Bemis Bro. Bag Co.

National Labor Relations Board - Board Decisions

Oct 10, 1951

96 N.L.R.B. 728 (N.L.R.B. 1951)

728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mendations herein and the Board's order thereon are coextensive with the
threat. The Trial Examiner will therefore recommend that Respondent cease
and desist from in any manner infringing upon the rights of employees guaran-
teed in Section 7 of the Act.
Upon the foregoing findings of fact and the entire record in the case the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. By interfering with , restraining, and coercing its employees in the exercise
of rights guaranteed by Section 7 of the Act, to the extent herein found to
be violative of the Act, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
2. The aforesaid labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume I
BEMIS BRO. BAG CO . and UNITED TEXTILE WORKERS OF AMERICA, AFL.
Case No. 10-CA-1162. October 10, 1951
Decision and Order
On June 15, 1951, Trial Examiner Henry J. Kent issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had not engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be dismissed, as set
forth in the copy of the Intermediate Report attached hereto. There-
after, the complainant and counsel for the Board filed exceptions and
supporting briefs. The Respondent submitted a brief in support of the
Trial Examiner's Intermediate Report.
The Board I has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are affirmed. The Board has considered the Intermediate Re-
port, the exceptions and briefs, and the entire record in the case, and
adopts the Trial Examiner's findings of fact with certain exceptions
noted below, but rejects his conclusions and recommendations.
The Trial Examiner found that the evidence failed to sustain the
complaint allegation that the Respondent has refused to bargain with
respect to the rental of housing facilities, owned and operated by the
Respondent, in violation of Section 8 (a) (5) of the Act. We do not
agree.
1. The Trial Examiner concluded that because the Respondent and
the Union have negotiated a comprehensive contract, although the
'Pursuant to the provisions of Section 2 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Chairman Herzog and Mem-
bers Houston and Reynolds].
96 NLRB No. 101.
BEMIS BRO. BAG CO. 729
agreement does not include any provision relating to company housing
facilities, that the Respondent has not refused to bargain in good faith
within the meaning of Section 8 (a) (5). This conclusion is unwar-
ranted on this record.
The complaint alleges that on September 6, 1950, and at various
times thereafter, the Union requested the Respondent to bargain with
respect to the terms and conditions of housing in the housing develop-
ment owned and operated by the Respondent and that on.or about
September 8, 1950, and at all times thereafter, the Respondent refused
to bargain on this subject. In its answer; amended answer, and written
replies to the Union, as well as in a stipulation received in evidence,
the Respondent admits these allegations. The Respondent admits in
its answer that on September 8, 1950, October 11, 1950, November 6,
1950, and thereafter, it refused to bargain with the Union as to the
rental of housing owned by the Respondent. The Union made written
requests to bargain on September 6, 1950, September 27, 1950, and
November 6, 1950, and oral requests during contract negotiations on
October 18 and October 20, 1950. On November 6, 1950, the Union
made its final request to bargain before filing its charge. No reply was
made to this written request. The charge was filed on November 20,
1950-before the conclusion of contract negotiations.
The Respondent has not receded from its original attitude of refus-
ing to bargain with respect to its housing units, expressed in its first
letter to the Union on September 8, 1950. At that time it stated,
through its superintendent, "this is purely a landlord-tenant relation-
ship and has nothing to do with working conditions of the employees
and is not one pertaining to working conditions coming within the
field of operation of a contract between the Company and the Union,
and is therefore not the subject of collective bargaining." By letter
dated September 27, 1950, the Union repeated its request, and the Re-
spondent replied by letter on October 11, 1950. The company super-
intendent's second letter on October 11, 1950, stated that the Respond-
ent would be glad to discuss the matter at the then forthcoming
scheduled contract negotiation conference, but emphasized, "I ex-
pressly wish to call attention to the fact that I do not in any way con-
cede that this is a bargaining issue, . . ." The record does not disclose
the details that occurred at the bargaining conferences on October 18
and October 20, 1950. But the stipulation signed by the Respondent,
the Union, and the General Counsel leaves no room to question the fact
that the Respondent had not bargained on the issue of company hous-
ing rentals. The stipulation reads, in part : "During these conferences,
Union representatives requested that Respondent cancel its rental in-
creases announced by a notice identified herein as Exhibit 3, and that
it bargain with the Union relative to the future rental of housing facili-
ties by Respondent to its employees for whom the Union is the collec-
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive bargaining representative. Respondent refused this request."
