Altex Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Nov 22, 1961

134 N.L.R.B. 614 (N.L.R.B. 1961)

614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cease and desist therefrom and take certain affitmative action to remedy the unfair
labor practices and otherwise effectuate the policies of the Act. Because other em-
ployers in'addition to those named , inthe complaint were involved in the instant vio-
lations; a broad order is required to prevent a continuance or recurrence of such:
violations.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The following employers are employers engaged in commerce within the
meaning of the Act: Friden, Novelty, U.S. Steel, Seagram , Socony, Gimbels, Ameri-
can, NBC, Lennen, Troster, Weedon , and Nielsen.
2. The Respondent is a labor organization within the meaning of the Act.
3. By inducing and encouraging employees of the employers named in paragraph
1, above, other than Friden, to engage in strikes or refusals in the course of their
employment , to perform services, and by threatening , coercing , or restraining said
employers , in each case with an object of forcing or requiring these employers to
cease doing business with Friden, the Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(b) (4) (i ) and (ii ) (B) of the Act.
4. The aforesaid unfair labor practices having occurred in connection with the
operations of the employers named in paragraph 1, as set forth above, have a close,
intimate , and substantial relation to trade, traffic , and commerce among the several
States, and substantially affect commerce within the meaning of Section 2(6) and
(7) of the Act
[Recommendations omitted from publication l
Altex Manufacturing Co., Inc., Artex Corp ., & Metal Masters,
Inc., Division of Arnold Altex Aluminum Co. and Shopmen's
Local Union No. 780 of the International Association of
Bridge, Structural and Ornamental Iron Workers, AFL-CIO.
Case No. 11-CA-1740. November 22, 1961
DECISION AND ORDER
On August 2,1961, Trial Examiner Ramey Donovan issued his Inter-
mediate Report in the above-entitled proceeding, finding, that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Rodgers and Fanning] .
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in this case,
and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations.
134 NLRB No. 69.
ALTEX MANUFACTURING CO., INC., ETC. 615
ORDER
The Board, adopts the Recommendations of the Trial,Examiner with
the following modifications : (1) that the final clause in provision 1(b)
beginning "except to the extent that" to the end of the sentence be
deleted, and a like deletion be made in the corresponding provision of
the notice; and (2) that provision 2(c) read: "Notify the Regional
Director for the Eleventh Region, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply
herewith."'
' In the notice attached to the Intermediate Report as Appendix. the words "Decision
and Oider" are hereby substituted for the words "The Recommendations of a Trial
Examiner " In the event that this Ordei is enforced by a decree of a United States Court
of Appeals, there shall be substituted for the wol ds "Pursuant to a Decision and Order"
the words "Pursuant to it Decree of the United States Court of Appeals, Enforcing an
Order "
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This case was heard in Charleston, South Carolina, on June 13, 1961, upon a
complaint by the General Counsel and answer by Altex Manufacturing Co., Inc.,
Artex Corp., & Metal Masters, Inc., Division of Arnold Altex Aluminum Co., herein
called Respondent.
The complaint alleges that on January 28, 1960, the Respondent and Shopmen's
Local Union No. 780 of the International Association of Bridge, Structural and
Ornamental Iron Workers, AFL-CIO, herein called the Union, the duly authorized
bargaining agent, executed a written contract for the period from December 1, 1959,
to June 30, 1960; it is alleged that on January 28, 1960, the parties reached agreement
on all sections of a contract except wages and employer insurance contributions and
agreed that negotiations thereafter would be limited to the latter matters; it is further
alleged that negotiations continued after June 30, 1960 , on the aforesaid limited sub-
jects with the parties understanding that all terms of the written contract would
continue until an agreement was reached on wages and employer insurance contribu-
tions The complaint alleges that since January 10, 1961, Respondent has refused
to bargain in good faith and has reneged on its aforesaid oral agreement and has
proposed extensive contract changes for the first time in the negotiations. The
aforesaid conduct is alleged to be violative of Section 8(a)(1) and (5) of the Act.
In its answer Respondent denies the commission of unfair labor practices.
All parties participated fully in the hearing. At the conclusion of the case the
General Counsel made oral argument. Respondent waived oral argument but filed
a brief with the Trial Examiner.
Upon the entire record and my observation of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE COMPANY
Respondent consists of duly organized corporations engaged in the fabrication of
aluminum windows and curtain walls with an office and plant in Summerville, South
Carolina, which is the operation involved herein. During the past 12 months, a
representative period, Respondent purchased and shipped directly to its Summerville
plant from points outside South Carolina raw materials and supplies valued in excess
of $50,000. During the same period, Respondent sold and shipped from its Sum-
merville plant finished products valued in excess of $50,000 directly to points outside
South Carolina
Respondent is an employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
II THE LABOR ORGANIZATION
The Union is a labor organization within the meaning of Section 2(5) of the Act-
1616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The parties had been in contractual relations at the Summerville plant since 1955.
The principal representative of the Company in dealing with the Union on labor
relations matters, including the negotiations of contracts for the Summerville opera-
tion, was K. F. Beauchene.' The union representative was J. W. Rutherford, an
international representative of the Union who serviced the local union. Rutherford's
headquarters were in St. Louis, the same being the site of the International Union's
offices. As far as appears the relationship between Beauchene and Rutherford was
cordial and friendly and ready accessibility between them was characteristic.
Past contracts of the parties that are in evidence are for 1-year periods: Decem-
ber 1, 1957, to November 30, 1958; December 1, 1958, to November 30, 1959. The
most recent written and executed contract is for a 7-month period, December 1, 1959,
to June 30, 1960. An unexecuted and disputed contract is for the period July 1,
1960, to June 30, 1961.
A perusal of the above-mentioned documents reveals that they are printed, form-
type instruments, with blank spaces for appropriate insertions such as the name of
the Company, the particular number of the local union, the location of the particular
company, dates, and related matters. Many of the provisions are standardized al-
though there are important provisions, such as classifications and wage rates and
similar items that are obviously customized to the particular company and its em-
ployees involved. The customized items generally appear in typewritten form as
distinguished from the printed standard paragraphs. All the contracts provide for
"Approval As To Form" by the International Union, with space for signature of an
International official thereon. Section 2 of the contracts is a carefully drawn para-
graph delineating the relationship of the International Union to the contract.
From the foregoing factors and others it is apparent that over the years the con-
tract documents between the parties originated and were furnished by the Union.
The detailed 27-page contracts attest to the importance attached to the written instru-
ment and to an effort to have the basic understandings, rights, and obligations of the
parties in precise written form. In short, while there is evidence that the relationship
between Beauchene and Rutherford was friendly and somewhat informal, the Union,
certainly, and also the Company, were careful to embody the terms and conditions of
the basic relationship in carefully worded written contracts.
