F. A. Reynolds Co., Inc.,

National Labor Relations Board - Board Decisions

Oct 29, 1968

173 N.L.R.B. 418 (N.L.R.B. 1968)

418 DECISION OF NATIONAL LABOR RELATIONS BOARD
F. A. Reynolds Co., Inc ., and International Union of
Electrical , Radio and Machine Workers, AFL-
CIO. Cases 16-CA-3143 and 16-CA-3241
shall dismiss the above-mentioned 8(a)(1) allegations
of the complaint
October 29, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On June 25, 1968, Trial Examiner George Turitz
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. The Trial Examiner further
found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint
Thereafter, Respondent filed exceptions to the Deci-
sion and a supporting brief
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, . the
National Labor Relations Board has delegated its
powers in connection with this case to a three-mem-
ber panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed The rulings are
hereby affirmed The Board has considered the Trial
Examiner's Decision, the exceptions' and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner except as herein modified.
-The Trial Examiner found, and we agree, that
Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to bargain with the Union. However,
we do not adopt the Trial Examiner's finding that
Respondent violated Section 8(a)(1) in other respects
The isolated nature of Supervisor Lambert's interro-
gation of employee Rudy Vasquez concerning union
membership occurring within the framework of an
established bargaining relationship does not warrant
an 8(a)(1) finding. With regard to the Trial Exam-
iner's finding that the warning notice received by Leal
was in reprisal for his filing a grievance, there is no
record evidence showing that Respondent discouraged
the filing of grievances by employees or that it ever
refused to process a grievance In fact, the record
discloses that numerous grievances were filed under
the grievance procedure provided for in the contract.
Further, Respondent had orally stated to Leal the
previous week in the criticism now reduced to
writing. Under these circumstances, we cannot con-
clude that the notice was in reprisal for his grievance
activity, and find that Respondent did not thereby
violate Section 8(a)(1) of the Act. Accordingly, we
173 NLRB No. 59
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, as modified
herein, and hereby orders that Respondent, F. A.
Reynolds Co., Inc., Abilene, Texas, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as so modified
1. Delete paragraphs 1(c), 1(d), and 2(b) of the
Trial Examiner's Recommended Order.
2. Delete the second, third, and fourth indented
paragraphs of the Notice attached to the Trial
Examiner's Decision.
IT IS HEREBY ]FURTHER ORDERED that the com-
plaint be, and it hereby is, dismissed, insofar as it
alleges violations not found herein.
I Respondent excepts to the granting by the Trial Examiner of the
General Counsel's motion to amend the complaint so as to allege that
commencing on or about November 17, 1967, Respondent violated
Section 8(a)(5) by refusing to meet with the Union The record
discloses that the motion to amend was made after General Counsel
completed its case in chief However, so as not to prejudice any rights of
Respondent, the General Counsel recommended that Respondent be
granted sufficient time to prepare and answer the amended complaint.
The Trial Examiner offered to postpone the hearing or grant Re-
spondent an opportunity to review the transcript after the close of the
hearing in order to determine whether or not it wished to reopen the
record for the purposes of introducing additional testimony concerning
matters covered by the amendment At the conclusion of the hearing,
Respondent indicated a desire to have an opportunity to review the
transcript so as to decide whether or not it wished to reopen the record
No motion has been made to reopen the record Under these
circumstances , we find that Respondent was not prejudiced by the
amendment to the complaint
TRIAL EXAMINER'S DECISION
GEORGE TURITZ, Trial Examiner International Union of
Electrical, Radio & Machine Workers, AFL-CIO, herein called
the Union, filed a charge in Case 16-CA-3143 on October 31,
1967, and filed a charge and an amended charge in Case
16-CA-3241 on March 7 and March 25, 1968, respectively,
alleging that F A Reynolds Co , Inc., herein called Re-
spondent and, at times, the Company, has engaged in and is
engaging in certain unfair labor practices as set forth and
defined in the National Labor Relations Act, as amended,
herein called the Act Said charges were served upon Re-
spondent on October 31, 1967, and March 7 and 25, 1968,
respectively On January 31, 1968, the General Counsel of the
National Labor Relations Board, herein called the Board,
through the Regional Director for Region 16, issued a
complaint, and on April 3, 1968, issued an order consolidating
cases, amended complaint and notice of hearing, against
Respondent. Respondent filed its answer in which it denied all
allegations of unfair labor practices A hearing on the
Complaint was held before the Trial Examiner named above in
Abilene, Texas, on April 9 through 12, 1968 The General
F. A REYNOLDS CO., INC 419
Counsel and Respondent were represented by counsel at the
hearing and the Charging Party by an international representa-
tive who, however, participated to a limited extent except as a
witness The General Counsel and Respondent have filed briefs
with the Trial Examiner
Upon the entire record, and from his observation of the
witnesses, the Trial Examiner makes the following
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent, F A Reynolds Co , Inc., is a Texas corpora-
tion having its principal office and place of business in Abilene,
Texas, where it is engaged in the manufacture and repair of
wind instruments It is a wholly owned subsidiary of Chicago
Musical Instruments Company. Respondent, in the course and
conduct of its operations at the Abilene plant, annually
manufactures, sells and distributes products valued at in excess
of $500,000, of which products valued at in excess of $50,000
are shipped in interstate commerce directly to persons located
outside the State of Texas
It is found that Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act
ances were rejected, Leal forthwith handed Wilson a written
grievance Collier, Respondent's personnel director, who knew
of the conference in advance, was outside the door with a
written notice of warning in his hand. When he had ascertained
that Leal had submitted the written grievance, he gave Wilson
the warning notice, which stated-'
To John Leal
It has come to our attention on August 30, 1967 you
committed the following violation(s) of our established
rules of conduct
A review of your work performance reveals that your
production is below an acceptable level Since you have
been informed verbally of this condition and have agreed
you are naturally slow, it is essential that you understand
that your work performance must improve to an acceptable
level.
You are hereby advised that this Warning Notice has
been given you so that you may know such action cannot
be tolerated, and that any further violation of Company
rules will result in appropriate disciplinary action.