[Emphasis supplied.]
On these facts no inference can be drawn that the Respondent had
perfcjned its asserted statutory duty or that the Union had with-
drawn its demands. It appears from the Intermediate Report that
the Trial Examiner may have been influenced by a belief that the griev-
ance procedure, established by the contract, would be available to
remedy a, discrimination with respect to company housing conditions.
The Union's brief filed with the Board states that there is no provi-
sion in the contract covering such a grievance, and the Respondent like-
wise, in its brief filed with the Board, vigorously denies that the griev-
ance procedure in the contract would permit the handling of griev-
ances involving company rentals. Thus both the Union and the Re-
spondent deny that the contract grievance procedure may be invoked.
Nor does the record show that the Union abandoned its request at
any time. The contract contains no express waiver. Moreover, the
record demonstrates that the Union insistently pressed its demand to
bargain on the issue of company housing rentals. In these circum-
stances, we perceive no "logical justification in the view that in enter-
ing into a collective bargaining agreement for a new year, even though
the contract was silent upon a contr9verted matter, the union should
be held to have waived any rights secured under the Act, ..." 2 It
is clear from the record that the Respondent has failed and refused
to bargain with the Union respecting the issue because of its fixed
view, which it continues to maintain, that the rental of housing units
is not a bargainable issue.
2. We have held that employer-provided living accommodations
are encompassed within the terms "wages" and "conditions of employ-
ment" 3 where such accommodations are an integral part of the employ-
ment relation.' The Court of Appeals for the Fourth Circuit in
2N. L. R . B. v. Allison & Co., 165 F. 2d 766, 768 ( C. A. 6), certiorari denied 335 U S.
814. See also , Inland Steel Company, 77 NLRB 1, 14, enforced 170 F. 2d 247 (C. A. 7),
certiorari denied 336 U. S. 960. We find nothing in the record which demonstrates
that rejection of the Union ' s request to ifargain with respect to company housing facilities
was part of the bargain which the parties made when they negotiated the new contract.
On the contrary , the issue does not appear to have been explored at all by the parties. Cf.
Jacobs Manufacturing Company, 94 NLRB 1214.
Section 8 ( a) provides : "It shall be an unfair labor practice for an employer-(5) to
refuse to bargain collectively with the representatives of his employees , subject to the
provisions of section 9 (a)."
Section 9 ( a) refers to "collective bargaining in respect to rates of pay, wages, hours
of employment , or other conditions of employment ." The parallel language of Section
8 (d), which defines collective bargaining for the purposes of Section 8 (a) 5 and 8 ( b) (2),
is, "with respect to wages, hours and other terms and conditions of employment, .
A Elgin Standard Brick Manufacturing Company , 90 NLRB 1467, 1488-1491: Hart
Cotton Mills , Inc., 91 NLRB 728. A similar conclusion has been reached with respect to
meals furnished to some of the employees at a sawmill and lumber camp ( Weyerhaeuser
Timber Company, 87 NLRB 672). Moreover, we have consistently held that company
housing is a "condition of employment " within the meaning of Section 8 ( a) (3) (formerly
8 (3)) of the Act , which prohibits discrimination "in regard to hire or tenure of employ-
ment or any term or condition of employment...." Abbott Worsted Mills, Inc., 36 NLRB
BEMIS BRO. BAG CO. 731
N. L. R. B. v. Hart Cotton Hills 5 recently stated , "the Company's
contention that company houses are not a proper subject of negotiation
with a union representing the employees cannot be sustained as a gen-
eral proposition ," and that "the subject is one in which the employees
have so great an interest in connection with their work that it should
be a subject of bargaining between the employer and the representa-
tives of the men." 6
The only remaining question presented here is whether any valid
reason appears that would warrant a departure from our previous
holdings that company housing is a proper subject of collective bar-
gaining. The lease introduced in evidence reveals more than is found
in the ordinary landlord -tenant contractual relationship . It restricts
the rental of dwelling units to the Respondent 's employees . A caveat
in the lease provides : "It is understood and agreed that the premises
rented are a part of the plant facilities of the LESSOR and the failure
to have said premises for the occupation by the employees of the
LESSOR would entail upon the LESSOR great loss." All units,
except three , are leased to Respondent 's employees . These three are
leased to two ministers serving the village and the manager of the
village store . It further provides that subleasing "to anyone employed
by any other business or concern than LESSOR " is prohibited.