Beauchene testified that the parties had always negotiated their contracts from a
proposal submitted by the Union. At another point the witness stated that he had
never negotiated a contract without a written proposal from the Union. On cross-
examination Beauchene reiterated the foregoing and stated that in dealing with the
Union for 11 years it had always submitted an initial written proposal? He stated
that in years when there had been relatively few or minor changes in the contract
from the contract of the preceding year or when there had been no changes the
Union had submitted a written contract proposal. The contracts in evidence in the
instant case are all separate instruments. Although these contracts are by their
terms automatically renewable for an additional year absent notice, the parties did
not operate for the succeeding year on the basis of the automatically renewed con-
tract, with addenda or amendments to one or two sections, but executed a new con-
tract on the standardized form previously described. This evidence, including the
fact that the form of the contracts indicates that the Union was the source of the
document, tends to be consistent with Beauchene's aforedescribed testimony.
In connection with the foregoing, as I shall explain in more detail at a later point
in this report, I am persuaded that Beauchene in his own mind in testifying that he
had always negotiated from a written union contract proposal was referring to the
fact that before any final agreement between the parties was consummated and exe-
cuted there had always been a written contract document prepared and submitted
by the Union. The evidence in this case regarding the relationship between Beauchene
and Rutherford persuades me that they did have the practice of discussing and bar-
gaining about prospective contract provisions before submission of a contract docu-
ment. They were both familiar with the basic contract that had been used over a
period of years. As Beauchene testified, in referring to the conversations between
'Beauchene is vice president of Arnold Altex Aluminum Co ; vice president of Metal
Masters, Inc ; vice president of Altex Manufacturing Co, Inc ; and president of the
Artex Corp. Beauchene testified that Arnold Altex Aluminum Co is the parent of the
other subsidiary companies whose plants are located in Summerville.
2In addition to the relationship at the Summerville plant Beauchene apparently knew
and had had dealings with Rutherford and the Union at other locations.
ALTEX MANUFACTURING CO., INC., ETC. 617
himself and Rutherford on various proposed contract items after the June 30, 1960,
contract had expired , and before there was any written proposal submitted , "I felt
that we were in there talking terms of a new contract , like we always were."
Based on the testimony of Beauchene and not controverted by Rutherford and
in fact essentially confirmed by the latter , I also find that it was not unusual in the
past for the parties to continue to abide by the terms of an expired contract during
the period when they were negotiating for a new contract .3 Such a procedure is
not unusual and is a reasonable modus vivendi. It would be unusual and perhaps
illegal for an employer to cut the wages of employees immediately after a contract
had expired and during negotiations on a new contract . The same observation might
be applicable with respect to other terms and conditions of employment embodied in
an expired contract during a period of temporary hiatus.4
B. The events of 1960 and 1961
The 1959 contract expired by its terms on November 30, 1959 . The record does
not show what communications passed between the parties during the latter part of
1959 but since the contract was not automatically renewed apparently one or both
parties gave notice of termination . There is no evidence regarding the negotiations
between the parties for a new contract except for a meeting on January 12, 1960, and
certain incidents on January 27 and 28, 1960.
Details regarding the January 12 meeting are of a rather limited nature and
appear in the record somewhat indirectly . From a synthesis of the testimony of
Rutherford and Beauchene I reconstruct the picture as follows: 5 Notice of termi-
nation of the contract expiring November 30, 1959, was apparently given by the
Union . Although there is no direct evidence on the foregoing point it appears,
as we shall see, that the Company was satisfied with the existing contract and in
subsequent contract negotiations proposed that the new contract continue for an
additional year without change in rates. It is therefore reasonable to conclude,
as I do, that the Union had given the notice of contract termination since it is also
a reasonable inference that the Union hoped to improve for the ensuing year the
wages and other conditions of employment of its members. If the Union 's original
position had- been the same as the Company 's, i.e., to sign a new contract with the
same terms as the expired contract and without rate improvements , the need of
negotiations would have been minimal and there would have been no reason for
the compromise 7-month contract that eventually resulted.
Rutherford testified that on January 27, 1960, he received a telephone call from
Moore, president of the local union .6 Rutherford had previously sent completed
contract forms to Moore in order that Moore could present them to Beauchene for
the latter 's signature . The terms of the contracts reflected what Rutherford states
were the terms agreed upon by the parties on January 12, including a duration
period of December 1, 1959, to June 30 , 1960. Moore informed Rutherford on
January 27 that when Moore had presented the contract to Beauchene , the latter
had refused to sign, without giving a reason for his refusal . Rutherford then made
a long-distance call to Beauchene on January 28 and asked him why he had refused
to sign the contract . Beauchene said that "the best he remembered it was supposed
to have been a one-year agreement "; he said he wanted a 1-year contract from
December 1, 1959, to November 30, 1960 , and that he did not want to negotiate
"anything else in this agreement ; I want a full year agreement." Rutherford then
said to Beauchene that when they had negotiated on January 12 and the Company
had wanted to give no increase in wage rates in the new contract , the Union had
counter-proposed that the contract run only to June 30 , 1960, to which the Company
8 For instance , the 1959 contract expired by its terms on November 30, 1959 ; the
parties agreed upon the terms of a new contract in January 1960 and executed the con-
tract on January 28, 1960, retroactive and effective as of December 1, 1959. It is quite
apparent that the parties continued to operate under the provisions of the expired contract
from the date of its expiration to the date of execution of the new contract The question
of what the situation was after June 30, 1960 , is discussed hereinafter since - it is part
of the issue in the case and is not properly placed as "background "
' No attempt is made to deal with some possible legal points that might be raised re-
garding such circumstances , particularly possible distinctions between provisions accruing
to the Union under a contract and provisions that were primarily the conditions of em-
ployment of the employees themselves . I am simply stating what would be usual and
customary in most situations of a comparable type
There were only two witnesses who testified in the instant hearing . The General
Counsel called Rutherford and the -Respondent called Beauchene
"All the following testimony is Rutherford's
'618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had agreed . After being thus reminded on January 28, Beauchene then said to
Rutherford , during the telephone conversation , that he would agree to sign the con-
tract with the June 30 , 1960 , termination date "providing I don 't have to negotiate
anything else except monetary issues . . . providing come June 30th negotiations
up to or thereafter , if we have to run over the expiration date, we will not have to
negotiate anything but wages or monetary issues." Rutherford said he would call
union headquarters and if he did not call Beauchene within the hour "then it is okay."
Apparently Rutherford did not call Beauchene thereafter and that day Beauchene
signed the contract and gave it to Moore.