B. D. Collier Verbon C Wilson
Witness Supervisor
I hereby certify that I have received a copy of the above
warning notice
II THE LABOR ORGANIZATION INVOLVED
International Union of Electrical Radio and Machine
Workers, AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
The principal issues litigated at the hearing were whether
Respondent unilaterally changed established conditions of
employment, and whether the negotiations between Re-
spondent and the Union reached an impasse justifying such
unilateral changes, if made, and justifying Respondent's refusal
to continue meeting with the Union unless the Union first
submitted new proposals Also litigated were issues of interro-
gation and other coercive conduct of Respondent
A Interrogation and Other Interference,
Restraint and Coercion
1 Leal's reprimand
John Leal had worked for Respondent about 2 years and
was the Union's chief steward, participating in the processing
of all grievances In the late part of August 1967 Leal
approached his supervisor, Wilson, about a merit increase but
was told that his work was too slow. On August 29, either
during the above conversation or subsequently, Leal orally
submitted to Wilson a grievance that he had been discrimina-
torily denied a merit increase because of his race and his union
activities. The next day Wilson summoned Leal to the office
and told him that Respondent denied any violation of the
contract and that the grievance could be dropped at that point
or carried further. As frequently happened when oral griev-
Date Signature of Employee
Leal testified that Wilson handed him the notice with the
remark that since Leal had filed the grievance alleging
discrimination, he had no other choice Wilson testified that he
had spoken to Leal about his slow production approximately a
week before the grievance was filed, that he had informed
Respondent's president, Caldwell, of the occurrence, and
Caldwell had instructed him "to put it in writing," and that he
had thereupon given the information to Collier, the personnel
director, for hum to prepare such writing Collier testified that
Wilson requested a written warning for Leal and that it usually
took it 2 or 3 days or longer to get one processed. He testified,
further
About the time I got this wntten warning typed up and
approved by Mr. Caldwell, I was informed by Mr
Verbon Wilson, that John was-had filed a grievance In
order to kill two birds with one stone, or save time I
suggested to hum that when he gives the answer to the
grievance we could present the written warning to him at
that time, and that's the way it happened . .
However, that was not how it happened The warning notice
was not given with the answer to the oral grievance but was
issued only after the written grievance had been delivered to
Wilson by Leal Nor does the Trial Examiner credit Collier's
testimony that he did not learn of the grievance until "about
the time" the warning notice, which bears the date August 30,
had been typed up and approved. The problem of Leal's slow
production had allegedly been pending before higher authori-
ty, and as other testimony establishes that Wilson kept
Caldwell and Collier in close touch with day-to-day happenings
in his department, it must be inferred that they had knowledge
prior to the typing and approval of the warning notice that the
August 29 oral grievance involving the pending problem had
1 General Counsel's Exhibit 15
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been submitted The August 30 date becomes even more
significant if weight is given to the wording of the warning
notice, i e , "it has come to our attention on August 30 "
(Emphasis supplied ) This is at complete variance with Wilson's
testimony that Caldwell instructed him to "write up" Leal's
shortcomings a week before the grievance was filed The Trial
Examiner credits Leal's account of the circumstances under
which the warning notice was issued It is found that
Respondent issued the warning notice to Leal in reprisal for
filing a written grievance and in order to discourage employees
from filing grievances
The filing of an individual grievance under a collective-
bargaining agreement is a right protected by Section 7. See
Interboro Contractors Inc, 157 NLRB 1295, 1298, enfd. 388
F 2d 495 (C A 2). In the absence of bad faith it is not material
whether or not Leal's grievance had merit. See Mushroom
Transportation Co., Inc, 142 NLRB 1150, 1158, reversed on
other grounds 330 F 2d 683 (C A 3), Socony Mobil Oil
Company Inc, 153 NLRB 1244. As the warning notice was a
form of discipline and contained a threat of further discipline,
it is found that by issuing it Respondent violated Section
8(a)(1) of the Act.
2 Interrogation
Kerry Grider testified that his supervisor, Verbon Wilson,
remarked to him, "I don't know if this is true or not, but I
heard you . [are] going to join the Union," to which Grider
replied, "Yes, my intentions are " Grider placed the conversa-
tion at 2 or 3 weeks to 2 months after his probation, which
ended about May 1, a date barely within the 6-month period
prior to October 31, 1967, when the charge was filed. Wilson
testified that Grider had asked him what the Company thought
of his joining the Union, to which he had replied that it made
no difference to him. He placed the conversation during
Grider's probation The Trial Examiner would credit Grider's
version of the substance of the conversation, since he gave the
impression of sincerity and of trying to be truthful. However,
such credit cannot be given to his testimony as to the time of
the conversation, he displayed a poor recollection of chrono-
logy The conversation, according to Grider's version, would
have occurred prior to his joining the Union, a date which
presumably could have been fixed by documentary evidence
available to the General Counsel In the absence of explanation
for the failure to produce such evidence, it is found that the
General Counsel has failed to prove by a preponderance of the
evidence that the incident occurred within the statutory period
of limitations
Rudy Vasquez, the leadman of raggers in the Finishing
Department (Department 50), testified that about 5 or 6
months before the hearing, which would be in about October
or November 1967, his supervisor, Lambert, asked him if he
knew that Jimmy Stokes, another leadman, had joined the
Union, adding that Stokes was crazy for doing so He also
testified that Lambert then asked him if he had joined, to
which he replied, "No, not yet." Lambert's testimony with
respect to the alleged conversation was as follows.
Q. Have you ever inquired of Rudy Vasquez as to his
intent, or whether he planned to join the Union?
A No, I never have
Respondent contended that Vasquez was in any event a
supervisor so that no violation could have occurred such as is
alleged in the Complaint The supervisory status of leadmen
was litigated in Case No 16-RC-4108, the certification in
which is alleged in the Complaint as the basis for the Union's
status as bargaining representative and the Regional Director
found that the various leadmen, including those in the
Finishing Department, were not supervisors They were in-
cluded in the unit, and no request for review was filed
Respondent in correspondence with the Union before and
after the negotiations included Vasquez among the "unit
employees."2 Lambert's testimony as to the thoroughness
with which he made his own investigation as to the compe-
tence of employees Vasquez recommended against keeping was
in complete contradiction of his ready response, to counsel's
leading question, that he relied "principally" upon Vasquez'
recommendations. So far as direction of work is concerned,
the evidence establishes that Vasquez' participation was
routine, and he was severely reprimanded when, apparently to
favor a friend, he departed from routine in making an
assignment. In view of the Regional Director's finding, the
actions of the parties under the contract with respect to
Vasquez, the lack of effectiveness of his recommendations as
to retaining employees, and the routine nature of his direction
of work, it is found that Vasquez was not a supervisor
Respondent attacked Vasquez' credibility on the basis of
his denial on the stand that he had been questioned by
Respondent's officials about certain domestic problems in-
volving himself and a female employee, and about his conduct
towards other female employees These questions were em-
barassing in nature and were not material to the issues of the
case Without condoning Vasquez' answers, the Trial Examiner
does not find that they destroyed his credibility.3 His account
of his conversation with Lambert was most convincing and the
Trial Examiner finds that it did take place as he testified
Lambert gave Vasquez no valid reason for his question, nor
did he assure Vasquez that there would be no reprisals if he
indicated that he had joined the Union. See Struksnes
Construction Company Inc., 165 NLRB No. 1062 The Union
had been certified, and the parties were in the middle of a
1-year contract, Respondent could not legitimately have been
trying to ascertain anything about its obligation to bargain
Lambert's comment about Stokes indicated, rather, that he
was trying to find out whether another leadman was "crazy"
enough to risk alienating Respondent by joining the Union.