Tenancy is on a week-to -week basis , and rent may be deducted from
wages owed the employees . The rent, calculated on a monthly figure,
ranges from $13.25 a month for two-room units to $25 . 50 a month for
six-room units. The lease authorizes the Respondent "to deduct and
retain from any money or wages due the LESSEE by the LESSOR"
the weekly rent and charges for electric current and water furnished
by the Respondent-lessor. -
Occupancy is conditioned upon continuing in the Respondent's em-
ploy. The lease also grants the right to the Respondent to terminate
its provisions and take possession of the premises , upon 1 day's
written notice, "if LESSEE should at any time hereafter be dis-
charged, with or without cause, from the service of LESSOR, or
voluntarily quit the service of LESSOR, or decline or refuse to per-
form the work for which LESSEE is employed , or the LESSOR for
any reason desires possession of said premises ; . . ." These signif-
icant factors amply demonstrate that the interest of the employees in
b45, enforced 127 F 2d 438 ( C. A. 1) ; Great Western Mushroom Company , 27 NLRB 352;
Industrial Cotton Mills Company, Inc ., 50 NLRB 855 ; Indianapolis Wire-Bound Box Com-
pany, 89 NLRB 617; W T. Carter and Brother, 90 NLRB 2020
6 28 LRRM 2434, 2441.
O The petition for enforcement in Hart Cotton Mills was dismissed by the court because
the Union "did not evince any desire to discuss the matter" during bargaining conferences,
that it was not until a strike had occurred involving other matters that company housing
became an issue and , on the facts in the case , "housing disappeared from the bargaining
field as a practical matter, . . ." ( 28 LRRM at 2440 and 2441 ). This is quite different
from the factual picture here where the Union's demands have been timely and insistently
pressed at every opportunity.
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the subject of company housing rentals is so closely connected with
their work that it cannot be deemed a nonbargainable subject.
We find no merit in the Respondent's contention that it is not re-
quired to bargain because only a portion of the employees in the
bargaining unit live in the Respondent's houses. Of the 295 to '000
dwelling units owned by the Respondent, approximately 85 percent,
or 250, are rented to employees in the unit.7 This is a substantial por-
tion of the unit. But we have held that "the Act vests in a bargaining
representative the authority to bargain for each and all of the em-
ployees in an appropriate unit, and correspondingly requires an em-
ployer to bargain on matters that affect only a portion of the employees
in the unit, regardless of what that portion may be." a We have also
held that the fact that whether or not employees are free to live in
company houses does not alter the employer's statutory obligation."
We find, therefore, that the Respondent's owned-and-operated hous-
ing units are a mandatory subject of collective bargaining under the
Act; that the rental of such units is an integral part of the subject of
company housing; and, accordingly, that the Respondent on Septem-
ber 8, 1950, September 27, 1950, November 6, 1950, October 18, 1950,
October 20, 1950, and thereafter, by refusing to bargain with the
Union concerning the housing rentals, has violated Section 8 (a) (5)
of the Act.