Before considering Beauchene 's testimony regarding the January 28 telephone con-
versation , it will be noted that Rutherford in his testimony aforedescribed does not
assert or imply that Beauchene had been acting in bad faith . There was an oral
understanding reached on January 12 regarding the duration of the contract. Beau-
Ichene's recollection on January 27 and 28, at least initially , was different from that
of Rutherford . When Rutherford gave his version to Beauchene the latter either
impliedly agreed that his own recollection had been faulty or, in any event , agreed
to accept the contract with the termination to which Rutherford said they had pre-
viously agreed . This aspect illustrates that even on such an important matter as the
oral agreement on the duration of a contract there was the fallibility perhaps inherent
in all oral understandings notwithstanding the good faith of the participants. It
further illustrates that to the parties it was the written contract that was the salient
factor and that until whatever oral agreement was arrived at had been placed down
in black and white the agreement had not been finalized . This was true on Beau-
-,chene's part and it was certainly true of Rutherford who was not content to operate
on the basis of an oral agreement but took special efforts to see that the written con-
tract was signed by Beauchene.
Beauchene testified that on January 13, 1960, the parties had agreed on a 1-year
contract , December 1, 1959, to November 30, 1960, with a provision for reopening
The contract on wages on June 30, 1960. He testified that the contract presented to
him by Moore on January 27 for his signature was a 7-month contract with an expira-
tion date of June 30, 1960. Beauchene said he refused to sign the contract and when
asked whether he told Moore his reason for refusal , he said, "I sure did." Moore told
-Beauchene that he would get in touch with Rutherford . The following day Ruther-
ford called Beauchene and asked him why he would not sign the contract Beau-
chene replied that it was obvious that the contract presented did not conform to
what had been agreed upon since they had agreed to a 1 -year contract , with a wage
reopener after 6 months when the financial picture of the Company for the first 6
months would be known . Rutherford replied that he had had a rough time selling
his people on the idea of continuing to work without an increase and the only way
the International would agree to sign was on the terms presented , with a June 30
termination . Rutherford told Beauchene again that he had worked hard for him in
getting his people to go along with -a contract containing no wage increase and
Beauchene should sign the contract as a favor to him . After considerable discussion
along these lines Beauchene agreed to sign . He testified that he made no condition
or agreements in connection therewith and felt that the contract spoke for itself.
In resolving the conflict between the testimony of Rutherford and Beauchene I
have not credited or rejected entirely the testimony of either witness. I have also
drawn from various portions of credited testimony and, from the evidence as a whole
certain inferences that to me appear fair and reasonable . The following findings are
the result of a synthesis of credited testimony by the two witnesses . While the actual
conversation on January 28 is of paramount importance the credibility resolution
thereon must involve careful consideration and reconstruction of what occurred
on January 12 or 13?
I have stated my reasons for believing that the Union gave notice of termination
under the provisions of the contract expiring in November 1659. In the ensuing
contract negotiations I believe that the Union proposed improvements in the contract,
including such monetary matters as wages. The Company 's position was that the
contract for the ensuing year should maintain the same rates as its predecessor.
Although it may have been the Company 's original proposal , I believe that in the
course of bargaining and on January 12 the Company, in response to union urging for
'some monetary improvements , then , still adhering to its basic position , proposed a
1-year contract at existing rates but with a wage reopener provision at the end of 6
7 As we have seen, Rutherford stated that the last negotiating session was January 12
Beauchene was somewhat less affirmative as to the date but he believed it was January 13
Whether the meeting was the 12th or 13th I do not consider determinative Rather than
vefer to both dates I-shall use the' date of January 12
ALTEX MANUFACTURING CO., INC., ETC. 619
months, on June 30 , 1960 , at which time the question of a wage increase could be
reexamined . The Union , as Rutherford characterized it, counterproposed a June
30, 1960, termination date for the contract . In other words , as the evidence shows
and as might be presumed in the circumstances , the Union was not happy about not
being able to secure a wage increase . In order to make the best of the situation the
Union agreed to go along with a contract embodying no rate increases but only
until June 30, 1960, instead of November 30, 1960. Thus the Union would secure
a June termination date, a more favorable period for contract negotiation than
November from the union standpoint , as both Rutherford and Beauchene testified.
Also, a June termination date as distinguished from a June reopener date would prob-
ably remove the no-strike clause of the contract as a factor in the June negotiations.
Although the foregoing is my finding as to the facts I am also of the opinion that
there was an honest misunderstanding on Beauchene 's part as to what had been the
ultimate agreement . Unless the parties had been precise on January 12 in summing
.up exactly what they each understood was the final understanding it is not unlikely
that the delineating of a June 30 reopening date was blurred with a June 30 termina-
tion date since in either event negotiations on wages would presumably occur on
June 30 and until June 30 the terms of the contract would be firm . Along the same
lines it may have been that the Union believed that the Company had agreed to
their counterproposal whereas the words used on the actions may have been equiv-
ocal or intended to be otherwise than as understood by the Union.
In the foregoing connection I do not believe that if Beauchene had actually under-
stood on January 27 that 2 weeks previous he had clearly agreed to a June 30 ter-
,mination he would have completely denied that fact . If he knew that he had pre-
viously agreed and had , on January 27, decided to change his position , it appears
more reasonable to suppose that he would have used some excuse such as a lack of
approval of the board of directors or a frank statement to Rutherford that upon
reconsideration he had recalled certain factors that made it impossible to go along
with the June 30 termination . Further, if it was a case of clear repudiation it would
evince a definite position against the June 30 termination and one not so easily
changed on the following day when Beauchene expressly agreed to the terms of the
contract . The same reasoning is applicable to the other side of the coin . If Beau-
chene knew with certainty that the parties had definitely agreed on January 12 to a
1-year contract with a wage reopener, I am doubtful that on January 28, purely as
a favor to Rutherford , Beauchene would have agreed to change the agreement to a
7-month contract , particularly since he knew or believed , as he testified , that a June
termination date conferred distinct advantages on the Union for purposes of
subsequent negotiation.
After Beauchene on January 27 refused to sign the contract because he did not
believe it conformed to the January 12 understanding of the parties, Rutherford
called him the following day. When Beauchene reiterated that they had agreed to a
1-year contract with a wage reopener I find that Rutherford did seek to remind him
that there had in fact been a union counterproposal for a July 30 termination date
and that the parties had agreed to this. Either because Beauchene then recalled
such to have been the fact or because there was a reasonable doubt in his mind re-
garding the accuracy of his own initial recollection he did agree to sign the contract
on January 28 as submitted . I believe considerable discussion occurred before
,Beauchene thus agreed since he probably still entertained some doubts on the matter.
In the course of the discussion I believe that Rutherford may have used as an addi-
tional argument the fact that the Union was still agreeing to go along without-an in-
crease during the contract , that this had been a hard proposition for Rutherford to
sell to his people , and that Beauchene should sign the contract as submitted.
