continues to refuse to bargain collectively in good faith with the union entitled to function as the exclusive representative of Respondent's workers within a unit herein found appropriate for the purposes of a collective bargain. My recommendation, therefore, will be that the Board order the respondent enterprise to bargain collectively, upon request, with the Union as the exclusive representative of its employees within the appropriate unit herein found, and if an understanding is reached, embody such understanding in a signed agreement. Further, my recommendation will be that the Board order Respondent, pending its resumption of negotiations, to cease and desist from its refusal to grant merit wage increases to workers within the bargaining unit, consist- ently with previous policy. Since it has been found, finally, that Respondent refuses to supply or make available for union negotiators relevant financial data requested during the negotiations, my recommendation will be that the Board order Respondent to supply or make available the designated information, upon request. Since the record will support a determination that Respondent's management, dur- ing September 1962 negotiations, suspended preparations to grant a substantial num- ber of designated plant personnel merit raises, for reasons subject to statutory inter- diction, it will be recommended further that Respondent take positive action calcu- lated to restore, for such plant personnel, the benefits or privileges which they would have received but for the,firm management's decision to suspend further action regarding projected merit raises. Specifically, it will be recommended that Respondent forthwith grant those workers previously selected to receive merit raises, pursuant to management's September 1962 wage review, the wage increases which such workers would have received but for management's prosciibed decision, retroactive to September 1, 1962, Respondent's previously planned effective date for the raises in question. Respondent should, like- wise, make whole each plant worker, previously selected to receive such a merit increase, for any loss of pay which he may have suffered by reason of Respondent's decision to withhold merit increase grants, by paying to each such designated worker a sum equal to that which he would have received by virtue of Respondent's projected raise, plus interest upon the sums withheld at the rate of 6 percent per annum. See Isis Plumbing & Heating Co., 138 NLRB 716; Continental Bus System, Inc., d/b/a Continental Rocky Mountain Lines, Inc., 138 NLRB 894; Oilfield Maintenance Co., Inc, 142 NLRB 1384, 1388. Compare Dove Manufacturing Company, 149 NLRB 1408; Bethlehem Steel Company (Shipbuilding Division), 147 NLRB 977, in this connection. Respondent's course of conduct, despite its revelation of the firm's reluctance to bargain, suggests no purpose, generally, to limit the lawful rights of Respondent's workers. With matters in their present posture, no broad order, calculated to protect employee rights in general, seems warranted. My recommendation, therefore, will be that Respondent be ordered merely to cease and desist from any continued refusal to bargain with the Union, and that it be further ordered to cease and desist from interference with, restraint, or coercion of employees in any like or related manner. To make the notices, which Respondent will be required post, more comprehen- sible to the firm's employees, the commitments set forth therein will be preceded by a short statement of the factual determinations which have given rise to them. Cf. Wabana, Inc., 146 NLRB 1162 in this connection. In the light of the foregoing findings of fact, and upon the entire record in this case, I make the following CONCLUSIONS OF LAW 1. Wheeling Pacific Company is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended. 2. International Association of Machinists, AFL-CIO, District Lodge No. 87, and Local Lodge No. 653, are labor organizations within the meaning of Section 2(5) of the Act, as amended, which admit employees of Wheeling Pacific Company to membership. 3. All production and maintenance employees of Wheeling Pacific Company at its Woodlake, California, plant, including shipping and receiving department employ- ees, and regular part-time employees, but exclusive of office clerical employees, sales- WHEELING PACIFIC COMPANY 1227 men, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of a collective bargain, within the meaning of Section 9(b) of the Act, as amended. 4. At all times material herein, subsequent to November 21, 1961, the Union has been entitled to recognition as the exclusive representative of employees of Wheeling Pacific Company within the unit described above, pursuant to the provisions of Section 9(a) of the Act, as amended, for the purpose of collective bargaining with respect to rates of pay, wages, hours of work, and other terms and conditions of employment. 5. By its refusal to negotiate meaningfully or bargain collectively in good faith with union representatives since April 8, 1962; by its refusal to grant merit wage increases to workers, within the unit described above, consistently with previous policy; and by its refusal to make available, upon request, financial data required to substantiate its claimed lack of ability to grant wage increases due to the pressures of competition, Respondent has refused to bargain with the Union; thereby Respond- ent has engaged and continues to engage in unfair labor practices affecting commerce, within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act, as amended. RECOMMENDED ORDER Upon these findings of fact and conclusions of law, upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that Respondent, Wheeling Pacific Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Further refusals to bargain with International Association of Machinists, AFL- CIO, District Lodge No. 87, and Local Lodge No. 653, as the exclusive representa- tive of all production and maintenance employees at its Woodlake, California, plant, including shipping and receiving department employees, and regular part-time employ- ees, but exclusive of office clerical employees, salesmen, professional employees, guards, and supervisors as defined in the Act. (b) Interference with, restraint, or coercion of employees, in any like or related manner, in connection with their exercise of the right to self-organization, to form labor organizations, to join or assist International Association of Machinists, AFL- CIO, District Lodge No. 87 and Local Lodge No. 653, or any other labor organiza- tion, to bargain collectively through representatives of their own free choice, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the poli- cies of the Act: (a) Upon request, bargain collectively in good faith with International