Century Cement Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Oct 1, 1952

100 N.L.R.B. 1323 (N.L.R.B. 1952)

CENTURY CEMENT MANUFACTURING COMPANY, INC. 1323
Certification of Representatives
IT IS HEREBY CERTIFIED that International Association of Machinists,
AFL, has been designated and selected by a majority of the employees
at the Employer's Baraboo, Wisconsin, plant, in the unit found to be
appropriate in paragraph numbered 4 of the Decision and Direction
of Election, as their representative for the purposes of collective bar-
gaining, and that, pursuant to Section 9 (a) of the Act, the said or-
ganization is the exclusive representative of all employees in such unit
for the purposes of collective bargaining with respect to rates of pay,
wages, hours of employment, and other conditions of employment.
MEMBERS HOUSTON and STYLES took no part in the consideration of
the above Supplemental Decision and Certification of Representatives.
CENTURY CEMENT MANUFACTURING COMPANY, INC. and UNITED CE-
MENT, LIME & GYPSUM WORKERS INTERNATIONAL UNION, LOCAL 129,
AFL. Case No. 2-CA-1918. October 1, 1952
Decision and Order,
On January 28, 1952, Trial Examiner Thomas S. Wilson issued his
Intermediate 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. He also found that the Respondent
had not engaged in certain other unfair labor-practices alleged in the
complaint and *recommended dismissal of those allegations. There-
after, the Respondent filed exceptions to the Intermediate Report, and
a supporting brief.
The Board I 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 brief, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the following minor exceptions, additions, and modi-
fications : 2
1 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
[ Members Houston, Murdock , and Styles].
11 We note and correct the following minor inaccuracies in the findings of the Trial
Examiner' s Intermediate Report, none of which affects the validity of his ultimate conclu-
sions nor our concurrence therein : ( 1) The date on page 1330 , line 18, is April 24 , 1951, and
not April 24, 1950 ; ( 2) the number on page 1335 , line 13, is 13 and not 15 ; (3) the date on
page 1336, line 7 , and on page 1340, line 7 , is April 1 , 1951 , rather than April 1, 19450; (4i)
Section 8 ( a) (5) (1) on page 1336, line 7, should read Section 8 ( a) (5) and ( 1) ; (5) the
date on page 1336, Section C, line 12, is September 27 and not September 21 ; (6) Section
8 (a) (3) (1 ) on page 1338 , line 37, should read Section 8 (a) (3) and (1).
100 NLRB No. 223.
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. We agree with the Trial Examiner's finding that the Respondent
refused to bargain with the Union in violation of Section 8 (a) (5)
and (1) of the Act .3
2. We also agree with the Trial Examiner's finding that the Re-
spondent laid off, and refused to reinstate, Frederick T. Adams in
violation of Section 8 (a) (3) and (1) of the Act .4
3. We also agree with the Trial Examiner's findings that by certain
other conduct the Respondent violated Section 8 (a) (1) of the Act,"
with one exception. We disagree with his finding that Snyder's state-
ment to the employees the day after the election-"that the Union
had won the election and that he supposed that the employees were
happy about it but, that he was damn mad and sore, and that he could
meet the Union scale but he did not want people around needling him
about it all the time"-was a violation of Section 8 (a) (1). This
statement contained no promise of benefit or threat of reprisal, and
was therefore protected speech under Section 8 (c) of the Act.
The Remedy
We find it unnecessary to, and therefore do not, find that the Re-
spondent discriminated against Adams in violation of Section 8 (a)
(3) of the Act by failing to give him the usual and customary
Christmas bonus paid to the other employees in 1950. We do find,
however, that Adams was deprived of this bonus as a result of the
discrimination against him, and accordingly that the Respondent
3 Although he dissented in Niles-Bement-Pond Company, 97 NLRB 165, Member Mur-
dock now considers himself bound by the decision in that case , and therefore concurs in
the Trial Examiner's findings that the Christmas bonuses customarily given to the
Respondent 's employees was a bargainable issue , and accordingly that the Respondent's
refusal to bargain on that issue constitutes part of the proof that the Respondent did not
bargain with the Union in good faith.
Contrary to the Trial Examiner's finding, Superintendent Fahey testified that Snyder,
at the September 27 meeting, did promise the employees a wage increase in the spring.
We nevertheless concur in the Trial Examiner 's finding that no such promise was made,
and in any event find , as the Trial Examiner did , that the unilateral wage increase of
April 1, 1951, was granted at the time it was for the purpose of undermining the Union,
and constitutes clear evidence of the Respondent 's bad faith in its negotiations with the
Union.
4 It is true , as pointed out by the Respondent , that Adams' discharge on December 17,
1950, could not have been motivated by his appearance as a member of the union negotia-
tion committee on January 5, 1951. However , the Respondent 's refusal to reinstate
Adams in March 1951 could have been so motivated , and we find , as the Trial Examiner
impliedly did, that the Respondent 's refusal to reinstate Adams was partially motivated
by this display of continued adherence to the Union on the part of Adams
5 The Trial Examiner states that his finding-that both before and after the election
Snyder told %arions employees that, if the Union won the election , he would close the
plant or would reduce the workweek to 5 days per week-is based on undenied testimony.
We have considered all the testimony in this connection , including that which the Respond-
ent contends is a specific denial of his conduct , and we nevertheless concur in the Trial
Examiner 's findings that this conduct was engaged in.
We concur in the Trial Examiner ' s finding that the Respondent 's curtailment of the
wearing of union buttons at the plant was a violation of Section 8 (a) (1). See Republic
Aviation Cot poration v N L R. B , 324 U. S. 793.
CENTURY CEMENT MANUFACTURING COMPANY, INC. 1325
should be ordered to pay Adams the Christmas bonus for 1950 which
he would have received but for the discrimination against him e
Order
Upon the entire record in the case, the National Labor Relations
Board hereby orders that Century Cement Manufacturing Company,
Inc., Rosendale, New York, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Cement, Lime &
Gypsum Workers International Union, Local 129, AFL, as the exclu-
sive representative of all production and maintenance employees of
the Respondent employed at its Rosendale plant, exclusive of execu-
tives, office and clerical employees, and all supervisors as defined in
Section 2 (11) of the Act.
(b) Discouraging membership in United Cement, Lime & Gypsum
Workers International Union, Local 129, AFL, by discriminating in
regard to the hire or tenure of employment of its employees or by
discriminating in regard to any term or condition of employment in
order to discourage membership therein.