When Beauchene on January 28 agreed to sign the contract it was under the cir-
cumstances aforedescribed . His original goal on January 12 had been a 1-year
contract with no rate increases. The basic objective of stabilized and fixed contract
conditions for a year was never completely abandoned . It was modified to some
degree by the proposed 1-year contract with reopening in June limited to wages.
The ultimate form of the contract was reached under circumstances that reflect
agreement but less than whole-hearted agreement with the idea of a June 30 ter-
mination . As explained , this reluctant agreement resulted from the lack of com-
plete conviction even on January 28, on Beauchene's part, that the June 30 termina-
tion reflected accurately the parties ' earlier discussion or that , in any event, it was
desirable to face the prospect of new contract negotiations on the entire contract
within 6 months rather than at the end of a year. Under these circumstances I find
it credible that Beauchene on January 28 sought to preserve as much of his basic
objective ( fixed contract conditions for 1 year except as to wages ) as possible while
still going along with the June 30 termination. For this reason and because-of other
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
factors I credit Rutherford's testimony on cross-examination that on January 28
Beauchene said, "All right, I will sign it, Jim, I will agree to it as it is, providing
come June 30th negotiations up to or thereafter, if we have to run over the ex-
piration date, we will not have to negotiate anything but wages or monetary issues." a
As I view the foregoing credited testimony as to what Beauchene said on Janu-
ary 28, the focus of the latter's intent was to preserve as much of his basic position
as was possible. If he did not emerge with a contract from December 1959 to
November 1960, with a June 30 reopening limited to monetary matters, his state-
ment to Rutherford on January 28 was an effort to obtain substantially the same
result, i.e., instead of a 1-year contract with a wage reopener in June, a 7-month
contract ending in June, plus an understanding that when negotiations did again
recur they would be limited to monetary issues.
Resuming the narrative of events, we now come to Rutherford's testimony that
in February 1960, after the January 28 conversation with Beauchene, he returned
to his office in St..,Louis and prepared 12 copies of a contract on the customary form.
The contract was the same as the contract that had been executed on January 28,
1960, with the June 30, 1960, expiration date, except that the new contract left the
wage rates blank and had the term of July 1, 1960, to June 30, 1961. Rutherford
testified that he filed in his office the contract thus prepared "to be used any time we
reached an agreement on wages " He did not at any time tell Beauchene or any
company representative what he had done nor did he send a copy of the contract to
Beauchene or the Company. As we shall see, the written contract was first made
known to and presented to the Company in January 1961.
Regarding the aforementioned actions of Rutherford with respect to the new
contract, he testified that he prepared the contract because he and Beauchene had
agreed on January 28, 1960, "that there would be no further negotiations other than
for wages or a shift of the wages into maybe some other monetary or economic
issue" and it was customary for Rutherford to draw up the contract document.
Without at this time expressing my view as to the validity of -Rutherford's posi-
tion or the legal implications thereof, I credit his testimony that he did prepare
the contract in February 1960 and filed it in his office. I also find that Rutherford
believed that he and Beauchene had an understanding that they would limit their
negotiations for the contract to follow the June 30, 1960, contract to monetary
issues. Whether or not Rutherford believed that he and the Company had a con-
tract in January and February 1960, except as to the monetary issues, for the period
July 1, 1960, to June 30, 1961, and whether or not such was the fact, I shall defer
for consideration in my "conclusions."
•Beauehene testified credibly and without contradiction that prior to June 30, 1960,
the Company had received a contract termination notice from the Union in the
usual form. The witness stated that he assumed the parties would thereafter ne-
gotiate a new contract since the old contract was expiring.
Rutherford stated that on May 26, 1960, at the local union meeting he told the
membership that negotiations would soon begin and he asked for proposals on wages
since it had been agreed with the Company that nothing else would be negotiated.
On May 27, Rutherford met with Beauchene and proposed "20 and 5," a 20-cent
an hour wage increase, plus a 5-cent improvement in the health and welfare fund .9
-Beauehene told Rutherford that the figures proposed were "a little preposterous."
Rutherford replied that they were negotiating and all they had to talk about was
money and they would settle for what the Company thought the traffic would bear.io
The next meeting was on June 23, 1960. It was attended by Beauchene and a group
of company representatives and by Rutherford with a team of local union officers, the
local union's business agent, Lee, and the chief shop steward. The Union presented
its prior mentioned "20 and 5" proposal and the Company said its financial position
was the-same but that there would be a directors' meeting soon and after going over
the latest financial reports the Company might then be able to determine its position
on a wage increase. The Union asked if the Company would allow an accountant to
inspect its books and give a report to the Union. The Company was unwilling to
agree to this proposal.
8 Although Rutherford had testified to much the same effect on direct examination I was
more impressed by what he said under cross-examination and I believe this latter testi-
mony to have been more precise and accurate as to what Beauchene said
9
Apparently some local union representatives were present on May 27, -since Rutherford
testified that "We presented" to management the aforesaid proposal
10 The testimony regarding this and succeeding meetings is Rutherford's. Beauchene's
version will be considered hereinafter.
ALTER MANUFACTURING CO;, INC., ETC. 621
On July 8 , 1960, the parties again met and the Company agreed to a proposal that
an accountant go over its books and furnish a report to the Union . The accountant
who performed work for the Union was selected . The accountant performed his
task and subsequently gave a report to the Union.
The next meeting was September 22, 1960. Beauchene was the sole company
representative . Rutherford testified that the reason why there were no meetings
between July 8 and September 22 was that he understood from the local union offi-
cials that Beauchene was on vacation in Europe . At the September 22 meeting the
Union said it did not understand some aspects of the accountant 's report . Beauchene
gave an explanation of the matters thus referred to. The parties discussed wages and
the health and welfare fund. Beauchene said that he expected the directors to meet
on October 4 and perhaps after that he could offer something to the Union.
The parties met on November 16, 1960. Present were Beauchene, Rutherford,
and Lee, the business agent of the local union. Beauchene said that the directors had
not yet met and at this time he could not offer the Union any incroases . Beauchene
proposed that the parties enter into a contract at the end of November to be effective
December 1, 1960 , to November 30, 1961 , the terms to be the same as those then
prevailing . Rutherford said the Union had gone so long without an increase it was
unwilling to go along with such a proposal and "we would rather just go on and work
with the agreement we already had until we could reach an agreement on wages."
Rutherford at this meeting had proposed a 5-cent wage increase and a 2-cent increase
in the health and welfare fund but Beauchene's position was as described above.
On December 21, 1960, Rutherford and Lee again met with Beauchene. They told
him the employees' morale was deteriorating and they asked that the Company offer
some monetary increase . Apparently Beauchene 's position remained the same.