Implicit also was the threat that such conduct would be duly
taken into account by Respondent in a manner that would
affect Vasquez' future with the Company. It is found that by
Lambert's question and statement to Vasquez Respondent
violated Section 8(axl) of the Act
3 Promise of benefit
During the October 3 bargaining session, discussed below,
while the Union's proposal to eliminate merit increases was
under discussion, Bernice Overall, an employee-member of the
bargaining committee, in response to one of the Company's
arguments, remarked that she guessed that the Company did
2 General Counsel 's Exhibits 12, 13, and 52 Union was responsible for some of the incidents , so that resentment
3 Respondent contends that resentment because of these incidents would have been directed both ways
provided a motivation for Vasquez to answer falsely However, the
F. A. REYNOLDS CO., INC.
not like her very well, since she had not received a merit
increase. Collier, Respondent's personnel director, testified
that his reply, addressed to the entire committee, was. "I
believe if you will look at the employees' handbook that
was in effect prior to the Union ... you will find that merit
reviews were provided for which in some instances is faster
than the current contract calls for s4 Collier gave the fullest
testimony of any witness as to what had occurred at the
various bargaining sessions and he impressed the Trial Exam-
iner as having a good recollection, aided at times by notes
taken at the meeting, of the nature of the discussions, and as
having testified truthfully about them The Trial Examiner
credits his version of the incident over that of Overall It is
found that Collier's statement was appropriate discussion of
the Union's proposal and of Overall's remark, and that it did
not constitute or imply a promise of benefit.'
B. The Refusal to Bargain
1 Unit and majority
On June 17, 1966, following a secret-ballot election in Case
16-RC-4108, the Union was certified as the bargaining repre-
sentative of the Respondent's employees in the following
appropriate unit
All production and maintenance employees at the Em-
ployer's Abilene, Texas, plant, including shipping and
delivery employees, janitors, leadladies, leadmen, section
foreman Pete Barrera, Foreman Jimmy Stokes, and Fore-
man Robert Saldana, but excluding office clerical em-
ployees, guards, watchmen, professional employees, and
supervisors as defined in the Act
Pete Barrera was section foreman in the mounting department,
Jimmy Stokes was foreman over buffing, and Robert Saldana
was foreman over lacquering On October 31, 1966, Re-
spondent and the Union entered into a coll ective -bargaining
agreement which was to expire on October 31, 1967, unless
automatically renewed pursuant to the terms of the agreement.
Both parties wrote letters electing to terminate the contract at
its expiration, and later each gave the "specific" 5-day notice
of termination required to prevent the contract from con-
tinuing in effect thereafter. On January 8, 1968, in Case
16-RD-429 a petition for decertification of the Union was
filed, which was dismissed on April 4, 1968, apparently on the
basis of the pendency of the present case. It is found that the
Union, at all times material, was, and still is, the exclusive
representative of all employees in the appropriate unit for the
purpose of collective bargaining
2 The refusal to meet
The parties met seven times, namely, September 18,
October 2, 3, 16, 17, and 30, and November 17, all in 1967.
The Company's chief spokesman was Donald Rea, a consultant
in labor relations who traveled from his office in Los Angeles
for the various meetings. The Union's representatives were
4 The handbook, Respondent's Exhibit 5, provided for merit reviews
and for increases "as merited " as follows- One 30 days after hire, then
four at 90-day intervals , and then every 6 months . It also provided for
special reviews at any time when the employees showed exceptional
progress. The contract, General Counsel's Exhibit 2, provided for
regular periodic increases to, and then within, rate ranges, with the right
421
Dolan and Javior, two of its officials; they were accompanied
by an employee committee. The Company repeatedly re-
quested that meetings start in the morning but, except for
those of October 3 and November 17, the Union refused unless
Respondent would pay the employee-members of its nego-
tiating team for their time, which Respondent declined to do
The Union offered to extend meetings into the night, but the
Company refused. The meetings, except for the one held on
October 3, were of short duration and the total time spent at
the first six sessions was not more than 15 hours. At the
seventh session the Mediator spent a total of 1'6 hours in
separate sessions with the parties. The record does not
specifically show how much time was spent in joint sessions
but, as the parties for the most part merely restated their prior
positions and arguments without real discussion, it is inferred
that all proceedings on November 17 lasted not more than 2if
hours. All sessions, except for the one held on October 2, were
terminated by mutual consent.
In the initial stages of the negotiations the Union submitted
15, and the Company 21, proposed changes in the old
contract 6 At various times during the negotiations some
proposals were withdrawn or modified. Among those with-
drawn were the Company's proposals for abolition of daily
overtime, for the Union to lose its bargaining status if any
member engaged in a strike, and that any additional increase in
insurance premiums be borne by employees or the benefits
reduced, and the Union's proposals for more generous in-
surance, double time for some overtime, payment to em-
ployees for working time spent in negotiations, an incentive
system, halving the training time for each job, and for
elimination of merit increases
The sixth conference, held on October 30, was attended by
a Federal Mediator. He interrupted an attempt to discuss issues
and, in accordance with what he described as his practice, first
spoke to the parties separately. A joint conference was then
held at which the Company presented what it called its "best
and final offer." The offer was not described during the
hearing. The Mediator stated that the Company and Union
were both firm in their positions, that he saw no movement,
that he felt that he had failed to bring about an agreement, and
that he saw no point in calling another meeting. This last
statement upset the union representatives, who insisted upon
scheduling another meeting Rea, the Company's chief nego-
tiator, refused and told them that if the Union's position
changed, they should contact the Mediator to arrange another
meeting.
On November 17 the seventh and final conference was held
It had been initiated by the Union. The Mediator delivered to
the Company a letter from the Union setting forth the Union's
current position, and he pointed out the issues on which the
Union was firm. The Company, in turn, set forth the issues on
which it was firm. After spending some time with each of the
parties separately, the Mediator reconvened a joint conference.
Rea read off the proposals the Company insisted upon and
stated that this was the Company's best and final offer. The
Company's prior wage offer was improved by providing for an
reserved to the Company to pay higher rates in recognition of
exceptional skill and ability
5 Distinguish L C. Cassidy and Son, Inc., 171 NLRB No . 136, where
a statement was made which was prospective and which indicated that
the employees would benefit if they rejected the Union.
6 General Counsel 's Exhibits 6 and 8
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
increase of all range rates by 10 cents per hour instead of so
increasing only the top of each range, and for an additional
5 cents per hour at the top of each range on April 1, 1968.