(c) In any manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Cement, Lime Gypsum
Workers International Union, Local 129, AFL, or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purposes
of collective bargaining or other mutual aid or protection, or to refrain
therefrom, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with United Cement, Lime
Gypsum Workers International Union, Local 129, AFL, as the
exclusive representative for the employees in the bargaining unit
herein above described with respect to wages, rates of pay, hours of
employment, and other conditions of employment, including the
bonuses usually and customarily paid to the employees.
(b) Offer to Frederick T. Adams immediate and full reinstatement
to his former or substantially equivalent position without prejudice to
his seniority or other rights and privileges, and make him whole for
Only those employees who were laid off in December 1950 did not receive a Christmas
bonus , the employees who were not laid off received the customary Christmas bonus
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any loss of pay he may have suffered by reason of such discrimination
against him in the manner provided in the section of the Intermediate
Report entitled "The Remedy."
(c) Make whole Frederick T. Adams by paying to him the Christ-
mas bonus for 1950 which he would have received but for such dis-
crimination against him.
(d) Post at its Rosendale, New York, plant, copies of the notice
attached hereto and marked "Appendix A."' Copies of said notice,
to be furnished by the Regional Director for the Second Region, shall,
after being duly signed by the Respondent's representative, be posted
by the Respondent, immediately upon receipt thereof and maintained
by it for a period of sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to the employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notice shall not be altered, defaced, or
covered by other material.
(e) Notify the Regional Director for the Second Region, in writing,
within ten (10) days from the date of this Order what steps the Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent discriminated against
Berton Delamater in violation of Section 8 (a) (3) of the Act.
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 in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to join or assist UNITED CEMENT, LIME & GYPSUM WORKERS IN-
TERNATIONAL UNION, LOCAL 129, AFL, or any other labor organi-
zation, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection,
and to refrain from any or all of such activities except to the
extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the Act.
* In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
CENTURY CEMENT MANUFACTURING COMPANY, INC . 1327
WE WILL offer to the employee named below immediate and
full reinstatement to his former or substantially equivalent posi-
tion without prejudice to any seniority or other rights and priv-
ileges previously enjoyed, and make him whole for any loss of
pay suffered as a result of the discrimination.
Frederick T. Adams
WE WILL bargain collectively upon request with the above-
named union as the exclusive representative of all employees in
the bargaining unit described herein with respect to rates of pay,
hours of employment, or 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 excluding execu-
tives, office and clerical employees, and supervisors as defined
in the Act.
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term
or condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
CENTURY CEMENT MANUFACTURING COMPANY, INC.,
. Employer.
By ----------------------------------------------------
(Rep resen to tive ) ( Title)
Dated --------------------
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 and an amended charge filed respectively on April 24, 1951,
and June 13, 1951, by United Cement, Lime & Gypsum Workers International
Union, Local 129, AFL, herein called the Union, the General Counsel of the
National Labor Relations Board, herein called the General Counsel' and the
Board, respectively, through the Board's Regional Director for the Second
Region (New York, New York), issued its complaint dated August 14, 1951,
against Century Cement Manufacturing Company, Inc., herein called the Re-
spondent, alleging that the Respondent had violated Section 8 (a) (1) and (3)
and (5) and Section 2 (6) and (7) of the Labor Management Relations Act
of 1947 (61 Stat. 136), herein called the Act. The complaint, the various charges
' The term specifically includes the counsel appearing for the General Counsel at the
hearing.
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and notice of hearing thereon were all duly served upon the Respondent and the
Union.
r
With respect to the unfair labor practices, the complaint alleged in substance
that the Respondent: (1) Had discharged employees Berton W. Delamater and
Frederic T. Adams because of their union membership or activities in violation
of Section 8 (a) (1) and (3) of the Act; (2) on or about January 5, 1951, and
at all times thereafter, had refused to bargain collectively with the Union as
the exclusive representative of the Respondent's employees in the appropriate
unit in violation of Section 8 (a) (5) of the Act; (3) had by various enumerated
acts interfered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act in violation of Section 8 (a) (1)
of the Act.
The Respondent duly filed its answer wherein it admitted certain allegations
of the complaint but denied the commission of any unfair labor practices and
affirmatively pleaded that it had bargained in good faith with the Union and
that the employees mentioned had been discharged for cause.
Pursuant to notice, a hearing was held at Kingston, New York, on October 15
and 16, 1951, before the undersigned, the duly designated Trial Examiner. The
General Counsel, the Respondent, and the Union were represented by counsel
or representative. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded all
parties All parties waived oral argument at the conclusion of the hearing but
the Respondent filed a brief on November 14. 1931.
Upon the entire-record, and from his observation of the witnesses, the under-
signed makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Century Cement Manufacturing Company, Inc, is, and has been at all times
material hereto, a corporation duly organized under and existing by virtue of the
laws of the State of New York. It has maintained its principal office and place
of business in the town of Rosendale, County of Ulster, and State of New York,
and is now and has been continuously engaged at said plant in the manufacture,
sale, and distribution of cement. During the year ending July 31, 1951, the Re-
spondent, in the course and conduct of its business operations, caused to be
purchased, transferred, and delivered to its plant materials valued at in excess
of $35,000, of which approximately 100 percent was transported to said plant
in interstate commerce from States of the United States other than the State of
New York. During the year ending July 31, 1951, the Respondent, in the course
and conduct of its business operations, caused to be manufactured at its plant
products valued at in excess of $150,000, of which approximately 50 percent was.
transported from said Rosendale plant in interstate commerce to States of the
United States other than the State of New York.
The Respondent admits, and the undersigned finds, that the Respondent is
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Cement, Lime & Gypsum Workers International Union, Local 129, AFL,
is a labor organization admitting to membership employees of the Respondent.
CENTURY' CEMENT MANUFACTURING COMPANY, INC. '1329
III. TIIF UNFAIR LABOR PRACTICES
A. Chronology
Although the Respondent is a corporation, Andrew J Snyder is practically
the sole owner of stock and therefore the real owner of the Respondent Other
top managerial authority is vested in James B Fahey as superintendent, in
Dunbar and Myers as foremen of individual divisions; and in John J. Kelly as
the Respondent's chemist.