The Remedy
Because the Respondent has rigidly maintained and is maintaining
that the terms and conditions of housing in the housing development
owned and operated by it are not the subject of collective bargaining,
but are matters about which the Respondent is free to act unilaterally,
we find it necessary, in order to effectuate the policies of the Act, to
require the Respondent to refrain from making any unilateral changes
with respect to the terms and conditions of employee-occupancy of
company-owned houses without prior consultation with the Union;
and in addition, to require it to bargain collectively with the Union
upon request; and if an understanding is reached, embody such under-
standing in a signed agreement.
7 A stipulation in evidence shows that since August 1, 1950, the Respondent has em-
ployed from 750 to 900 employees in the bargaining unit, and that the number employed
in the unit at present is 750 The Respondent's office manager and comptroller testified
that 950 employees are in the unit. His testimony also shows that from 325 to 340
employees in the unit live in the houses. Thus, whether the number of employees in
the unit is 750 or 950 , between 35 percent and 45 percent of the employees live in the
company houses.
Respondent 's statement in its brief , that approximately 60 residents are not Respond-
ent's employees , can only refer to family members of employee- lessees and not to inde-
pendent lessees , as the record is clear that all except 3 units are leased to the Respondent's
employees.
Weyerhaeuser Timber Company, 87 NLRB 672, 674. Elgin Standard Brick Manufac-
turing Company, 90 NLRB 1467.
9 Elgin Standard Brick Manufacturing Company, 90 NLRB 1467, 1490.
BEMIS BRO. BAG CO.
Order
733
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Bemis Bro. Bag
Co., its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with United Textile Workers
of America, AFL, as the exclusive representative of its employees in
the unit herein found appropriate with respect to the terms and con-
ditions of employee occupancy of company-owned houses.
(b) Making any unilateral changes affecting any employee in the
unit represented by the Union with respect to company housing with-
out prior consultation with the Union.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Textile Workers
of America, AFL, as the exclusive representative of all production and
maintenance employees at the Respondent's Talladega, Alabama,
plant, including employees of the warehouse, millyard, shipping and
receiving departments, but excluding laboratory and research techni-
cians, engineers, time-study men, nurses, watchmen and gatemen, plant
stenographers, timekeepers, classers, cotton buyers, and other profes-
sional employees; employees designated on the payroll as Village,
Land Improvement, Parkway Garage, Farm and Dairy or Bemiston
Village employees; office and clerical employees; assistant overseers,
guards, and supervisors as defined in the Act, with respect to terms and
conditions of employee occupancy of company-owned houses, and, if
an agreement is reached, embody such understanding in a signed
agreement.
(b) Post immediately at its plant at Talladega, Alabama, copies of
the attached notice, marked "Appendix A." 9 Copies of said notice, to
be furnished by the Regional Director for the Tenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent immediately upon receipt thereof, and thereafter
continuously maintained by it until said notices shall have been posted
for sixty (60) consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Tenth Region in writing
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
0In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be inserted before the words "A Decision and Order ," the words "A
Decree of the United States Court of Appeals Enforcing."
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with UNITED TEx-
TILE WORKERS OF AMERICA, AFL, as the exclusive representative
of all of the employees in the bargaining unit described herein
with respect to the terms and conditions of employee occupancy
of company-owned houses, and if an understanding is reached,
we shall embody such understanding in a signed agreement.
WE WILL NOT make any unilateral changes affecting any em-
ployees in the unit represented by the union with respect to
company-housing without prior consultation with the union.
The bargaining unit is:
All production and maintenance employees at our Talla-
dega, Alabama, plant, including employees of the warehouse,
millyard, shipping and receiving departments, but excluding
laboratory and research technicians, engineers, time-study
men, nurses, watchmen and gatemen, plant stenographers,
timekeepers, classers, cotton buyers, and other professional
employees; employees designated on the payroll as Village,
Land Improvement, Parkway Store, Parkway Garage, Farm
and Dairy or Bemiston Village employees; office and clerical
employees; assistant overseers and supervisors as defined in
the Act.
BFziIs BRO. BAG CO.,
Employer.