The record does not disclose in what other respect, if any, the
Company's November 17 offer differed from its offer of
October 30.
At the end of the November 17 conference the following
issues remained unresolved (1) Checkoff Respondent insisted
upon complete abolition of the checkoff The Union insisted
upon its retention and upon making it irrevocable for yearly
periods. Under the expired contract it had been revocable at
any time (2) Overtime Respondent insisted that the contract
expressly provide that employees could be required to work
overtime, at the same time maintaining that that was the
situation under the expired contract even without such a
provision The Union maintained that overtime was voluntary
under the old contract and insisted on keeping it that way (3)
Seniority The Company insisted on retention of the expired
contract's provisions, plus (a) a provision giving it the
authority to extend new employees' probation an additional
30 days, and (b) a provision giving it the right to terminate an
employee's seniority because of absence for two working days
without notice, deleting the exception in the expired con-
tract, . "unless circumstances make it impossible for the
employee to notify the company " The Union did not agree It
insisted upon the seniority clause contained in the contract of
F E Olds, an affiliated company, which provided for
plantwide seniority rather than departmental seniority, as
under the expired contract (4) Holidays The Union insisted
upon, and the Company refused, one additional holiday (5)
Wages The Company offered to increase all rates within ranges
10 cents per hour at the time of agreement and to add 5 cents
per hour more at the top of all rate ranges on April 1, 1968
The Union demanded an increase of 30 cents per hour across
the board. (6) Cleanup time The Union demanded two
5-minute cleanup periods for the buffing and sanding room;
Respondent rejected the proposal (7) Grievance Procedure
The Company insisted on abolishing, and the Union insisted on
retaining, the provision in the expired contract that grievance-
committee members not lose pay for time spent at "Step III
meetings and beyond."
At the joint conference on November 17 the Mediator
proposed to the Union that the Company's offer be placed
before the membership for them to vote on by secret ballot.
The Union rejected the Company's offer but entered into
discussion with the Mediator as to the appropriateness of his
suggestion for the secret ballot. Rea interrupted their dis-
cussion to ask whether the Union would do what had been
suggested. Dolan told Rea, with profanity, that it was none of
his business.
On November 30 Rea wrote to the Union' that Respondent
had been informed that the employees had rejected the
Company's "best and final offer" by a vote of 100 percent and
that, "It is now apparent that an impasse does exist " He
stated, further, that he assumed that the Union would not
object to the Company placing its last wage offer into effect
and that the Company would do so if the Union did not state
such objection The letter concluded. "A copy of this letter
will be posted on our client's bulletin board, as well as a copy
7 Respondent's Exhibit 8
8 General Counsel's Exhibit 32.
9 This was stated in a letter from the Mediator to Respondent and
the Union, General Counsel's Exhibit 31, which Respondent received on
of your reply " On December 4 Javior sent Rea a telegram
rejecting the proposal' and adding, "Any wage settlement
during these negotiations must be made retroactive to October
31, 1967." The telegram concluded "Our suggestion is that the
company meet immediately with the IUE for the purpose of
completing negotiations "
The Union asked the Mediator to schedule a joint con-
ference.' Rea, however, advised the Mediator that in his
opinion such a conference would not result in any change in
the Company's last offer. At Rea's request the Mediator asked
the Union to submit an offer to the Company in writing
through the Mediator's office, as a complete offer of settle-
ment which would be recommended to the membership On
December 11 the Union complied and through the Mediator
forwarded the following proposals to the Company, which
received them on December 14 10
1 Seniority-Language as currently exists in the F E. Olds
contract, Fullerton, California, with the exceptions that the
IUE is willing to modify their position to the extent that
department seniority shall be provided for.
2 Wages-Twelve cents (124) an hour across-the-board
retroactive to October 31, 1967, with an additional thirteen
cents (134) across-the-board to go into effect the day the
contract is signed
3 One additional
Thanksgiving.
4 An irrevocable
holiday, preferably the Friday after
check-off providing for one 10-day
escape period per year.
5. Overtime as currently provided for in the agreement
between the IUE and F. A. Reynolds Company.
6 The Union proposes in addition to the above, two
5-minute clean-up periods-one prior to lunch and one prior
to quitting time for the Sanding and Buffing Department.
In Lieu of Number 6, the Union will accept smoking
privileges for the employees in the factory in unrestricted
areas
7. This proposal is intended to resolve all issues, that is all
Company proposals that have not been agreed to and not
covered above are hereby rejected All Union proposals that
have not previously been agreed to and not outlined above
would be withdrawn.
The Union's letter which accompanied the proposals stated
.. The Union is making this proposal in writing on the
assumption that a contract can be settled short of a strike
If the Company agrees to the attached proposal, the Union
will recommend acceptance to their members of Local
1016, IUE-AFL-CIO."
In his letter forwarding the Union's letter and proposals to the
Company, the Mediator stated 1 1
. Everything in this proposal appears to be negotiable to
some degree; however, as long as the Company is complete-
ly adamant in its present position to refuse to consider any
type of checkoff, the Union position appears to stiffen.
Checkoff, in other words, is the key issue separating the
parties.
Commissioner's position, is that I will communicate with
both parties in any manner which appears conducive to
settlement of your differences by agreement rather than
December 14 Respondent at no time denied the statement
10 General Counsel 's Exhibit 11
11 General Counsel's Exhibit 31
F. A. REYNOLDS CO., INC. 423
strike As long as such communication can be rewarding
through normal channels, these channels will be utilized If
and when an additional joint conference is indicated, I will
schedule same as promptly as possible
The Mediator's letter was addressed to both the Company and
the Union.
On December 14, 1967, Respondent wrote to the Mediator,
with a copy to the Union, stating in part,' 2 that the
Mediator's comment that the checkoff was "the key issue
separating the parties is not necessarily correct", that the
Union's wage proposal was the first specific wage proposal
received from the Union; that retroactivity had never been
mentioned except in the Union's telegram refusing to consent
to the effectuation of the Company's proposed increase, that
the Company had already specifically rejected the Union's
demands for the Olds Company seniority language, an ad-
ditional holiday, clean-up periods, and for smoking privileges,
that the Union's December 11 proposal broadened, rather than
narrowed, the area of disagreement, and, finally, that it was
rejected The Company's November 17 offer was "reiterated "
On January 15 the Union wrote to Respondent, stating that
since the Mediator had not seen fit to set up a collective-bar-
gaining session, it was requesting Respondent to meet with it,
with or without the Mediator, on January 22 through 31 at
3 30 p m each day, and it sent a similar letter on January
22' 3 On January 19 Respondent replied to the first letter
that a question as to the Union's majority status existed in
view of the pendency before the Board of the petition for
decertification in Case No 16-RD-249 14 The Union replied
that in view of its certification Respondent was under duty to
bargain with it pending decision by the Board of any question
concerning representation, and the requests for bargaining
meetings were renewed' 5 On January 24, Rea replied 1 6 He
stated that in view of the union membership's rejection of
Respondent's "best and final offer," an impasse existed on
November 30, 1967, that the Union's proposal of December
11 did not narrow, but widened, the area of disagreement,
since the Union for the first time injected the issue of
retroactivity He reiterated that Respondent's offer of Novem-
ber 17 stood as its best and final offer The letter then stated
It has been, and still is apparent that an IMPASSE DOES
EXIST by and between the parties.