The plant of the Respondent is divided into three divisions: (1) the mine;
(2) the lime plant; and (3) the cement plant All told about 45 nien are there
employed. Until September 1950 the employees of the Respondent had always
been unorganized. At the end of each operating season 2 when the cement bins
have been filled, mining, kiln, and manufacturing operations are suspended and
approximately one-third of the employees not needed during the wintertime for
maintenance, repair, or construction, are laid oft until the following spring when
mining operations reopen. At that time the laid-off employees again apply for
work. Except for key employees the Respondent sends no notices to any em-
ployees, as the word that the plant has reopened brings sufficient applicants to
fill Respondent's quota. Approximately 85 percent of those employees laid-off
in the winter season return and are employed in the spring Apparently the
employees selected for layoffs in the winter are chosen by no set rule but rather
at the whim and desire of the superintendent and foreman.
One interesting feature of the employment relationship at the Respondent's
plant was the Respondent's propensity to give its employees bonuses every 3 or
6 months when Snyder considered that business-conditions warranted it. Snyder
was very proud of Respondent's record in this regard. Bonuses had become quite
customary among the employees.
Organizational activity among the Respondent's employees began either in
late August or early September 1950, and by October the Union claimed to rely
resent a majority of the employees.
On September 27, a meeting was held between Snyder and Fahey and six
employees, two of whom came from each of the Respondent's three divisions'
As a result of this meeting, which will be detailed at greater length hereinafter,
the Respondent agreed to and did raise the wages of. its employees from $1
per hour to $1.17 per hour to meet the standard rate paid by up-river cement
plants'
Pursuant to a consent election agreement executed by and between the Re-
spondent and the Union on October 31, 1950, a representation election was con-
2 Due to bad weather a operations cease during the winter except for the shipping of
manufactured cement and necessary maintenance and repairs.
3 At the hearing the Respondent contended that this meeting was arranged by the
employees acting as the representative of the employees and that the Respondent had
nothing to do with the arrangements except to accede to the request of the men However,
the evidence proved that Adams and Oppenheimer had been instructed to attend this
meeting by Foreman Dunbar Superintendent Fahey first testified that he_ sent for two
employees from the mine which he subsequently changed and then testified that he had not
instructed Dunbar to send any employee to this meeting. The Respondent failed to produce
Dunbar to deny having instructed Adams and Oppenheimer to attend the meeting so that
their testimony to that effect stands uncontradicted, nor did the Respondent attempt to
explain the absence of Dunbar. In this view of the record the undersigned finds that the
meeting was arranged by the Respondent although an employee had requested to meet with
Snyder.
4 At the hearing the Geneial Counsel specifically disclaimed any contention that this
wage increase constituted an unfair labor practice.
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ducted by the Board among the employees of the Respondent on November 13,
1950, in order to determine whether or not they desired to be represented in
collective bargaining by the Union. It was admitted by the answer that, as a
result of this election, the Union became the certified representative of the
majority of the employees in the appropriate unit.
About a week before the above-mentioned election, union buttons were dis-
tributed and worn by the employees at the plant. Soon after the appearance
of these buttons the employees were requested and instructed by Foreman
Myers not to wear their buttons at the plant 6
On December 17, 1950, the Respondent laid off 15 employees, of whom Dela-
mater and Adams were 2.
As a result of the certification of the Union as the exclusive representative of
the employees, the Union requested the right to bargain with the Respondent.
Accordingly, meetings were held between Attorney Lloyd LeFever, representing
the Respondent, and Andin Straub, representing the Union, on January 5, March
2, March 27, and April 6, 1951. No agreement was ever reached. The details
of these meetings will be discussed in more detail hereinafter.
On April 24, 1950, the Union filed charges alleging that the Respondent refused
to bargain in good faith in violation of Section 8 (a) (5), together with other
alleged violations of Section 8 (a) (1) and (3).
About the middle of March 1951, Adams and Delamater individually saw
Superintendent Fahey about jobs with the Respondent but were not reemployed.
About March 7, 1951, the Respondent posted the following notice to the
employees :
The management has contemplated for some time and expect to put in
operation (providing government regulations will permit) a merit system
whereby the workers will receive remuneration every three-month's period.
This merit system will be operated and rewarded in proportion to the
initiative, interest and cooperation that the individual worker has shown
in his execution of his duties and work. This will naturally mean some
workers will receive more remuneration than others which will be solely
judged as to the individual's performance.
You will hear more about the plan a little later. This plan has been
under consideration.for the past several months.
THE MANAGEMENT.
Sometime thereafter but still in the month of March 1951, the Respondent
also posted a notice reading as follows :
There will be an increase in wages effective April 1.
This increase has been anticipated for some time and the management
considered doing so upon starting up the plant or as of April 1.
This increase will not effect our previous bulletin announcement of certain
remuneration to those men who are particularly efficient in their work and
cooperate with the management to accomplish better results.
THE MANAGEMENT.
These are the basic facts of this case.
5 At the hearing the Respondent contended that this request was made because of the
fact that the wearing of these buttons caused fights and fisticuffs among the employees.
However, Superintendent Fahey acknowledged that, while there had been arguments
between union and nonunion employees, there had been no fisticuffs or fights.
CENTURY CEMENT MANUFACTURING COMPANY, INC. 1331
B. The refusal to bargain
1. The unit and majority
There being no evidence to the contrary, the undersigned finds in accordance
with the agreement of the Respondent and the Union in the consent election
agreement signed by them on October 31, 1950, that the appropriate unit at
the Respondent's plant consists of all production and maintenance employees,
excluding executives , office and clerical employees , and supervisors as defined in
the Act.
In accordance with the admission in the Respondent 's answer and the results
of the consent election of November 13, 1950, the undersigned further finds that
at all times on and after November 17, 1950, the Union was and now is the
exclusive representative of the employees of the Respondent in the above-found
appropriate unit.
2. The refusal to bargain
After receipt of the Union's request to bargain, Snyder instructed Lloyd R.
LeFever, a director of the Respondent and its attorney : "You take charge of
the affair. I want the least that I can have to do with them," and to try to
work out something to present to him for his approval and signature and that
he did not want to be bothered with "the details."
The first meeting between the parties was held in LeFever's office on January
5, 1951 The Union demanded the reinstatement of employees Cutler and Harbeck
who had been laid off on December 17, 1950, and not reemployed. After some
discussion of this matter LeFever agreed to make the matter known to Snyder.
This "making the matter known to Snyder" became characteristic of this and
the following negotiation meetings. Near the end of the meeting the Union
presented the Respondent with its proposed agreement containing the usual
clauses of such labor agreements : Recognition, seniority, promotions, hours of
work and overtime provisions, holidays, vacations with pay, Christmas bonuses,
second and third shift wage differentials, safety and welfare, a grievance
procedure ending with arbitration, and checkoff among others. At this meeting
there was little, if any, discussion of the terms of the proposed contract.