Dated -------------------- By -------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and
must not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Upon a charge filed and served by United Textile Workers of America, A. F. L.,
herein called the Union, the General Counsel of the National Labor Relations
Board, herein called, respectively, the General Counsel' and the Board, by
the Regional Director for the Tenth Region (Atlanta, Georgia), issued a com-
plaint dated April 13, 1951, against Bemis Bro. Bag Co., Talladega, Alabama,
herein called the Respondent, alleging that the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
'This term includes counsel appearing on behalf of the General Counsel.
BEMIS BRO . BAG CO. 735
and (5) and Section 2 (6) and (7) of the Labor Management Relations Act, 61
Stat. 136, herein called the Act. Copies of the charges and the complaint
together with a notice of hearing were duly served upon the Respondent and
the Union.
With respect to the unfair labor practices, the complaint alleges in substance
that on and after September 8, 1950, the Respondent refused to bargain col-
lectively with the Union as the exclusive bargaining representative of all its
employees in an appropriate bargaining unit with respect to the terms and
conditions concerning leases of housing units rented to employees in the unit.
The Respondent duly filed its answer admitting generally the allegations of
the complaint regarding its business operations but denying the commission of
the unfair labor practices alleged.
Pursuant to notice, a hearing was duly held on May 2, 1951, at Atlanta, Georgia,
before the undersigned Trial Examiner.
The General Counsel, the Respondent, and the Union were represented by
counsel. Full opportunity to be heard, to examine and cross-examine witnesses,
and to present evidence bearing on the issues was afforded to all parties.
At the close of the hearing, the parties waived an opportunity to present oral
argument. They were then granted 20 days in which to file briefs with the un-
dersigned. A brief from the Respondent has been duly received.
Upon the entire record and from my observation of the witnesses, I make the
following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Bemis Bro. Bag. Co., a Missouri corporation, maintains its principal office at
St. Louis, Missouri. It operates 32 manufacturing plants in various States of
the United States including a plant at Talladega, Alabama, and the only one
involved in this case. At each of these said plants it is principally engaged in
the manufacture, sale, and distribution of cotton, burlap, or paper bags, but
not all of these categories of products are manufactured at the Talladega plant.
During the calendar year of 1950, the Respondent purchased raw materials
valued in excess of $1,000,000 for use at its Talladega, Alabama, plant, approxi-
mately 90 percent of which was shipped to the said plant from points outside of
the State of Alabama. During the same period, the Respondent sold products
manufactured at the plant valued in excess of $2,000,000, approximately 98 per-
cent of which was shipped to points outside the State of Alabama.
II. THE LABOR ORGANIZATION INVOLVED
United Textile Workers of America, A. F. L., is a labor organization within
the meaning of the Act and admits to membership employees of the Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of mates ial facts
1. The appropriate unit and representation by the Union of a majority therein
On October 22, 1946, following a consent election duly conducted under the
auspices of the Board in Case No. 10-R-21655 the Union was certified by the
Board as the exclusive representative of all the employees in the unit described
in the following paragraph.
736
s
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In accordance with the earlier determination by the Board, I find that all
production and maintenance employees at the Respondent's Talladega, Alabama,
plant, including employees of the warehouse, millyard, shipping and receiving de-
partments, but excluding laboratory and research technicians, engineers, time-
study men, nurses, watchmen and gatemen, plant stenographers, timekeepers,
classers, cotton buyers, and other professional employees ; employees designated
on the payroll as Village, Land Improvement, Parkway Store, Parkway Garage,
Farm and Dairy or Bemiston Village employees ; office and clerical employees ;
assistant overseers and all other supervisors with authority to hire, promote,
discipline, discharge, or otherwise effect changes in the status of employees or
effectively recommend such action, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act.