In the event your position has changed from the
proposals mailed to us by Commissioner Koenig and dated
December 11, 1967, please notify us immediately by
submitting to us a written proposal. .
The letter concluded by promising information which the
Union had requested, and this was ultimately furnished On
January 29 and February 5 and 12 the Union repeated its
request for meetings "at the bargaining table," stating in
various forms that, "The U S. mail is no substitute for the
bargaining table " The letters usually included language such
as, " . fancy phrases like impasse does exist will not relieve
you of your obligations to meet and negotiate at the
bargaining table."' 7 The exchange of correspondence con-
tinued for some time,' 8 with the Union repeatedly demanding
that Respondent meet with it' 9 and Respondent pointing out
that since an impasse had been reached, it would not meet
with the Union to engage in futile negotiations 20 Respondent
emphasized that it stood ready to arrange a meeting with the
Union upon receipt of written proposals demonstrating that
the Union's position had changed. In one letter Respondent
renewed its proposal to place into effect the wage increase it
had offered, but this was rejected by the Union
Concluding Findings As to the
Refusal to Meet
As Respondent has admittedly refused the request of the
employees' statutory bargaining representative for further
meetings after November 17, it has the burden of justifying
such refusal Respondent makes the following contentions and
claims (1) That the record is devoid of any evidence which
would show that either party requested anyone with the
Federal Mediation Service to schedule any additional meeting
for any purpose; Respondent, moreover, apparently contends,
citing N.L R B. v. Cambria Clay Products, 215 F 2d 48 (C A
6), that since the Mediator did not see fit to schedule
additional meetings, Respondent's refusal to meet was not
unlawful (2) That the Union ignored Respondent's request to
submit a new proposal as the basis for future negotiations (3)
That the Act does not require an employer to continue to
meet with a bargaining representative after an impasse in
negotiations has been reached, which, it claims was the case
here even before the November 17 meeting
As to item (1), the record does show, as already found, that
at some time between November 17 and December 11 the
Mediator advised Respondent that the Union had requested
him to arrange a meeting The record is not clear as to his
opinion of the usefulness of such a meeting, his letter however,
indicates that he did not schedule one at least in part because
Respondent stated that a meeting would not change its last
offer In any event, the Mediator's decision not to arrange such
a meeting at that time does not determine the parties' rights
First, his opinion, although entitled to consideration, is not
conclusive, especially since he did not, and could not, testify at
the hearing and thus subject his opinion to the test of
cross-examination Indeed, if the Mediator's opinion were to
be accepted as conclusive, Respondent would be out of court,
its refusal to meet with the Union persisted in the face of his
statement, referring to the Union's proposal of December 11,
"Everything in this proposal appears to be negotiable to some
degree " Second, his decision not to call a meeting and his
pessimistic statements do not warrant a finding that he
thought such a meeting would be useless if held Mediators use
various devices to push parties into finding agreement, and it
would be unrealistic to take all their statements made under
those circumstances at face value Third, by resorting to
mediation parties do not place their rights under the Act in the
control of the mediator Their actions vis-a-vis the mediator are
significant in weighing the nature of their conduct; but, absent
bad faith or unreasonableness, they are not disabled from
12 General Counsel's Exhibit 30.
13 General Counsel's Exhibits 34 and 36
14 General Counsel's Exhibit 35.
15 General Counsel's Exhibit 37
16 General Counsel's Exhibit 38
17 General Counsel's Exhibits 39, 41, and 42
18 The correspondence in evidence closed with a telegram from the
Union to the Company dated March 25, 1968, General Counsel's
Exhibit 50
19 General Counsel's Exhibits 44, 45, and 46
20 General Counsel 's Exhibits 43 and 49
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seeking agreement without the mediator, especially where the
mediator has failed
As to item (2), Respondent is not accurate in saying that
the Union ignored its request to submit a new proposal if the
claim refers to the time subsequent to the parties' last meeting
on November 17 On December 11 the Union submitted a
written proposal modifying its prior position in two material
respects (a) It agreed to departmental seniority in place of
plantwide seniority theretofore insisted on; and (b) it cut its
wage demands down from 30 cents per hour to 25 cents per
hour, at the same time giving up its demand for retroactivity
with respect to half of this amount 2'
Item (3), the question of impasse, is the crucial issue. The
parties had for some time maintained their respective and
conflicting positions with respect to checkoff, mandatory
overtime, one additional holiday, two 5-minute cleanup
periods for the buffing and sanding room, and loss of pay by
grievance-committee members. As to seniority, as already
stated, the Union had acceded on December 11 to Re-
spondent's insistence upon departmental seniority, but it still
demanded the language contained in the seniority provisions of
the contract of Respondent's affiliate, F. E. Olds, while
Respondent insisted on its own seniority provisions. As to
wages, the Union on October 16 had proposed a 30-cent-per-
hour increase effective November 1, Respondent on October
17 had countered with a proposal for a 10-cent-per-hour
increase at the top of each rate range, and on October 30 had
presented this as part of its first "best and final offer " On
November 17, however, Respondent had improved this pro-
posal by offering the 10-cent increase throughout the rate
ranges, plus an additional 5 cents at the top of each range in
April 1968. On December 4 the Union explicitly demanded
that all increases be retroactive to October 31, and on
December 11 it reduced its demand from 30 cents to 25 cents
per hour, with half not to be retroactive. The foregoing is not a
picture of rapidly moving negotiations, but neither is it one of
negotiations caught in the doldrums.
It is true that the Act does not require parties to engage "in
fruitless marathon discussion." But it is also true that the heart
of 8(a)(5) is the obligation to discuss. In United States Cold
Storage Corporation, 96 NLRB 1108, The Board said
It is elementary that collective bargaining is most effectively
carried out by personal meetings and conferences of parties
at the bargaining table.
As stated by Mr COX. 22
. Participation in debate often produces changes in a
seemingly fixed position either because new facts are
brought to light or because the strength and weaknesses of
the several arguments become apparent Sometimes the
parties hit upon some novel compromise of an issue which
has been thrashed over and over. Much is gained even by
giving each side a better picture of the strength of each
other's convictions. The cost is so slight that the potential
gains easily justify legal compulsion to engage in the
discussion [Emphasis supplied.]