Beauchene's testimony regarding meetings with the Union during the June-
December 1960 period was much less specific than that of Rutherford and for the
most part he did not controvert Rutherford as to particular meetings and the occur-
rences therein. I credit Rutherford's testimony, aforedescribed, except in the follow-
ing respects. Beauchene credibly testified that on December 19, 1960, he and his
family went to Muskogee, Michigan, on vacation and did not return to Summerville
until January 3, 1961. I find that Rutherford did not meet with Beauchene on
December 21. I also find that the November 16 meeting was one where Rutherford
and Lee came to Beauchene's office without an appointment and that it was a brief
conversation. It is quite possible that the discussion described by Rutherford as
occurring on November 16 was on a different date in that same month. Beauchene
did not deny the contents of the discussion which Rutherford placed as occurring on
November 16. I further find that Beauchene was not in Europe in 1960, and that
between July 8 and September 22, 1960, the Union made no effort to communicate
with him.
In addition to his delineation of what occurred at various meetings between June
and December 1960, which manifests that the discussions were confined to monetary
issues, Rutherford stated specifically at the hearing that the only subjects discussed
were monetary matters. Beauchene testified, in reply to a question whether the
meetings in June, July, and September were confined to monetary matters, that:
When we met during the summer of 1960, the thing that was discussed openly
and completely was nothing more than the financial condition of the Company
and its inability to grant increases of any kind at that time. The whole conversa-
tion was restricted to the discussion of the financial statement and that was
everything that was involved.
At later points in his testimony Beauchene said they discussed hospitalization pay-
ments and paid holidays . He said that in June 1960 he, Beauchene , knew that the
Company wanted some extensive changes in the contract and that in June and July
1960 he told Rutherford there would be some changes in the contract. When asked
for more specificity the witness said he could not give dates but believed it occurred
in the summer of 1960, when this contract was up for negotiation" and that the pur-
pose of the meeting was "to sit and discuss the new contract ." Beauchene did not
state what was the response , if any , of Rutherford to the former's statement that the
Company wanted changes in the contract . Beauchene said that at various times
during the summer of 1960 , the Union orally proposed : ( 1) If he would sign a con-
tract they would try to have the same contract they had before; (2) they would sign
a contract if the Company gave more hospitalization and extra holiday; and (3) if
the Company gave 2 cents an hour and would pay for hospitalization the Union
would sign a contract and that the Union was talking in "general negotiating terms
that are usually used in trying to negotiate a contract ." Elsewhere in his testimony
Beauchene stated that he discussed seniority "in the various plants" with Rutherford
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Lee "many, many times," and grievances procedure, hospitalization, and "I have
always complained about the International being a part to these contracts . . . and
I have always screamed my head off about [the checkoff]."
In connection with the last-mentioned portion of testimony, described in the last
sentence of the preceding paragraph, the witness was asked ". . . was the discussion
between the two parties directed to a prospective contract that would succeed the
June 1960 contract." He answered, "I felt that we were in there talking terms of a
new contract, like we always were."
As indicated above I credit Rutherford that the discussions between Beauchene
and the Union in the June-December 1960 period were confined to the subject of
monetary issues, such as wages, increased contributions to health and welfare, paid
holidays, and related items that were translatable in monetary terms as cents per-
hour. 1 find the foregoing finding confirmed by Beauchene's testimony that the
conversations were wholly on the topic of the Company's financial condition and its
ability or inabilit*to give monetary increases as requested by the Union. When
Beauchene testified at other points that he had discussed seniority in the various
company plants with Rutherford on many occasions and had talked about grievances
and other matters, I believe he was referring to conversations over the years rather
than to specific contract discussions in the June-December 1960 period. I reach this.
conclusion although there are portions of Beauchene's testimony that appear to seek
to convey a different impression.
In connection with the latter part of the aforementioned period of negotiations
there is some correspondence that merits attention. On December 1, 1960, Beau-
chene wrote to Rutherford that "it will be necessary on future negotiation meetings to
let me know at least a week or 10 days in advance so that the persons appointed by
management, with authority to negotiate, will be present. " This letter explained
that Beauchene had been assigned additional or other duties "so the Company officials
have decided that negotiations in all areas be conducted by the personnel depart-
ment." In reply, Rutherford proposed a meeting on December 20, "to resume nego-
tiations on monetary issues." The December 13 reply of Beauchene proposed a meet-
ing early in January instead of around the Christmas holidays. No comment was
made by Beauchene as to the scope of negotiations. There was also a grievance filed
on December 13, involving an individual employee's seniority. By letter of Decem-
ber 16, Beauchene discussed this grievance, stating that the seniority issue "would be
covered in Section 17-A of our current labor agreement. . Because of the clear
and concise spelling out of the contract as regards this situation, the Company has no
alternative but to deny the request... Rutherford's December 17 letter to
Beauchene proposed a meeting on January 10, 1961, "to consummate an agreement
on wages to complete a full agreement between the parties." On the same date,
December 17, the president of the local union, Crosby, wrote to Beauchene pro-
posing January 10, 1961, for a meeting "to resume negotiations on monetary issues."
At this juncture for the first time, as far as the record shows, Attorney Bowden
entered the negotiation picture of the Summerville plant.ii By letter of Decem-
ber 23, 1960, Bowden advised Crosby that the date of January 10 was satisfactory.
The letter stated:
At that time we would like for you to have your full proposal so that we may
study same. We do not agree with your statement that the negotiations are to
be conducted only on monetary items. It is our position that the contract is
open in all respects and we intend to present to you a complete proposal after
receiving your proposal on January 10 if there be any matters with which we
do not agree.
On January 10, 1961, Rutherford and a union committee met with Beauchene,
Bowden, and other company representatives. Bowden asked Rutherford if he had
brought any document or proof of agreement. The latter produced the copies of
the contract that he had prepared in February 1960, wherein the wage rates were
blank and the term of the contract was from July 1, 1960, to June 30, 1961. As
previously noted, the Union had not presented these documents to Respondent prior
to this time. After conferring with his people, Bowden said that he considered the
contract thus presented to be a proposal. Rutherford said it was not a proposal.
He narrated the history of the document. Rutherford testified, "Of course, they de-
nied all this." Bowden proposed a subsequent meeting at which the Company would'
present its proposal. The parties then discussed the grievance of the individual em-
ployee Veronee referred to above.
"Attorney Daniel Coffman, Jr, of the firm of Hamilton & Bowden, who represented'
Respondent in the instant case, stated that the firm had been retained by Respondent in,
July 1960.
ALTEX MANUFACTURING CO., INC., ETC. 623
During the period between January 10, 1961, and the next meeting on February
28, the Union requested arbitration of Veronee 's grievance . ia On January 26 Bow-
den, in a letter, reiterated the Company 's position . He also stated that the old con-
tract had expired June 30, 1960 , and since they were operating without an agreement
the Company did not feel obligated to and declined to arbitrate.