The next meeting was held on March 2 e At this meeting LeFever for the
Respondent and Straub for the Union, went over the proposed contract provisions.
In practically every instance LeFever stated he "would make the matter known"
to his principal. However, he was agreeable to the recognition clause and, if
the Respondent were given the right to pass upon all union bulletins prior to
posting, to allow the Union the use of the bulletin board at the plant. Otherwise
there were objections from the Respondent to each and every article of the
proposed contract including the commencement and termination dates. Except
for the few innocuous clauses of the proposed contract, the parties were unable to
agree.
Prior to the next meeting of March 27, 1951, LeFever had a conference with
Snyder about the proposed agreement. When told of the main items of the
proposed contract, Snyder said, "They threw the whole book at you, didn't
they? . . . unless you can do something about it, the answer is no." LeFever
described this conference as follows :
9 At the hearing some suggestion was made that this long delay between meetings might
indicate a refusal to bargain on the Respondent 's part but the evidence showed that the
Union was at least equally responsible for the delay.
227260-5-3-vol. 100--85
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. He [Snyder] vi as in my office sometime after I came back from my
vacation in March, some period several days before this meeting of March 27,
and he was emphatic on the provision of seniority; it was on no promotions
and seniority-
A. (continuing) promotions, no; and under hours of work, it was more
satisfactory as far as he was concerned, that the present method of over-
time be carried on Holidays was no; and vacations with pay was no. I
was not able to give him any facts in regard to this schedule that Mr. Straub
referred to as the wage schedule in that contract; and bonuses were no,
because he took pride in that bonuses were a personal matter with him.
He considered it from the angle of business operations, and associations
with the men, who they were and how long he had been acquainted with
them.
As to safety and welfare, the first two paragraphs were no; and as far
as handling complaints and grievances, arbitration was obnoxious to him,
so that was no ; and check off was also no.
That is what I went over with him.
As LeFever acted in accordance with these instructions at the subsequent
negotiation meetings of March 27 and April 6, the results of those meetings
were necessarily negligible. At various times in the course of these meetings,
Straub stated that union security and seniority were the cardinal union principles
contained in the proposed agreement The Respondent refused to accept the
union-shop clause contained in the proposed contract, which it had been explained
to the Respondent's representative was dependent upon an election under
Section 9 (e) of the Act, on the ground that the Respondent was "an open
shop." Seniority was refused by the Respondent on the ground that the Re-
spondent was such a small plant that seniority was not necessary. Promotions
based upon seniority were refused because the Respondent did not believe in
seniority.' The proposed clause granting overtime after 8 hours in any one day
was refused because the law did not require it and the Respondent preferred to
grant overtime for work after 40 hours only as was then being done. Holidays
and vacations with pay were refused because "in the past" the Respondent had
given the employees bonuses. On the other hand the Respondent refused to bar-
gain about Christmas bonuses because, in the words of LeFever, "Snyder took
pride in that bonuses were a personal matter with him," because bonuses were a
". management prerogative," because they were a "gratuity" which the Respond-
ent was under no contractual obligation to pay, and because the question of
bonuses was not a bargainable issue. As arbitration was "obnoxious" to Snyder
the proposed grievances procedure which ended in arbitration was refused by the
Respondent.
The check off was also refused. On none of the above issues did the Respondent
ever offer counterproposals.
At the meeting of March 22, LeFever also informed Straub that the Respondent
would not reinstate Harbeck or Cutler.
At the March 27 meeting Straub requested the Respondent's job classification
and wage schedule for the purposes of assisting him in giving the Respondent the
Union's wage demands as requested by LeFever. After consultation with his prin-
v It is interesting to note from the excerpt of the testimony of LeFever quoted above
that the Respondent itself considered seniority on the question of the giving of bonuses
The evidence further showed that Snyder was in favor of seniority to a limited extent
But the possibilities of an agreement on the question of seniority was not explored because
the Respondent failed to make any counterproposals to the Union on this or any other
point in the proposed contract
CENTURY CEMENT MANUFACTURING COMPANY, INC. 1333
cipal, LeFever refused this demand on the ground that the Respondent had no
such job classification or wage schedule.'
LeFever suggested that the Union prepare its own job classifications and wage
schedules first. This the Union did but, upon presentation to the Respondent on
April 6, it was refused on the ground that the wages were too high.
Just previous to the time when the negotiations were to turn to the question
of the Union's wage demands, the Respondent posted two notices on the bulletin
board ; the first of which informed the employees that the Respondent planned
to institute a "merit system" based upon the "initiative, interest and cooperation"
shown by the employee in the execution of his duties and which, because of the
very basis upon which remuneration was to be granted, would result in uneven
bonuses to the individual employees ; and the second of which announced a wage
increase effective as of April 1, 1951, which also contained this ominous para-
graph : "This increase will not affect our previous bulletin announcement of cer-
tain remuneration to those men who are particularly efficient in their work and
cooperate with the management to accomplish better results."
When at the March 27 meeting Straub objected to this unilateral method of
increasing wages without consultation on notice to the Union, LeFever admitted
that he knew nothing about the proposed wage increase but would "take the mat-
ter up" with Snyder. LeFever did demand to know whether or not the Union
wanted to deprive the employees of this increase. Straub denied any such-intent
but protested against the method by which this increase was being put into effect.
At the April 6 meeting between the parties there were the usual vain discus-
sions of the various contract clauses with the Respondent saying only "no."
One significant thing occurred during this meeting. LeFever asked Straub
if he intended to bargain on behalf of all the employees including those he
understood had recently resigned from the Union Straub made it clear that
the Union was the exclusive representative of the employees. At this meeting
the Union reiterated its demand, made originally on March 27, for the reinstate-
ment of Adams and Delamater. When Straub reiterated his request for job
classifications and wage rates, LeFever stated that the management did not
feel that it was necessary for the Union to have a copy of these rates. At this
point Straub became irritated and accused LeFever of stalling the negotiations
in order to make a bigger fee for himself and demanded that Snyder himself
attend the meetings on the theory that he could work matters out with Snyder
in person. LeFever agreed to take this request, as well as the request for the
reinstatement of Adams and Delamater, back to the management and would
thereafter let Straub know the Respondent's answer. The meeting broke up an
this note
About a week later LeFever telephoned to Straub and informed him that
Snyder did not consider it necessary to sit in on the meeting and would not agree
to the reinstatement of Adams and Delamater. In answer to LeFever's request
for information on this latter point, Snyder had informed him he would not
reinstate Adams or Delamater because of the charges of discrimination which
the Union or the men had threatened to make against him.'