In view of the fact that the Respondent concedes that such unit has continued
to be an appropriate bargaining unit, I further find that on October 22, 1946, the
Union was and has continued to be, at all times material herein, the representa-
tive of the said employees in the above-found unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act .2
2. Alleged refusal to bargain regarding the rental of housing facilities
a. Background relating to housing conditions
According to the credited and uncontradicted testimony of M. B. Waits, assistant
to the plant general manager, the Respondent owns about 3,000 acres of land
immediately abutting and adjacent to the city of Talladega, Alabama (popula-
tion approximately 13,800) ; that the Respondent's plant is located in the ap-
proximate center of this parcel of land (known as Bemiston Village) ; that it
also owns and has operated for many years a dairy farm, a garage and filling
station, and a housing development consisting of about 195 residential buildings
containing about 300 dwelling units which units are rented to various employees
of the Respondent who are employed both within and outside the bargaining
unit'
Insofar as the record shows, satisfactory bargaining relations had been main-
tained between the Respondent and the Union, at least up until August 28,
1950.
9 On November 30, 1950, the Respondent and the Union entered into a new and com-
prehensive collective bargaining agreement for another year covering the employees in the
said unit.
s These dwelling units rent from $13 25 a month for two-room units to $25 . 50 a month
for six-room units. According to the substance of further credited and undenied testi-
mony given by Waits, about 250 of such units are rented to employees included in the
bargaining unit and the balance to other employees working at the plant, excluded from
the unit, or to employees of other facilities operated by the Respondent in Bemiston
Village ; and thaf it has been the Respondent's policy for many years to rent these dwelling
units to employees making application in the order that the applications are received.
Waits also credibly testified without substantial contradiction that a public bus line is
operated between the plant and the city of Talladega, that the said housing is in an
uncontrolled rental area, and that for the past few years newly employed workers have
experienced no difficulty in renting adequate living quarters in Talladega and the nearby
territory.
BEMIS BRO. BAG CO. 737
b. The Respondent's notice to Bemiston tenants on August 28, 1950, and the
Union's reaction thereto
On August 28, 1950, the Respondent posted the following notice on the plant
bulletin boards :
NOTICE TO BEMISTON TENANTS
Effective September 4, 1950, the rent Schedule on Benuston Housing Units
ivill be the same as that in effect in December 1949, subject to minor adjust-
ments already made equalizing rental value of units. [Emphasis supplied.]
All tenants please promptly contact Personnel Department for new leases.'
By letter received in evidence dated September 6, 1950, signed by R. S. Whit-
mire, a vice president of the International Union, and by Leon Browning
(president) and Noble Moxley (vice president) of the Talladega, Alabama, local
of the Union to which the Respondent's employees belong, the Union, in sub-
stance, objected to the posting of the above notice, requested that no change
in the rents of its members be effected, and criticized the Respondent because
it was attempting to increase rents without approval from the Union.
The Respondent, in a reply to Whitmire's above letter dated September 8,
1950, asserted, in substance, that a majority of the employees in the bargaining
unit resided outside the village of Bemiston and that in view of all the circum-
stances pertaining to housing conditions in the area the matter solely concerned
a landlord and tenant relationship which the Respondent deems a nonbargain-
able issue.
Subsequently, on September 27, 1959, Joseph Jacobs (the southern director
for the Union) by letter to the Respondent cited several Board and court de-
cisions which, Jacobs asserted, held that the matters involved at the Talladega
plant raised a bargainable issue and requested the Respondent to bargain with
the Union.
In a reply letter to Jacobs dated October 11, 1950, the Respondent asserted
in substance that the cases cited by Jacobs in his letter were not controlling in
view of the over-all conditions prevailing in the immediate area surrounding
the Respondent's plant, but that a bargaining conference with union representa-
tives to negotiate a new contract was scheduled on October 18, and that while
it deemed the housing matter did not raise a bargainable issue it would be
glad to discuss the question further with the union representatives at this
meeting if the latter brought up the question.
Subsequently, by letter dated November 6, 1950, Jacobs stated, in substance,
that Whitmire (previously identified as a vice president of the International)
had informed Jacobs that the Respondent had again refused to bargain with
the Union regarding rentals of the units during the current contract negotia-
tions, and that unless the Respondent agreed to do so within 5 days he, Jacobs,
would file a charge with the Board alleging that the Respondent was refusing
to bargain.