A party undertakes a heavy burden when he refuses to meet
21 The Union's original demand was for a wage increase "effective
November 1, 196'7," but that was made in September , when it would
not have been retroactive When November 1 came and went it said
nothing about the effective date of an increase until December 4, when
the Union demanded that any wage increase be retroactive.
22 Archibold Cox, The Duty To Bargain in Good Faith, 71 Harv L.
Rev. 1401, 1412
or, as in this case, when he requires as a condition of meeting
that his opposite make further concessions in writing, on the
ground that discussions have reached, or are about to reach,
the stage of a fruitless marathon Not only is Respondent in
error, as already pointed out, in its assumption that the parties'
discussions had resulted in a deadlock, but it has also lost sight
of other important factors bearing upon the question of
impasse First, even though the Union's concessions on
December 11 of 5 cents per hour and plantwide seniority were
moderate, they were by no means insubstantial and they
negated the proposition that there was no prospect of further
movement. In collective bargaining parties are cautious in
making concessions in order to seek openings in their
opponents' positions On November 17 the Company had
moved from its October 30 "best and final offer" as to wages,
and on December 11 the Union had reduced its wage demand
In American Federation of Television and Radio Artists,
AFL-CIO, Kansas City Local v NL.R.B and Taft Broad-
casting Company, 395 F.2d 622 (C A D C.), the court stated
... It is indeed a fundamental tenet of the Act that even
parties who seem to be in emplacable conflict may, by
meetings and discussion, forge first small links and then
strong bonds of agreement ....
Second, Respondent has ignored the question of the length of
the negotiations, which the Board has said is a relevant factor
in determining whether an impasse exists.23 Negotiations for
collective contracts customarily do not resolve themselves as
expeditiously as do negotiations for ordinary business con-
tracts. The Supreme Court stated in United Steel Workers of
America v Warrior and Gulf Navigation Co , 363 U S S74
A collective-bargaining agreement is an effort to erect a
system of industrial self-government When most parties
enter into contractual relationship they do so voluntarily, in
the sense that there is no real compulsion to deal with one
another, as opposed to dealing with other parties This is
not true of the labor agreement. The choice is generally not
between entering or refusing to enter into a relationship, for
that in all probability pre-exists the negotiations ...
The fixed relationship of the parties results, typically, in the
protracting of negotiations. The 18 hours or less spent by the
Company and the Union in their seven sessions were far below
what would qualify as a marathon, as collective-bargaining
negotiations go. This characteristic of labor-management nego-
tiations appears even in cases cited by Respondent in its brief.
Thus, in United States Storage Corporation, 96 NLRB 1108,
the parties had engaged in 17 bargaining sessions and the Board
merely assumed, without deciding, that an impasse had been
reached In Webb Furniture Corporation, 152 NLRB 1526, the
parties had had 17 bargaining sessions; in Bi-Rite Foods, Inc,
147 NLRB 59, "some 20 to 25...sessions extending over a
4-month period .. "; in Dunn Packing Company, 143 NLRB
1149, an unspecified number of sessions over 1'h years 2 4 Cases
could be cited where negotiations were considerably more
extensive. Third, Respondent gave no consideration at all to,
and never discussed, the supervening circumstance that its
23 See Taft Broadcasting Co. 163 NLRB 475, 478
24 in Dunn Packing Company the employer, while requesting the
Union to submit a written proposal, nevertheless stated unconditionally
and unequivocally , 2%z years after the inception of negotiations, "Of
course, we will meet with you on demand."
F. A. REYNOLDS CO., INC.
second "best and final offer" had been unanimously rejected
by the employees As already stated, Respondent was not
negotiating an ordinary business contract with someone who
could go elsewhere or with whom it could choose not to deal
An employer seeking in good faith to reach agreement will give
serious consideration to the extent and strength of his
employees' feelings as to matters at issue See the quoted
passage from Mr Cox's article, supra. Indeed, at the November
17 session Respondent displayed specific interest in this
question when Rea interrupted Dolan's discussion with the
Mediator more than once to ask if the Union was willing to
submit Respondent's proposal to the employees
As the negotiations had not been unduly lengthy, and as the
parties' respective positions changed materially during and
following the last bargaining session held, and as the em-
ployees, following the last session, had voted unfavorably on
Respondent's proposal, it is found that no impasse had been
reached It is further found that Respondent was not justified,
because the Union did not submit a further new proposal, in
refusing the Union's requests for meetings made on December
4, 1967, and thereafter, and that Respondent by such refusal
violated Section 8(a)(5).
3 The refusal to furnish insurance data
In their initial proposals both the Union and the Company
included changes with respect to insurance. When this was
discussed at the third bargaining session, the Union repre-
sentatives stated that since it had developed that cost was a
factor, they would require the Company's "D-2 information."
The "D-2 form" recorded the total amount of premiums paid,
benefits paid, and costs to the carrier denominated "retention
charges." The Company representatives promised the in-
formation At the fourth meeting the request was renewed and
it developed that the Company had failed to bring the form
along.
Collier testifed that at the fourth meeting he told the union
representatives that the premiums paid had amounted to
$21,000, that over $19,000 had been paid out in benefits, and
that the various other costs had brought the insurance carrier's
expenditures up so that it had experienced a loss of several
hundred dollars, that he also stated the premium costs per
employee, both single and with dependents, and that a copy of
the Company's insurance booklet was furnished to the Union
representatives. He testified further-
It is my recollection that this information satisfied Mr.
Dolan There was no big pitch made on a D-2 form, it had
not been requested in writing, we had not given this
information in writing, and that was all that I thought there
was to it, until we got into these hearings."
He stated, also, that the Union representatives made no
subsequent requests for a D-2 form Javior testified that he
requested the D-2 form information at every meeting except
the second. He testified that Rea at first gave various dilatory
or indefinite answers, but that at the fourth and subsequent
meetings his reply was that the Union would have to be
satisfied with the information already given. At the first
meeting, when Javior made a request for certain information
concerning the employees in the bargaining unit, Rea suggested
25 The Trial Examiner does not construe "schedules of production,"
contained in sec 2 of art XV111, to refer to hours of work
425
that in order to avoid misunderstanding, requests for informa-
tion be in writing. The following day Javior wrote to Rea
requesting the information in question. He did not explain
why he did not include the D-2 information in his request. He
testified to a vague recollection of having also requested the
D-2 form in writing at some time, but he hedged his testimony
with a refusal "to swear" to it, and he admitted that he had
searched unsuccessfully for a copy of his letter. The insurance
issue did not loom especially large in the negotiations, and
both the Company and the Union withdrew their respective
proposals prior to their termination On the basis of the
foregoing circumstances and of Collier's forthright testimony,
which contrasted with Javior's vagueness, the Trial Examiner
has credited Collier's testimony that the Union indicated that
it was satisfied with the D-2 information orally furnished at
the fourth meeting, and that it did not thereafter renew its
request It is found that the request was in effect withdrawn It
is further found that the General Counsel has failed to
establish by a preponderance of the credited evidence that
Respondent refused to furnish to the Union data relating to
the insurance.