3. Conclusion as to the refusal
"They [the Union] threw the whole book at you, didn't they? ... unless you
can do something about it, the answer is no." This, is Snyder's own words and,
8 No doubt the Respondent was technically accurate in announcing that it had no job
classification and wage schedule set up as such and, thus, could not give the Union a
"copy" thereof But all the data requested by the Union was to be found in the Respond-
ent's payroll
Such charges were not formally made until April 24, 1951.
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
according to his own testimony, was the Respondent's reaction to the Union's
proposed agreement and the instruction given to the Respondent's negotiator. In
accordance with that instruction that negotiator returned to the conference table
and said "No" to practically every union request except for recognition and the
use of the bulletin boards.
Possibly the above-quoted statement is the natural reaction of an employer,
such as Snyder, who had owned and operated a company for a period of 40 years
in a completely personal and paternalistic manner accountable to no one except
himself and any others who might have had an interest in the ownership of
business. For that period of time he had had no contractual obligations or
responsibilities to any of his employees. He hired whom he pleased, he fired
whom he pleased, he paid them what he pleased, and he gave them bonuses if
and when he pleased. The employees existed upon his largess and upon his
"gratuities." This proposed contract, therefore, was the end of an era.
In addition to his own personal reaction to the unionization of his employees
which admittedly he did not like, Snyder was represented in the negotiations by
an attorney who had had no previous experience in labor relations and who,
in turn, was assisted by a fellow attorney who desired to "learn" something
about labor relations. Acting literally within the authority as above given,
LeFever answered "No" to each of the clauses of the proposed union contract
with the exception of the recognition clause which was required by law and to
the clause granting the Union the right to use the bulletin boards which was
further hedged in, at the Respondent's request, by the requirement that the
Respondent must pass upon each notice before it could be posted. LeFever
admittedly made no counterproposals even on the question of seniority of which
Snyder approved and utilized to a limited extent. As Respondent suggested no
compromises, none could result.
Collective bargaining is a "give and take" proposition between two reasonable
parties entering into negotiations with the intent of reaching a mutually satis-
factory agreement. Here, an inexperienced negotiator following the instructions
of his principals literally "negotiates" by saying "no" and makes no effort to
locate a mutually satisfactory position through the method of give and take.
In themselves the failure to arrive at an agreement, although normally ex-
pected in the case where two reasonable parties sit down around the negotiating
table, and the failure to make counterproposals, although usually anticipated in
such situations, are not in and of themselves conclusive as to the refusal to
bargain but are evidence as to the good faith of the negotiations.
Similarly good faith in negotiations requires that a party be represented at
those negotiations by an agent having both the knowledge and the authority
to enter into commitments on behalf of his principal which in all likelihood will
be acceptable to that principal. Here, however, LeFever was by Snyder's own
admission restricted to the word "No" and, in addition, was not even kept
informed as to the intentions of the Respondent to raise wages without con-
sultation with or notice to the Union at the very time when he was supposedly
negotiating wages with that Union. Such restrictions upon a negotiator make
his task impossible. Such limitations placed upon a negotiator are the very
antithesis of bargaining and snake a mockery of the process. These restrictions
constitute strong evidence that Respondent intended the negotiations to fail
and indicate the Respondent's lack of good faith.
When during the course of the negotiations the Union made the reasonable
request that it be furnished the Respondent's job classification and wage
schedule, the Respondent refused. The request of the Union was a reasonable
one for the purpose of intelligently framing its wage demands. The request
CENTURY CEMENT MANUFACTURING COMPANY, INC. 1335
was for information peculiarly in the knowledge of the Respondent and easily
obtainable yby it. The Board and the courts have frequently held that such
requests must be honored and that a refusal to do so constitutes a refusal to
bargain.10
In addition to the above, the Respondent refused to bargain with the Union
regarding the Christmas bonuses on the ground that such bonuses were not
bargainable issues. Where, as here, such bonuses are customarily granted to
the employees, they are to be considered as a part of the employees' wage and,
therefore, a bargainable issue. The Board has recently reaffirmed this well-
established principle.11
As further, and rather conclusive, evidence of the Respondent's lack of good
faith in the conduct of the present negotiations, Snyder granted the employees a
15-cent per hour increase as of April 1, 1951, unbeknownst not only to the Union
but even to his own negotiator sitting at the bargaining table purportedly to bar-
gain over such wage rates. Obviously the granting of a wage increase by the uni-
lateral action of the employer just as the union is about to enter negotiations on
that very subject clearly undermines the authority and prestige of the union
by "proving" to the employees that such concerted activity on their part is
unnecessary as well as futile. In this case this conclusion is emphasized by
the Respondent's announcement of the institution of a "merit system" of bonuses
stressing the fact that the bonuses would be unequal among the various employees
and dependent upon the degree of their "cooperation with the management."
The employees would be justified in, if indeed they were not intended to,
interpret the words "cooperation with management" to mean "anti-union."
After all the employees understood that the Respondent alone was to assess the
degree of "cooperation with management" upon which the amount of their indi-
vidual bonus was to depend. But while these bonuses were thus being held
out as a promise of benefit to the employees, Respondent was refusing, to consider
bonuses as a bargainable issue with the Union.
However, here the Respondent contends that this increase of April 1, 1951,
was merely the fulfillment of the promise made by Snyder to the employees at
the meeting of September 27 to meet the expected wage increase of the up-river
plants in the spring. In this connection it is interesting to note that of the five
witnesses who testified as to the meeting of September 27, only one witness,
Snyder, testified that Snyder said that he "would meet" the anticipated spring
wage increase while Kelly, the Respondent's chemist, testified that Snyder
stated he "would try to match" the spring increase. Neither Superintendent
Fahey nor employees Adams or Oppenheimer heard any such promise. In
view of that testimony and the phraseology of the bulletin announcing the
increase, the undersigned does not believe any such promise was made. The
undersigned further finds that the increase of April 1, 1950, and the promise
of bonuses in return for "cooperation with management" were made by the
Respondent at the time for the purpose of undermining the Union and further
constitutes clear evidence of the Respondent's bad faith in the so-called negotia-
tions.
The attitude of Snyder that the answer is "No" to a union proposal, the strin-
gent limitations laid upon its negotiator by Respondent, the refusal of the Re-`
spondent of the Union's reasonable request for job classification and wage sched-
ule information, the contention that Christmas bonuses were not a bargainable
issue, the announcements of the wage increase of April 1, together with the bulle-
tin announcing the unequal bonuses based upon "cooperation with management,"
1° Cincinnati Steel Casting Co., 86 NLRB 592.