Association of Machinists, AFL-CIO, District Lodge No. 87 and Local Lodge No. 653, as the exclusive representatives of all employees within the unit found appropriate herein for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an under- standing is reached, embody such understanding in a signed agreement. (b) Furnish International. Association of Machinists, AFL-CIO, District Lodge No. 98 and Local Lodge No. 653, upon request, financial data calculated to substan- tiate Respondent's position regarding its claimed lack of ability to grant wage increases and stay competitive, which will enable the aforesaid Union properly to discharge its functions as the statutory representative of workers within the bargain- ing unit previously described. (c) Resume forthwith its previous practice with respect to merit wage increase grants for workers within the bargaining unit previously described, and make whole any such worker designated or selected to receive a merit raise, pursuant to Respond- ent management's September 1962 wage review, for any loss of pay which he may have suffered by reason of Respondent's subsequent decision to withhold such merit raises, plus interest upon the sum withheld at the rate of 6 percent per annum. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary or appropriate to permit an analysis of the backpay amounts due the employees concerned. 1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Post at its place of business in Woodlake , California, copies of the attached notice marked "Appendix ." i Copies of the notice , to be furnished by the Regional Director for Region 20, shall be posted , immediately upon their receipt , after being duly signed by a representative of the respondent enterprise . When posted , they shall remain posted for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that these notices are not altered , defaced, or covered by any other material. (f) File with the Regional Director for Region 20, within 20 days of the date of service of this decision , a written statement setting forth the manner and form in, which it has complied with this Recommended Order.2 I Should the Board adopt this Recommended Order the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. Further, should the Board's order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforc- ing an Order" shall be substituted for the words "a Decision and Order." 2 Should the Board adopt this Recommended Order, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this- Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES 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, as amended, we hereby notify our employees that: Following a hearing duly held, the Board's Trial Examiner found that representa- tives of this Company have refused to bargain collectively in good faith with union spokesmen, qualified to represent this Company's plant workers. The course of con- duct found attributable to this Company's representatives was, further, found to constitute unlawful interference with the statutory right of our plant employees to bargain collectively through representatives of their own free choice. To remedy the situation created by the course of conduct which the Trial Examiner found unlawful, we have been directed to bargain, upon request, with representatives of the Union designated below; to take certain further positive action, calculated to facili- tate such collective bargaining; to refrain from future conduct comparable with that found unlawful; and to give you proper assurances that we shall not, hereafter, inter- fere with, restrain, or coerce you, with respect to your exercise of rights which the National Labor Relations Act, as amended, guarantees. Pursuant to this directive, we hereby assure you, as follows, that: WE WILL bargain, upon request, with International Association of Machinists, AFL-CIO, District Lodge No. 87, and Local Lodge No. 653, as the exclusive representative of all our employees in the bargaining unit described as appro- priate in the Trial Examiner's Decision on the case, with respect to rates of pay, wages, hours of employment, and other conditions of employment, and embody in a signed agreement any understanding reached. WE WILL furnish or make available to the Union designated, upon request, the financial data upon which we rely in support of positions we take in opposition to wage increase proposals which the Union presents. WE WILL resume our previous practice with respect to merit wage increase grants to workers within the bargaining unit described as appropriate in the Trial Examiner's Decision on the case. WE WILL pay workers previously designated or selected to receive a merit raise, pursuant to our September 1962 wage review, the sum which they would have received had such merit raises been granted with a September 1, 1962, retroactive date, plus interest upon such sums at the rate of 6 percent per annum. WE WILL NOT interfere with, restrain, or coerce our employees-through refusals to bargain in good faith, refusals to furnish requested financial data, refusals to grant merit wage increases, or in any like or related manner-with respect to their exercise of the right to self-organization, to form labor organiza- tions, to join or assist International Association of Machinists, AFL-CIO; Dis- trict Lodge No. 87 or Local Lodge No. 653, or any other labor organization, to ANDERSON & SONS, INC. 1229 bargain collectively through representatives of their own free choice, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as amended. WHEELING PACIFIC 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. Employees may communicate directly with the Board's Regional Office, 830 Market Street, San Fran- cisco, California, Telephone No. 556-6721, if they have any question concerning this :notice or compliance with its provisions. Anderson & Sons, Inc. and Westfield Etchers and Lithographers of Metal Printing Workers Union, No. 487, I.P.P. and A.U. of N.A., AFL-CIO. Case No. 1-CA-4684. March 26, 1965 DECISION AND ORDER On January 8, 1965, Trial Examiner William W. Kapell issued his Decision in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed an exception to the Trial Examiner's Decision and a supporting argument. 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 [Chairman McCulloch and Members 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 rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the Respondent's exception and argument, and the entire record in this case, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as -amended, the Board hereby adopts as its Order, the Order recom- mended by the Trial Examiner, and orders that Respondent Ander- son & Sons, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 151 NLRB No. 124. Copy with citationCopy as parenthetical citation