On February 15, 1961, Rutherford discussed with Beauchene the seniority of an
employee named Walter . RutheFrford explained that the Union had followed the
steps of the grievance procedure of the contract and that the matter was now
properly raised with Beauchene . Rutherford said he was trying to abide by the agree-
ment . Beauchene said he was also . Rutherford said the employees would walk
out if the Walter matter was not settled . Beauchene replied that he was going to
abide by the agreement and the Union was too and if they walked out it would be in
violation of the no-strike clause.
When the parties met on February 28, 1961,13 there were present a Federal and
a State conciliator . The Company presented a document entitled, "Altex Corporation
Proposal for Amendments to Union Proposal of January 10, 1961." The company
proposals applied to 16 sections of the expired contract and were of a substantial
nature. After studying the company proposal the Union reiterated its position
that all matters except monetary issues had previously been agreed upon and had
been committed to writing and nothing was to be gained by negotiating on the com-
pany proposals . Rutherford said in effect that the Company was being unfair and
was not acting in good faith . He characterized Bowden, with whom he had had
other dealings , as an antilabor lawyer. After a recess the Union made a proposal
on paid holidays which it considered equivalent to 3 cents an hour and also a
proposal relating to the health and welfare fund . The Company said it would con-
sider the matter and the meeting adjourned.
March 1, 1961 , the parties again met . The company said its financial position was
such that it could not go along with the union proposed increases . It was also stated
by the Company that it wished to know the union position on the company pro-
posals which the Company considered related to economic costs Rutherford said
that with perhaps the exception of seniority the company proposals did not involve
economic cost and he went into some details thereof. No agreement was reached
Thereafter no similarly constituted sessions were held between the parties although
Rutherford and Lee spoke with Beauchene on several occasions about trying to
secure a wage increase.
On May 11, 1961, Attorney Bowden wrote to Rutherford stating that the Com-
pany stood ready to bargain on wages, hours , and working conditions . It reiterated
the company position that the contract was open and that the Company would not
restrict itself "to any set or specific items inasmuch as we have previously given to you
our proposal on the matters and things upon which we desireto negotiate."
C. Conclusionary findings
In the preceding sections I have set forth the evidence in considerable detail and
I shall not repeat it at length at this point. I find that on January 28, 1960, the
parties reached agreement on and executed a contract that was to expire by its
terms on June 30, 1960. I also find that on January 28, 1960, the parties reached an
oral understanding that in negotiations that occurred in the period surrounding
the expiration of the June 30, 1960, contract they would confine their negotiations
for a new contract to monetary issues. Both parties were satisfied with the terms
of the expired contract . The Company in fact had wanted the same contract for
a year and had agreed reluctantly to the 7-month , June 30, 1960 , expiration date.
The Union also had been satisfied with terms of the expired contract and had con-
fined its-original demands to monetary matters. Its preference for the short con-
tract rather than a 1-year contract expiring in November 1960, with a June reopener
on wages, was based on a desire to have a June termination with negotiations oc-
curring in June, which it regarded as a more favorable period than the end of the
year.
It is my opinion that the January 28, 1960, understanding was an agreement with
respect to the scope of negotiations that would occur when the June 30 , 1960, con-
tract expired . In another sense it was an agreement as to the terms of a future
contract , i.e., all provisions of the contract that was to expire in June 1960 were
agreed upon as the terms of a new contract with the exception of monetary matters
>a Both the expired June 30, 1960 , contract and the disputed July 1, 1960 , to June 30,
1961 , contract provided for arbitration
1$ The Union filed its charge of unfair labor practices on February 27, 1961.
J
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the duration of the new contract. Althoughl the agreement was reached in-
formally, the relationship between Beauchene and Rutherford was such that I see
no warrant to discount the understanding thus reached.
With respect to the foregoing oral understanding or agreement I do not believe that
the parol evidence rule is involved as Respondent suggests in its brief.14 The parties
were not altering or changing the terms of the written contract. That instrument
operated as written and was effective by its terms from December 1, 1959, to June 30,
1960, expiring on the latter date . Presumably the parties could have commenced
negotiations and discussed provisions of a successor contract at any time prior to
June 30, 1960. They could have agreed in April 1960 or in May or July that the
next contract would contain the same provisions as the old contract with the ex-
ception of wages . Instead, as we have seen, they reached their agreement or under-
standing in January 1960.
Although Rutherford prepared a written contract in February 1960 in accord-
ance with the aforedescribed understanding of the parties he did not inform the
Company of the fact or present a copy thereof to the Company until approximately
1 year later, January 10, 1961. Even at the latter date the document was presented
only after the Company had challenged the Union' s position that their negotiations
were to be limited to monetary matters. At no time had the Union presented the
contract document to the Company for signature. There is therefore no issue of
the Respondent refusing to sign a contract embodying terms that had been agreed
upon, albeit there still being the unresolved matter of monetary issues.15
I am also of the opinion that, although Rutherford had inserted the term of
July 1, 1960, to June 30, 1961, in the contract that he had drawn up, there had
been no agreement reached on this point. If the document had been presented to
the Company for signature the latter could have legitimately raised the term of the
contract as an issue .16 The Company might have proposed an 18-month contract
in order to secure a November 30 termination date since the record shows that it
regarded June as an unfavorable period for bargaining from its own standpoint.
Perhaps another 6-month contract might have been proposed.
In my judgment neither Beauchene nor Rutherford considered that they had a
contract for the period subsequent to June 30, 1960. They had an understanding
regarding the majority of the provisions that the new contract was to contain. They
had never operated in the past under an oral contract. Even in years when the
contract changes were minimal they had always operated pursuant to a separate
new written contract. When there was a hiatus between the expiration of a contract
and the execution of a new contract the parties simply continued to operate pursuant
to the terms of the expired contract and thereafter made the terms of the new
contract retroactive to the prior expiration date.
Rutherford gave no explanation at the hearing why he did not present the contract,
that he had prepared, to the Company for signature. He stated that he filed the
document in his office until an agreement on wages was reached. It is my belief
that Rutherford did not want , during the period covered by the record herein, a
signed contract with wages undetermined. After having entered into the prior con-
tract with no wage increase, I do not believe that he wished to be in the position
of having secured another signed contract with the Company that provided no
increases, albeit having the right to continue to bargain for wages during the term
of such a contract. And, as stated previously, the parties in this case, in my opinion,
had no intention of operating under an oral contract. They intended that their
contract be a written signed instrument and until such came into being they did not
consider that they had a contract. This is true of the Company and it is true of
the Union. The latter throughout its entire period of dealing with the Company
had used a carefully drawn written contract form and in addition to execution by
the parties, execution and approval as to form by the International Union was pro-
vided and secured. In 1960 when the parties had agreed to a 7-month contract with
no change in wages and with the basic contract unchanged Rutherford had exerted
considerable effort and had been careful to secure Beauchene 's signature to the
written contract on January 28, 1960. This, too, when there was no doubt that
the Company as well as the Union had been and was continuing to operate under
the terms of the expired contract and when the execution of the written contract
added nothing to the practicalities of the existing situation.