°1 Niles-Bement -Pond Go, 97 NLRB 165.
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are convincing proof that the Respondent entered negotiations with the Union
here with the firm intent of not arriving at any agreement with the Union and that
the Respondent was, at most , giving lip service to the Act by sitting down at the
negotiating table and saying "No" thus making it impossible to arrive at any
mutually acceptable agreement. The 'undersigned is convinced and, therefore,
finds that the Respondent did not bargain with the Union in good faith and
thereby refused to bargain in violation of Section 8 (a) (5) (1) of the Act.
C. The discharges of Adams and Delamater
Adams began his employment with the Respondent in 1945 while Delamater
commenced in 1948. Both of them had been regular employees in the sense
they had never been laid off during the winter seasons in the course of their
employment until December 17, 1950, when both were laid off.
Both men were prone to be absent from work occasionally for Adams frankly
admitted that he enjoyed celebrating the week end while Delamater contended
that his absences were partly due to illness. In the case of Adams, Superin-
tendent Fahey had spoken to him about this propensity once back in the year
1947.n Delamater was reprimanded oftener
Both men joined the Union early in September 1950.
Foreman Dunbar selected Adams as one of the employees from his division to
attend the meeting of September 21 in Snyder's office. Neither Adams nor _
Oppenheimer, the other man selected by Dunbar, had any idea what the meeting
was to be about. As found above when the six employees were asked by Snyder
what was wrong, employee Manisacalca answered that the men wanted more
money. That this idea had been in Snyder's mind sometime prior thereto is
shown by his answer : "That is what I thought. That is just the reason I didn't
give you your bonus. I was figuring on giving a raise." When asked how
much of a raise they wanted, Manisacalca stated, "If you will give us $1.10, we
will forget about the Union and everything." To which Adams said, "You can't
do that. That isn't right. We are 95 percent union men." Whereupon Snyder
said : "Fritz, I'm sorry you said that." Snyder thereupon suggested that, if
the men were organized, he should not have been talking to them. It was
agreed that as the men had come to Snyder, there could be no unfair
labor practices. -As found heretofore, Snyder, after discovering that the up-
river plants were paying 17 cents more per hour, agreed to meet that wage and
said that he thought he might be able to meet the increase anticipated by both
plants in the spring.13 It was finally agreed that the employees would hold a
meeting at 4: 30 that afternoon at the garage to decide whether they would
accept the 17 cents per hour wage increase. The meeting was held and the
increase went into effect.
Prior to the consent election of November 13, the employees had been wearing
union buttons around the plant. Foreman Myers instructed both Adams and
Delamater that Snyder did not want them to wear their buttons. These in-
structions were given to the employees in groups.
12 Superintendent Fahey was asked at the hearing if he had reprimanded Adams about
his absenteeism during the year 1950 . His answer was none too convincing : "I think so,
yes, I did in 1950, I must have " This claim was contrary to his own sworn affidavit.
13 At this point Respondent 's witness, Kelly, introduced some strange testimony when
he testified that , when asked how much of a raise the men wanted , one of the employees
from the lime plant, who was not called as a witness , answered that the employees of the
lime plant "had authorized" them to accept 15 cents. None of the other witnesses testified
to anything comparable to this testimony . It also seems strange that , when men
allegedly were willing to accept 15 cents per hour, Snyder should voluntarily give them
17 cents . The undersigned can put no credence in this testimony by Kelly.
CENTURY CEMENT MANUFACTURING COMPANY, INC. 1337
On December 17, 1950, the usual winter layoff of approximately 15 employees
took place. For the first time in their career Adams and Delamater were among
those laid off. As it happened , Delamater was absent on the day of the layoff
as he had been for the 2 previous days. No one was directly informed that he
had been laid off but, in accordance with custom , those employees who received
two checks realized that they had been laid off. Neither man complained about
his layoff at that time.
Neither man seems to have been exceedingly active or in the forefront of the
union activity although that is probably due to the fact that approximately 95
percent of the employees had signed up in the Union.
When the negotiations meetings began, both Adams and Delamater attended
as part of the union negotiating committee assisting Business Agent Straub.
One evening about the middle or latter part of March 1951, Adams walked
over to the house of Superintendent Fahey to see about his job and met Fahey
and his wife as they were driving out of their driveway . Adams inquired of
Fahey why Fahey had not hired Adams back . Fahey acted surprised that Adams
was not working but stated that the plant was not yet in full operation and
inquired if Adams were working. Adams told Fahey of his construction job
and the fact that he was making $1.90 per hour . When Fahey stated that that
was a better job than he could get with the cement company, Adams answered
that he "just wanted to stick with the boys to help bring the Union in"-to
which Fahey answered , "To Hell with the Union ." Fahey then drove off"
About the same time Delamater also requested reinstatement to his job of
Fahey at the company garage at Lawrenceville . After stating that the plant
was not yet in full operation , Fahey told Delamater that he, Delamater, had
worked for Snyder and not for him so that he should see Snyder about reinstate-
ment. That ended the conversation between Fahey and Delamater . It is un-
disputed that Delamater did not see Snyder about reinstatement.
In the face of this evidence , the Respondent makes two contentions as to each
of these men : ( 1) That neither made application for reinstatement; and (2)
that each was fired because of excessive unexcused absenteeism.
In the case of Adams neither of these contentions is meritorious. Adams
obviously requested reinstatement of Fahey on that evening in March as even
Fahey's conversation recognized . There is no formula or ritual connected with
requesting reinstatement so long as the desire for reinstatement is communi-
cated. Furthermore , if Adams had been discriminatorily laid off December 17,
1950, then no request for reinstatement is necessary . The Respondent 's second
contention is equally lacking in merit Admittedly , Adams was a good, com-
petent workman whose record of absenteeism and drinking had failed to bother
the Respondent for the 5 -year period prior to the time that he joined the Union.
In fact he had been criticized for absenteeism only once in his years of employ-
ment with the Respondent and that time was in 1947 . Adams also gave cor-
roboration of both his workmanship and his regularity by reason of the fact
that he had held his job with the construction company from the time of his
layoff to and including the time of the hearing and, indeed, had earned himself
an increase in pay in that time. Therefore , it appears that both reasons ad-
vanced by the Respondent for the layoff and failure to reinstate Adams are
fallacious.