4 The unilateral change in
hours of work
Article V of the old contract provided as follows.
Hours of Work
Section 1. The normal workday shall consist of not
more than eight (8) consecutive hours, exclusive of a thirty
(30) minute lunch period.
Section 2 The normal work week shall consist of not
more than forty (40) hours worked on five (5) consecutive
days, Monday through Friday It is however, agreed that
certain employees may be assigned to a different scheduled
work week so long as said work week consists of five (5)
consecutive days (40 hours) As much advance notice as
possible will be given any employee requested to work a
different scheduled work week
Section 3 Nothing in the foregoing sections shall be
construed as a guarantee of any number of hours per day or
per week
Article VI provided for time and one half for daily and weekly
overtime, and for Saturday work by employees working, or
available for work, during the 5 preceding days, required that
overtime be approved in writing, and provided that overtime
would be distributed as equally as practical among those
normally performing the work. Article XVIII of the contract
was a broad man agement-prerogative provision which, how-
ever, contained no express reference to hours of work,2 5 and
which included the following. "Section 4. Nothing herein shall
constitute a waiver by the Union of any of its rights under the
terms of the Labor-Management Relations Act " Respondent's
Employees' Handbook contained the following 26 "The work
period is scheduled and posted on the Employees Bulletin
Board," and Respondent kept posted on the bulletin board
located near each of the half-dozen timeclocks distributed
throughout the plant work schedules in the following form.27
26 Respondent 's Exhibit 5
27 General Counsel's Exhibits 19 through 26
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
NORMAL WORK WEEK MON THRU FRI.
7 30 A.M. TO 4 00 PM.
OVERTIME SCHEDULE MON THRU FRI.
Effective Starting Thru
Department
I Employee
or Group
Hours
Starting I
Posted
By
Thru
Time
Respondent placed in evidence some 65 work schedules on the
above form covering various periods between November 1966,
shortly after the contract became effective, and March 1968
Prior to February 1968 the posted schedules for the most part
showed workweeks of 81h to 9ih hours, predominately 8' to 9
hours and none of more than 9'f hours The record establishes
that in addition some employees worked on Saturdays and
that at times employees worked 10 hours per day on a
voluntary basis.
For the periods starting February 5 and March 4, 1968
Respondent posted Monday to Friday schedules showing 10
hours of work per day for male employees in certain
departments and 10' hours for several Among those sub-
jected to the 10-hour schedule was Kerry Grider He had been
pleased to work a 9-hour day, but the 10-hour schedule
interfered with a second job he had elsewhere He had refused
to work the 10th hour when it was offered on a voluntary
basis in December and January, and when the 10-hour
schedule was posted, he frequently walked off the job after 9
hours. This resulted in a formal oral warning to him on March
8, 1968, with express notice that he would be replaced if he
did not work the scheduled hours.28 Grider was still employed
by Respondent at the time of the hearing
During the negotiations Respondent proposed, and insisted
upon, a provision, "... that employees shall be required to
work scheduled overtime hours ... " The Union claimed that
under the old contract overtime had been voluntary and it
insisted that it remain so. Respondent claimed that under the
old contract it had the right to require overtime but that it
needed the additional language to avoid the difficulty it was
having persuading employees that overtime work was man-
datory Until the incident with Grider the problem had not
arisen with respect to daily overtime, but only with respect to
work on Saturdays The issue was fully discussed but no
agreement was reached
The contract established the normal workday and normal
workweek While the provisions relating to overtime make it
plain that the parties contemplated that some overtime would
be worked, the contract did not establish any maximum hours
Nor did the General Counsel prove that a condition of
employment had been established by custom or practice that
overtime would not exceed any particular number of hours.
No issue had ever been raised as to Respondent's authority to
schedule a 9- or 9i6-hour day without consulting the
Union. The mere fact that no 10-hour day had been scheduled
prior to February 1968 does not, standing alone, prove that it
was an established condition of employment that Respondent
could require 9 or 9'f hours of work but not 10 hours.
Moreover, when issue arose as to requiring work outside the
normal workweek on Saturday, Respondent insisted on its
authority to require such work, and there is no evidence that
this was ever contested by the Union.
It is found that the General Counsel has failed to prove that
Respondent's action in requiring employees to work 10 hours
per day constituted a new term or condition of employment or
that Respondent unilaterally changed established hours of
work.
5. The refusal to discuss grievances
Bilbrey, employed since 1965, was a machinist in the tool
room In early September 1967 he encountered difficulty
making a small tool holder because of a defective bit which he
used, with the result that his work report showed the
expenditure of excessive time and material. On September 12
his supervisor noted the report and caused the issuance of a
written warning notice reading as follows. 2 9
WARNING NOTICE
To Billy Bilbrey
It has come to our attention 9-12, 1967 you committed
the following violation(s) of our established rules of
conduct.