The record fails to show that the Respondent made any direct reply to this
last letter from Jacobs, but shows conclusively that in the meantime duly desig-
* The record fails to show that the rent of any union member had been increased as a
result of the Respondent's proposal to equalize rentals in the village.
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nated representatives of the Union and the Respondent were engaged in negotiat-
ing a new contract'
Meanwhile , on November 20, 1950, Jacobs filed the underlying charge on which
this complaint is based averring that Respondent had refused to bargain with
the Union.
c. The current contract dated November 30, 1950
The contract signed on November 30, 1950, is a comprehensive collective bar-
gaining agreement including , among other things, recognition , seniority, paid
holiday, vacation with pay, shift differential , grievance procedure , and wage
rate provisions . As found above , it was signed on behalf of the Union by its
international president and vice president and the three principal officers of
the Union 's Talladega , Alabama, local , the local having immediate jurisdiction
over the Respondent 's employees at the Talladega plant.
During the negotiations leading to the consummation of the agreement, there
was clearly some discussion relating to the rental of housing facilities , because
a written stipulation entered into between the parties at the hearing states,
among other things, that :
During these negotiations , Union representatives requested the Respond-
ent to cancel its rental increases announced by the notice identified [in the
record ] as Exhibit 3,' and that Respondent bargain with the Union relative
to the future rental of housing facilities by Respondent to its employees for
whom the Union is the collective bargaining representative . Respondent
refused this request.
B. Concluding findings
The sole issue here is whether the Respondent refused to bargain in good faith
with the Union relative to the rental of housing facilities by Respondent to its
employees . No other unfair labor practices were alleged nor indicated by the
record.
It is axiomatic that the requirements of bargaining under the Act demands
sincere efforts to reach an agreement . In determining whether an employer has
bargained in good faith, its conduct must be examined as a whole for a clear
indication of bad faith as the Board usually will not rely upon any one factor
as conclusive evidence that the employer did not genuinely try to reach an
agreement.
The record plainly shows that after Whitmire , a vice president of the Inter-
national Union, complained to the Respondent that the latter was wrongfully
attempting to change rental arrangements relating to company -owned houses
rented to employees ( some of which housing units were occupied by a minority of
the Respondent 's employees included in the bargaining unit described herein)
Whitmire and Anthony Valente, the president of the International Union, to-
gether with the president, vice president , and secretary of the local union con-
cerned negotiated a new and comprehensive collective bargaining agreement
6 The record does not specifically disclose , except in respect to Whitmire who represented
the Union at the contract negotiations . But since the contract was signed on November
30, 1950, by Anthony Valente , the president of the International , and by R. S Whitmire
on behalf of the International , and by J. B. White, Noble Moxley, and J. A. Vickers, the
latter three persons being respectively the president , vice president, and secretary of
Local 163, on behalf of the local , it is assumed that all five of the above named participated
in the contract negotiations
The record fails to show that the rent of any union member for his housing unit had
been increased . None of the persons who participated in the bargaining negotiations was
called to testify at the hearing.
BEMIS BRO. BAG CO. 739-
covering the employees in the said bargaining unit with the duly designated
bargaining representatives of the Respondent , which agreement was thereafter
duly signed by the above -named union officers and the Respondent on November
30, 1950 , or 10 days after the underlying charge on which this case was filed by
Jacobs, another agent of the Union.
The record indicates that the Union 's bargaining representatives were fully
cognizant of the housing situation at the plant during the contract negotiations.
They did not insist that a provision relating to housing be included in the con-
tract. But, in my opinion , they accomplished a commendable job of collective
bargaining and as an end result obtained a contract with numerous and im-
portant substantive provisions fully protecting the interests of all union members.
The record further shows that new employees experienced little difficulty in
securing adequate housing in the nearby area during- the past several years and
fails to show that the rentals for such housing is higher than rents charged by
the Respondent for similar accommodations.