14 Hawaii Teamsters and Allied Workers Union, Local 996 , 111 NLRB 1220, 1237.
15 H J. Heinz Company v. NLRB ., 311 U . S. 514 ; Mason d Hughes, Inc., 86 NLRB
848, 849-850.
10 Cf. Stylecraft Furniture Company, 111 NLRB 930, 931. -
ALTEX MANUFACTURING CO., INC., ETC. 625
In sum , from June 30 , 1960 , on, I find on the facts of this case , that the parties did
not intend and did have in effect a contract between them . The fact that in the
course of grievance matters Beauchene referred to the provisions of the contract or
the current contract is attributable to the customary practice of the parties to continue
to operate under the terms of the expired contract until agreement was reached on a
new contract . It was to the terms of the expired contract to which reference was
made since it was under these terms that the parties were conducting themselves. I
gave careful attention to Beauchene as, a witness and he did not impress me as
lawyer-like in his choice of words or thought processes.' In conversations with
Rutherford I am confident that Beauchene's words aforementioned were meant as
I have construed them.
During the period following the notice of contract termination given by the Union,
which was the period between May 1960 and December 1960, I find that the parties
were engaged in collective bargaining regarding the terms of a new contract to suc-
ceed the June 30, 1960, expired contract. I am unpersuaded by Beauchene's testi-
mony that during this period he was unaware of what the Union wanted in the
contract simply because he had not received a written proposal from the Union.
The parties had previously reached an understanding that the negotiations would be
confined to monetary issues with the other provisions of the expired contract to be
incorporated in the ultimate contract. I believe that the evidence shows that they
did confine their bargaining during the aforesaid period to monetary matters, i.e.,
wages and items readily translated into monetary terms such as paid holidays, and
welfare fund contributions. As Beauchene testified:
When we met during the summer of 1960, the thing that was discussed openly
and completely was nothing more than the financial condition of the Company
and its inability to grant increases of any kind at that time. The whole con-
versation was restricted to the discussion of the financial statement and that was
everything that was involved.
At another point Beauchene referred to discussions with the Union "in the summer
of 1960, when this contract was up for negotiation" and that the purpose was "to sit
and discuss the new contract." The witness also stated, "I felt that we were in
there talking terms of a new contract, like we always were." The terms that the
parties were discussing were monetary terms and not the numerous sections of the
contract that the Company proposed for revision to the Union for the first time on
February 28, 1961.
Beauchene testified that in June 1960 the board of directors and officers of Re-
spondent had decided that all union contracts would be thoroughly scrutinized and
renegotiated at their expiration dates. He also stated that he was aware at that
time, June 1960, that the Company wanted some extensive changes made in the
contract. As a high company official and the chief negotiator for the Company
at the Summerville plants,i8 it is a reasonable inference that Beauchene was aware
of the nature of the "extensive changes" desired by Respondent and Beauchene, in
fact, never sought to deny such fact at the hearing. I find that Beauchene in June
1960 and thereafter knew the nature of the changes desired by the Company in the
contract 19
In the light of the foregoing, it is my opinion that good-faith bargaining as con-
templated by Section 8(a)(5) of the Act required that Beauchene reveal to the
Union during the summer of 1960 the nature of the specific changes desired by the
Company in the contract on which they were then negotiating. I find that he did
not do so. If the Union had been made aware at that time of the extensive changes
that were first made manifest subsequently on February 28, 1961, the issue over the
January 28, 1960, understanding on the scope of negotiations would have come to
a head at that time. The Union would have made its contention regarding the afore-
mentioned understanding and would have produced the contract document that
Rutherford had prepared. Instead, the evidence shows that the first indication to
"This observation is not intended as a reflection upon the witness To some it would
be regarded as complimentary
18 Although his firm was retained by Respondent in July 1960 Attorney Bowden d d not
manifest his role as negotiator and counsel\ on the Summerville scene until tl:e end of
1960 and early 1961
"With respect to the February 28, 1961, proposals submitted by Bowden, Beanchene
testified that he first saw them in typed form a few days before Bowden submitted them
to the Union . However, Beauchene also stated that he had discussed the proposals very
thoroughly with Bowden before that time although he did not say how long before.
630849-62-vol 134-41
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union that the Company was taking the position that there was no understanding
and that negotiations were not to be confined to monetary matters occurred on Jan-
uary 10, 1961. It was not until this latter date, therefore, that the Union produced
the contract document to support its position. Moreover, as late as sometime in
November 1960, Beauchene, after again refusing a wage increase, proposed a con-
tract from December 1, 1960, to November 30, 1961, with no increase and with the
contract otherwise the same. This was certainly no indication to the Union that
the Company wanted extensive changes in 16 sections of the basic contract.
As I view the evidence, good-faith bargaining required that Beauchene acquaint
the Union as soon as possible about the company position on contract changes,
including any possible conflict between Beauchene's January 1960 understanding
with Rutherford and the decision of the board of directors in June 1960. The fact
is, of course, that Beauchene's and the Respondent's position is that there never was
an understanding with Rutherford regarding the scope of negotiations and 'Beauchene
denied that there was such an understanding on January 10, 1961, when it first came
into issue . Based on Respondent's aforesaid position, arguendo, there would be
equal grounds for concluding that Respondent had not bargained in good faith. If
there had been no understanding in January 1960, the parties did in fact confine their
negotiations in the summer of 1960 to monetary items. The injection of new and
extensive proposals into the negotiations on February 28, 1961, for the first time, is
indicative that the failure to raise these proposals during the preceding negotiations
constituted a lack of good-faith bargaining during said period since Respondent was
aware of the nature of such proposals well prior to February 1961.
I find that on January 10, 1961, Respondent in repudiating its agreement of
January 28, 1960, regarding the scope of negotiations and regarding provisions of
the new contract with the exception of wages, violated Section 8(a) (1) and (5) of the
Act. I also find that on February 28, 1961, by injecting extensive new contract
proposals into the negotiations for the first time, after the parties had been in
negotiations since May 1960 on monetary issues, Respondent violated Section
8(a)(1) and (5) of theAct2o
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with the operations of Respondent decribed in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
It having been found that Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1) and (5) of the Act, it will be recommended that it
cease and desist therefrom and take certain affirmative action designed to effectuate
the policies of the Act.
The nature of the instant case is such that I believe that I would be remiss if I
confined myself to simply recommending that Respondent cease and desist from
refusing to bargain and that it bargain, upon request, with the Union. I wish to state
also that I have neither the inclination, the right, nor the obligation to prescribe
for the parties what contract, if any, they should consummate.21
Remedial action such as the Act contemplates is action designed to place the
parties in the position that would have prevailed but for the unfair labor practice.