14 The versions of the two participants in this meeting were very similar although
Fahey testified that Adams remarked that he did not give a "G__ D___ for your job"
and that Adams was "not entirely sober" Also Fahey testified that Adams remarked
that if he did go back to work, he was going to take the place apart and put it
together again to which he, Fahey, answered that it was his job to keep the place
together . Fahey did not deny his remark regarding the Union.
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In his testimony Fahey advanced the theory that Adams did not desire the
job with the cement company when he was receiving $1.90 per hour from the
construction company. On the other band Adams testified that he desired rein-
statement at the Respondent's plant for the reason that he had to travel 40
miles each way to and from his work with the construction company so that the
60-cent wage differential actually was not as large as it looked on paper, es-
pecially when the gratuities or bonuses were counted in.
With these contentions of the Respondent thus disposed of as fallacious, there
then remains only Adams' union activity, his bringing the Union to the fore-
ground at that September 27 meeting, and his attendance as a part of the union
committee at the negotiation meetings. As noted hereinbefore, Snyder, despite
his testimonial disclaimer, was vigorously antiunion. Snyder's willingness to
grant a 17-cent increase at the September 27 meeting was an obvious attempt to
wean the employees away from the Union by promises of benefits. The notices
of the April 1 wage increase and the weighted "merit system" corroborate this
finding. Until Christmastime of 1950, the bonuses had been distributed equally
among all employees. Why the change? At the September 27 meeting Adams
indicated that he was not going to be severed from the Union by the 17-cent in-
crease and he thereafter confirmed that resolve by attending the negotiations
meetings as a part of the union committee.
It should be noted that, although Snyder found seniority to be objectionable in
a union contract, the Respondent used seniority in an attempt to explain why
Adams was laid off on December 17. It was the first time in 5 years of employ-
ment that Adams had ever been laid off. It also was the first time that the
employees laid off were deprived of their Christmas bonuses.15 It is also note-
worthy that the man whose seniority was thus questioned and who was supposed
to have been retained in Adams' place did not even do the same type of work as
Adams. It is also noteworthy that, while the other four men in Adams' packing
crew were paid off at the same time as Adams, three or four of that crew of five
were reinstated for work in 1951.1e
Thus by appearing as a member of the union negotiation committee, Adams
proved to Snyder that neither promises of benefits nor deprivations of bonuses
would coerce him into abandoning the union of his choice.
The undersigned believes that the evidence proves and he, therefore, finds that
the Respondent laid off Frederick T. Adams on December 17, 1950, and refused
to reinstate him to his position in March 1951, for the reason that he belonged to
and was active in the Union in violation of Section 8 (a) (3) (1) of the Act.
The Delamater case is considerably different from that of Adams. Delamater
was not as good a workman nor as regular in attendance as Adams. Apparently
he had originally been employed by Snyder in 1947 because of family friendship.
Admittedly Delamater was absent from work a rather unconscionable amount.
Prior to the election Snyder had told Delamater that he did not want the Union
in the plant as he did not like the idea of anyone telling him how to spend his
money. The day after the consent election Snyder came to Delamater, men-
tioned the fact the Union had won, and in a later part of the same conversation
told Delamater not to talk to the other men in the barn. This apocryphal state-
la Various employees testified at the hearing as to numerous instances of employees
who had been laid off in previous years receiving the same Christmas bonus as those
employees who were retained. The Respondent introduced no evidence on this point.
There is a fair assumption that, if the evidence had not been unfavorable to the Respondent,
that evidence being in the Respondent's sole control would have been produced at the
hearing.
16 On the witness stand Fahey was not sure whether three or four of the original
packing crew had returned to work in 1951.
CENTURY CEMENT MANUFACTURING COMPANY, INC. 1339
went is the only possible indication in the record that Snyder recognized Delama-
ter as the union adherent prior to the December 17 layoff. According to Snyder's
testimony he had determined to discharge Delamater in August at the time he
transferred Delamater back to Fahey's crew-a time prior to the advent of the
Union.
When Delamater requested reinstatement of Fahey in March 1951, Fahey sent
him to Snyder as the man who had employed him. Fahey had authority to
reinstate him if he cared to. As a matter of fact Delamater had been working
in his crew since August so that Fahey was his supervisor and, therefore, the
man to see for reinstatement. According to the Respondent's evidence Snyder
and Fahey had talked the Delamater matter over prior to that time and Fahey
knew that Snyder would not rehire Delamater. This lack of candor on the part
of Fahey gives pause to one considering the merits of the discharge of Delamater.
Respondent's contention that Delamater did not reapply because of his failure
to see Snyder is erroneous in the Delamater case as it was in the Adams case.
Delamater attended the negotiations sessions as a union observer but so far
as the record shows this was the first time that the Respondent knew that Dela-
mater was a union member.
Although the circumstances surrounding the discharge of Delamater are highly
suspicious, the undersigned believes, and therefore finds from the record of
this case, that the General Counsel fails to make out a prima facie case in favor
of Delamater because of the lack of proof of knowledge of Delamater' s union
membership prior to his discharge and will accordingly recommend that the
Delamater case be dismissed.
D. Interference, restraint, and coercion
The General Counsel introduced in evidence at the hearing a letter requesting
all the Respondent's employees to vote in the consent election of November 17,
1950, signed and distributed to the employees by Snyder. Snyder on the day
before the consent election made a speech of like tenor to the assembled em-
ployees in which he urged them strongly to vote in order that their true pref-
erence might be recorded. The undersigned is unable to find either threats,
promises of benefits, or anything else improper in either the letter or the speech
.and thus finds that the Respondent committed no unfair labor practice thereby.
It has been found heretofore that the Respondent requested or ordered the
union employees not to wear their union buttons at the plant. Under the cir-
cumstances disclosed hereinbefore, this was a coercive act against the Union and
the union membership and thus a violation of Section 8 (a) (1) of the Act.
There is also undenied testimony 14 that' both before and after the election
Snyder told various employees that if the Union won the election, he would close
the plant or would reduce the workweek to 5 days per week. This threat in-
tended to coerce the employees to abandon their union membership is expressly
excluded from the provisions of the free speech section of the Act and becomes
a violation of Section 8 (a) (1) of the Act.
The day after the election Snyder made another speech to the assembled em-
ployees and he stated that the Union had won the election and that he supposed
the employees were happy about it but that he was "damn mad and sore," and
that he could meet the union scale but he did not want people around needling
him about it all the time. On the same day he reiterated his threat to reduce
the work to a 5-day workweek. Also on the same day he accused E. Nielson, an
1
17 Snyder did deny generally that he ever threatened any of his employees with threats
of reprisal.