Since only a minority of the employees in the bargaining unit are tenants in
the Respondent 's housing development , and the record fails to indicate a housing
shortage exists in the area at rentals comparable to the rents charged by the
Respondent , it is my opinion that the rights of such employee may be amply
protected under the comprehensive grievance procedure provided by the provi-
sions of the current contract in evidence.'
In the event the Respondent should ever discriminate against a union employee
regarding housing conditions in its housing development , such employee may seek
relief under the grievance procedure established by the contract or under an
action based upon a charge alleging a violation of Section 8 (a) (1) and (3)
of the Act e
On all of the foregoing and the entire record, the undersigned concludes and
finds that the Respondent has not refused to bargain with the Union in good
faith. He therefore is constrained to recommend that the complaint be dismissed.
As provided in Section 102.46 of the Rules and Regulations of the National
Labor Relations Board any party may , within twenty ( 20) days from the date
of service of the order transferring the case to the Board , pursuant to Section
102.45 of said Rules and Regulations , file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding
(including rulings upon all motions or objections ) as he relies upon together
with the original and six copies of a brief in support thereof; and any party
may, within the same period , file an original and six copies of a brief in support
of the Intermediate Report. Immediately upon the filing of such statement of
exceptions and/or briefs, the party filing the same shall serve a copy thereof upon
each of the other parties. Statements of exceptions and briefs shall designate
by precise citation the portions of the record relied upon and shall be legibly
printed or mimeographed, and if mimeographed shall be double spaced. Proof
of service on the other parties of all papers filed with the Board shall be promptly
made as required by Section 102.85. As further provided in said Section 102.46
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within ten ( 10) days from the
date of service of the order transferring the case to the Board.
T In my opinion , as argued by the Respondent , Weyerhaeuser Timber Company , 87 NLRB
672, is not controlling here In that case some of the employer 's plants were located in
isolated spots and sonre of the union employees weie forced by necessitous circumstances
to avail themselves ,of board and lodging facilities offered by the employer . The necessity
element is not present here. See also , Hart Cotton Mills, Inc, 91 NLRB 728
'Abbott Worsted Mills, 36 NLRB 545 , 127 F. 2d 438 (C A 1).
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 102.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order and all objections thereto shall be deemed waived for all purposes.
MACKAY RADIO AND TELEGRAPH COMPANY, INC., and JOSEPH T. MAZ-
ZOLO AND FREDERICK W. ROBITZER, ON BEIIALF OF THEMSELVES AND
OTHERS
MACKAY RADIO AND TELEGRAPH COMPANY, INC., and FREDERICK W.
ROBITZER AND LADISLAV C. BRE-uER ON BEHALF OF THEMSELVES AND
OTHERS
COMMERCIAL CABLE COMPANY and HARRIET BERGER, ON BEHALF OF
HERSELF AND OTHERS . Cases Nos. 2-CA-285, 2-CA-411, and
2-CA-i61. October 11, 1951
Decision and Order
On February 5, 1951, Trial Examiner Horace A. Ruckel issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had not engaged in any of the unfair labor practices
alleged in the complaint, and recommending that the complaint be
dismissed in its entirety, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the General Counsel and the
charging parties filed exceptions to the Intermediate Report and
supporting briefs, and the Respondents filed a brief in support of the
Intermediate Report. The Respondent and the charging parties have
also requested oral argument. The requests for oral argument are
hereby denied as the record and the exceptions and briefs, in our
opinion, adequately present the issues and the positions of the parties
with respect to the matters herein decided.
The Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial error was committed.' The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions and briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the additions and modifications set forth below.
1. The Trial Examiner found, and we agree, that the strikers for-
feited the protection of the Act by engaging in an unlawful strike,
I In view of our decision herein, we deem it unnecessary to, and do not, decide whether
the Trial Examiner properly (a) denied the motion of the charging parties to reopen the
record herein, and (h) excluded from consideration evidence pertaining to negotiations
between All America and the representative of its employees, and to communications from
All America to its striking employees.
96 NLRB No. 106.