Using this standard, it is to be noted that the Union at no time presented a contract
for execution to the Company to cover the period after June 30, 1960. Since prior
to the contract that expired on June 30, 1960, the Union had been endeavoring to
secure monetary increases from the Company. The Union signed the December
1959-June 1960 contract without an increase. Thereafter the Union for many
months sought monetary increases for the next contract. The parties met and bar-
gained about increases. Even after January 10 and February 28, 1961, when the
Company had taken its position regarding the scope of bargainable subjects, the
Union met with the Company and discussed monetary increases. The Union lowered
its demands on the amount of increases and the Company considered the new pro-
posals. After March 1, 1961, Rutherford continued to discuss the subject of mone-
tary increases with Beauchene. But no agreement was reached by the parties on
monetary matters. If the Company had not engaged in the conduct thatI have found
to be illegal it would appear that the parties would still have been apart on monetary
20J. W. Woodruff, Sr ., d/b/a Atlanta Broadcasting Company, 90 NLRB 808, 819-820
2 'North Carolina Furniture, Inc., 121 NLRB 41, 42.
ALTEX MANUFACTURING CO., INC., ETC. 627
issues. As noted above, they continued monetary discussions after the Company
had injected its own proposals for extensive contract revision.
If, in February 1960, when Rutherford prepared the contract document or at any
time in the year following that date, the Union had presented the contract to the
Company for signature and the Company had signed, the contract provisions, except
for wages, would have been settled for the term of the contract. If the Company
had agreed with Rutherford that the term of the contract was July 1, 1960, to June 30,
1961, the provisions of the contract, excluding wages, would have been in effect until
June 30, 1961. Although the foregoing did not take place it is a reconstruction of
events that would have been more favorable to the Union than what occurred or at
least the legal position of the Union would have been that they had in fact an executed
contract that preserved all nonmonetary provisions of the contract until June 1961.
But even under this favorable reconstruction I do not believe that it could be con-
vincingly asserted that the contract, after June 1961, could not be extensively or
minimally renegotiated on proposals of either or both parties. Consequently, it is
my opinion that the oral understanding reached by Rutherford and Beauchene in
January 1960 that they would confine their negotiations for a new contract to mone-
tary matters was not an understanding in the nature of a perpetuity. The written con-
tract which Rutherford prepared and which he contended reflected the oral under-
standing was not in fact a perpetuity and had as its optimum duration the date of
June 30, 1961.22 I have found on the evidence of the record in this case that Respond-
ent violated Section 8^(a)(5). I have elsewhere stated the basis of this conclusion.
Compliance, if any is undertaken, with my recommendation that the Respondent
bargain with the Union, upon request, will be a matter of compliance under the
facts and circumstances then prevailing.
Upon the basis of the foregoing findings of fact and conclusionary findings, I make
the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of the Act and Respond-
ent's operations came within the jurisdictional standards of the Board.
2. The Union is a labor organization within the meaning of the Act. At all times
material herein the Union has been the exclusive representative for the purposes of
collective bargaining of all production and maintenance employees employed by
Respondent at its Summerville, South Carolina, plant, excluding office clerical
employees, draftsmen, engineering employees, guards, watchmen, and supervisors
as defined in the Act, and the aforesaid unit of employees constitutes a unit appro-
priate for the purposes of collective bargaining within the meaning of Section 9(b)
of the Act.
3. By, on January 10 and on February 28, 1961, repudiating an understanding
with the Union that the terms of the prior contract would remain unchanged in
the new contract to be negotiated and that negotiations would be confined to mone-
tary matters, and by injecting new and extensive proposals for contract revision into
negotiations with the Union for the first time on February 28, 1961, after approxi-
mately 6 months of bargaining confined to monetary matters, Respondent has
refused to bargain within the meaning of the Act, thereby engaging in unfair
labor practices within the meaning of Section 8(a)(1) and (5) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact, conclusionary findings, and con-
clusions of law, and upon the entire record in the case, it is recommended that
the Respondent, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Shopmen's Local Union No. 780 of
the International Association of Bridge, Structural and Ornamental Iron Workers,
AFL-CIO, as the exclusive representative of Respondent's production and main-
tenance employees at its Summerville, South Carolina, plant.
(b) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their rights of self-organization, to form labor organ-
izations, to join or assist Shopmen's Local Union No. 780 of the International
Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO, or any
other labor organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of collective
211 find it unnecessary to decide in this report what the parties may propose in their
bargaining, or when, or otherwise than that the Respondent bargain In good faith. .
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining or other mutual aid or protection, or refrain from any and all such
activities, except to the extent that such right may be affected by a lawful agree-
ment requiring membership in a labor organization as a condition of employment,
as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Upon request, bargain collectively with Shopmen's Local Union No. 780 of
the International Association of Bridge, Structural and Ornamental Iron Workers,
AFL-CIO, as the exclusive representative of Respondent's production and main-
tenance employees at its Summerville South Carolina, plant, with respect to rates
of pay, wages, hours of employment, and other conditions of employment, and, if
an understanding is reached, embody such understanding in a signed agreement.
(b) Post at its plant at Summerville, South Carolina, copies of the notice at-
tached hereto marked "Appendix." Copies of said notice, to be furnished by the
Regional Director for the Eleventh Region, shall, after being duly signed by an
authorized representative of Respondent, be posted immediately upon receipt thereof,
and be maintained by it for a period of 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Eleventh Region, in writing, within
20 days from the date of receipt of this Intermediate Report, what steps the Re-
spondent has taken to comply herewith.
It is further recommended that unless within 20 days from the date of receipt
of this Intermediate Report the Respondent notifies the said Regional Director in
writing that it will comply with the foregoing recommendations, the Board issue
an order requiring the Respondent to take the aforesaid action.
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor Re-
lations Act, as amended, we hereby notify our employees that:
WE WILL, upon request, bargain collectively with Shopmen's Local Union
No. 780, of the International Association of Bridge, Structural and Ornamental
Iron Workers, AFL-CIO, as the exclusive representative of all our employees
in the appropriate bargaining unit described below with respect to rates of
pay, hours of employment, and other conditions of employment, and, if an
understanding is reached, embody such understanding in a signed agreement.
The bargaining unit is:
All production and maintenance employees employed at our Summerville,
South Carolina, plant, excluding office clerical employees, draftsmen, en-
gineering employees, guards, watchmen and supervisors as defined in the
Act.
WE WILL NOT refuse to bargain or in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist Shopmen's Local
Union No. 780, of the International Association of Bridge, Structural and
Ornamental. Iron Workers, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own choosing, or 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 right may be effected 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.
ALTER MANUFACTURING CO., INC., ARTEX CORP., & METAL MASTERS,
INC., DIVISION OF ARNOLD ALTER ALUMINUM 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.