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee of the Respondent since 1925 , of having gone to Catskill toa get the union
organizer and added : "I have a good mind to fire you." Obviously all these
things tended to coerce the employees to abandon their membership in the Union
and thus violated Section 8 ( a) (1) of the Act.
In addition in the early part of March 1951, just as the Union was again
bargaining about wage rates with the Respondent at the bargaining table, the
Respondent posted notices of a wage raise to go into effect on April 1, 1950, and
of the institution of a "merit system " of bonus payments to employees who are
efficient at their work and who "cooperated with management."
The first of these, namely the wage increase , was made without notice to or
consultation with the Union then supposedly negotiating wage rates among other
things. This unilateral notice of a wage increase conspicuously granted without
consultation with the Union tended to undermine the effectiveness of the Union
and to induce the employees to withdraw their membership therefrom.
As has been found many times by both the courts and the Board , such uni-
lateral action by an employer constitutes both an attempt to discourage union
membership and activities as well as evidence of a refusal to bargain with a
union. Coming at a time when it did and under the circumstances, the under-
signed is convinced and, therefore , finds that such unilateral wage increase of
April 1 , 1951, constituted a violation of Section 8 (a) (1) of the Act.
The merit system institution was another obvious attempt to induce the em-
ployees to abandon their union membership and activities by promises of benefits
if they would "cooperate with management ." The stress laid upon the fact that
thereafter the bonuses would be unequal among the employees due in large part
to its vague and unilaterally determined factor of "cooperation with manage-
ment" was an obvious attempt to show the employees that if they cooperated
with the management by eliminating the Union , their bonuses would be larger.
Thus this so-called "merit system " was, in fact , designed to discourage member-
ship in the Union and is thus a violation of Section 8 (a) (1) of the Act.
Therefore, the undersigned finds that by the various enumerated methods
above outlined , the Respondent attempted to discourage union membership in
violation of Section 8 (a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent as set forth in section III, above, occurring
in connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
undersigned will recommend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent on December 17, 1950, discriminated in
regard to hire and tenure of employment of Frederick T. Adams by discharging
him and refusing to reinstate him in March 1951. The undersigned will there-
fore recommend that the Respondent offer to Frederick T. Adams immediate and
full reinstatement to his former or substantially equivalent position without
prejudice to his seniority or other rights and privileges and make him whole for
any loss of pay he may have suffered by reason of such discrimination by pay-
ment to him of a sum of money equal to that which he would have earned as
CENTURY CEMENT MANUFACTURING COMPANY, INC. 1341
wages from December 17, 1950, the date of his discriminatory discharge, to the
date of the offer of reinstatement less his net earnings during such period in
accordance with the formula set forth in F. W. Woolworth Company, 90
NLRB 289. - '
In addition , having found that the Respondent discriminated in the conditions
of employment of Frederick T. Adams in order to discourage membership in
the Union by failing to give him the usual and customary Christmas bonuses
paid to the other employees , the undersigned will recommend that the Respondent
pay to Frederick T. Adams the Christmas bonus for 1950 which he would have
received but for the discrimination against him.
Having found that the Respondent on January 5, 1951, and at all times there-
after, refused to bargain collectively with the Union as the exclusive represen-
tative of its employees in the appropriate unit, it will be recommended that the
Respondent , upon request , bargain collectively with the Union in respect to
wages, hours of employment , and conditions of employment , and all other
matters as required by the Act including the bonuses customarily and usually
given by the Respondent.
It has also been found that the Respondent by various acts, interfered with,
restrained , and coerced its employees in the exercise of the rights guaranteed
by the Act . It will , therefore, be recommended that the Respondent cease and
desist therefrom.
Upon the consideration of the record as a whole , the undersigned is convinced
that the Respondent's conduct in employing the many unfair labor practice
tactics it did in order to evade its duty to bargain with the Union and to prevent
the unionization of its employees , indicates an attitude of opposition to the
purposes of the Act generally . In order, therefore , to make effective the inter-
dependent guarantee of Section 7 of the Act , thereby minimizing industrial strife
which burdens and obstructs commerce, and thus effectuate the policies of the
Act, it will be recommended that the Respondent cease and desist in any manner
infringing upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record,
the undersigned makes the following :
CONCLUSIONS OF LAW
1. United Cement , Lime & Gypsum Workers International Union, Local 129,
AFL, is a labor organization within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees of the Respondent employed
at its Rosendale plant, exclusive of executives , office and clerical employees, and
all supervisors as defined in Section 2 (11) of the Act, constitute a unit
appropriate for the purposes of collective bargaining within the meaning of
Section 9 ( b) of the Act.
3. United Cement , Lime & Gypsum Workers International Union, Local 129,
AFL, was on January 5 , 1951, and at all times material thereafter has been, and
now is, the exclusive representative of all the employees in the above -described
unit for the purposes of collective bargaining within the meaning of Section 9 (a)
of the Act.
4. By refusing on January 5, 1951, and at all times thereafter, to bargain
with United Cement, Lime & Gypsum Workers International Union, Local 129,
AFL, as the exclusive representative of the employees in the above -described
unit, the Respondent has engaged in and is engaging in unfair labor practices
affecting commerce within the meaning of Section 8 ( a) (5) of the Act
5. By discriminating in regard to the hire and tenure of employment and in
the terms and conditions of employment of Frederick T. Adams by discharging
•
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him on December 17, 1950, and by refusing to pay him the usual and customary
Christmas bonus, thereby discouraging membership in United Cement, Lime &
Gypsum Workers International Union, Local 129, AFL, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) and (1) of the Act.
6. By interfering with, restraining , and coercing the employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
8. The Respondent did not commit any unfair labor practice by discharging
Berton Delamater on December 17, 1950.
[Recommendations omitted from publication in this volume.]
INGERSOLL RAND COMPANY 1 and INTERNATIONAL PRINTING PRESSMEN
AND ASSISTANTS UNION OF NORTH AMERICA, AFL, PETITIONER. Came
No. 4-RC-1578. October 1, 19,52
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Harold Kowal, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Houston, Styles, and Peterson].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner requests a unit comprising pressmen, compositors,
lockup men, bindery workers, folding machine and cutting machine
operators, cuts attendants, proofreaders, janitors, working foremen,
and trucker-oiler-stitcher setup men, all employed in the Employer's
print shop, and storekeepers and stores attendants employed in the
advertising department storeroom, at the Employer's Phillipsburg,
New Jersey, plant. The Employer contends that the unit sought is
1 The name of the Employer appears as amended at the hearing.
100 NLRB No. 213.