Failed to follow instruction to advise Supervisor of
problems encountered in performance of assigned jobs. In
making small tool holder, you made three separate attempts
to make one tool holder and scrapped the first two which
you are not authorized to do Your failure to advise your
Supervisor resulted in excessive material usage and lost
time
You are hereby advised that this Warning Notice has
been given you so that you may know such action cannot
be tolerated, and that any further violation of Company
rules will result in appropriate disciplinary action, including
discharge
The final sentence of the notice was part of the printed form,
except for the words, "including discharge," which were added
by typewriter. When handed a copy of the warning notice,
28 General Counsel's Exhibits 27, 28, and 29
29 General Counsel's Exhibit 17.
F. A. REYNOLDS CO., INC.
Bilbrey protested that he felt that he was being discriminated
against because of the Union He filed a grievance, which was
discussed at the third step on October 2, immediately
following a negotiating session which had been aborted
because of Javior's persistent references to alleged "hanky
panky" on the part of the Company Respondent stated that
the material wasted and time lost by Bilbrey were not
important in themselves but that he had failed to consult his
supervisor which, in another situation, could result in sub-
stantial losses Respondent refused to withdraw or modify the
grievance and invited the Union to institute arbitration
proceedings When it was pointed out on October 2 that
Bilbrey had wasted only one piece of material, not two, Rea
corrected the warning notice accordingly Javior remarked that
the Company was reducing the notice to half a warning, upon
which Rea said, "We don't have to sit here and listen to these
snide remarks Let's go," upon which the company repre-
sentatives left the room The Union eventually instituted
arbitration proceedings
The General Counsel contends that the Respondent refused
to process the Bilbrey grievance. 0 Javior's remark about "half
a warning" was not such as to justify Respondent in walking
out of the meeting On the other hand, Respondent had fully
stated and attempted to support its position as to the
grievance, and there is no evidence that the Union ever sought
another meeting to supplement its own arguments, on the
contrary, it submitted the matter to arbitration So far as is
disclosed by the record, this was an isolated instance of such
conduct on Respondent's part so far as grievances are
concerned. Moreover, some allowance should be made for its
impatience in view of Javior's provocative, gratuitous, and
repeated accusations of "hanky panky" at the bargaining
session a short time before Because of all these circumstances
no finding is made that Respondent refused to process the
Bilbrey grievance or that its actions with respect thereto were
violative of Section 8(a)(5) 3 i
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
It is found that the activities of Respondent set forth above
in section III, occurring in connection with its operations
described in section I, have a close, intimate and substantial
relationship 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
As it has been found that Respondent engaged in certain
unfair labor practices, it is recommended that the Board issue
the Recommended Order set forth below requiring Re-
30 He also contends that Respondent refused to process other
grievances , but no page references are furnished and the Trial Examiner
recalls no such testimony
31 General Counsel made no contention that the warning was
motivated by Bilbrey 's membership in the Union or the negotiating
committee,
427
spondent to cease and desist from said unfair labor practices
and to take certain affirmative action which will effectuate the
policies of the Act. The presence of the warning notice in
Leal's personnel file constitutes a constant threat that he may
suffer disadvantage from it in the future . In order to ensure
that this does not occur , and to give him and other employees
assurance that it will not occur , it is recommended that
Respondent be required to expunge such notice from its
records
CONCLUSIONS OF LAW
1 Respondent, F A Reynolds Co , Inc, is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2 Respondent is, and at all times material has been, an
employer within the meaning of Section 2(2) of the Act
3 International Union of Electrical, Radio and Machine
Workers, AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act
4 All production and maintenance employees of Re-
spondent at its Abilene, Texas, plant, including shipping and
delivery employees, janitors, leadladies, leadmen, section fore-
man in the mounting department, foreman over buffing and
foreman over lacquering, but excluding office clerical em-
ployees, guards, watchmen, professional employees, all super-
visors as defined in the Act, and all other employees,
constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act
5. At all times since prior to June 17, 1966 the Union has
been, and it still is, the exclusive representative of all the
employees in the appropriate unit for the purpose of collective
bargaining in respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment,
within the meaning of Section 9(a) of the Act
6. By refusing to bargain collectively with the Union as the
exclusive representative of all its employees in the appropriate
unit, Respondent has engaged, and is engaging, in unfair labor
practices within the meaning of Section 8(a)(5) of the Act
7 By interfering with, restraining, and coercing employees
in the exercise of rights guaranteed in Section 7 of the Act,
Respondent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) of the Act
8 The unfair labor practices described above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case, and
pursuant to Section 10(c) of the National Labor Relations Act,
as amended, Respondent, F. A Reynolds Co., Inc , its officers,
agents, successors, and assigns, shall-
1. Cease and desist from.
(a) Refusing to meet and confer with International Union
of Electrical, Radio and Machine Workers, AFL-CIO, with
respect to wages, hours, and other terms and conditions of
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment of Respondent's employees in the appropriate
unit, and with respect to the negotiation of an agreement and
of any question arising thereunder, or from insisting, as a
condition to so meeting and conferring with the Union, that
the Union first submit proposals.
(b) In any other manner refusing to bargain collectively
with the Union as the exclusive representative of its employees
in the appropriate unit with respect to rates of pay, wages,
hours of employment, or any other terms or conditions of
employment The appropriate unit is.
All production and maintenance employees of F. A.
Reynolds Co , Inc , at its Abilene, Texas, plant, including
shipping and delivery employees, janitors, leadladies, lead-
men, and section foreman in the mounting department,
foreman over buffing and foreman over lacquering, but
excluding office clerical employees, guards, watchmen,
professional employees, all supervisors as defined in the
Act, and all other employees
(c) Interrogating employees concerning their union mem-
bership or desires in a manner or under circumstances
constituting interference, restraint, or coercion within the
meaning of Section 8(a)(1) of the Act
(d) Issuing warnings or other disciplinary notices to em-
ployees or visiting other reprisals upon them because they file
grievances or exercise other rights protected by Section 7 of
the Act
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2 Take the following affirmative action which, it is found,
will effectuate the policies of the Act
(a) Upon request, meet with and bargain collectively with
the Union as the collective-bargaining representative of the
employees in the appropriate unit, and, if an understanding is
reached, embody such understanding in a signed agreement.
(b) Expunge from the personnel record of John Leal and
from all other records the warning notice dated August 30,
1967
(c) Post at its office and place of business' located in
Abilene, Texas, copies of the notice attached hereto marked
"Appendix "31 Copies of said notice, on forms provided by
the Regional Director for Region 16, after being duly signed
by its representative, shall be posted immediately upon receipt
thereof and be maintained by it for 60 consecutive days
thereafter in conspicuous places, including all places where
notices to employees are customarily posted Reasonable steps
shall be taken to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 16 in writing,
within 20 days from the receipt of this Recommended Order,
what steps Respondent has taken to comply herewith 33
IT IS ALSO RECOMMENDED that the allegations that Re-
spondent promised employees benefits for refraining from
membership in or assistance or support of the Union, that it
refused to furnish insurance data to the Union, unilaterally
changed hours of work and the grievance procedure and
refused to accept grievances, be dismissed
Dated
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner
of the National Labor Relations Board and in order to
effectuate the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that
WE WILL upon request, meet with and bargain col-
lectively with International Union of Electrical, Radio and
Machine Workers, AFL-CIO, as the collective- bargaining
representative of the employees in the appropriate unit, and
if an understanding is reached, embody such understanding
in a signed agreement The appropriate unit is*
All production and maintenance employees of F A.
Reynolds Co., Inc , at its Abilene, Texas, plant, including
shipping and delivery employees, janitors, leadladies,
leadmen, the section foreman in the mounting depart-
ment, the foreman over buffing and the foreman over
lacquering, but excluding office clerical employees,
guards, watchmen, professional employees, all super-
visors as defined in the Act, and all other employees,
WE WILL expunge from the personnel file of John Leal
and from all company records the Warning Notice to him
dated August 30, 1967
WE WILL NOT issue warnings or other disciplinary no-
tices to employees or take any other reprisals against them
because they file grievances or exercise other rights pro-
tected by Section 7 of the Act.
WE WILL NOT interrogate you concerning your union
membership or desires in a way or under circumstances that
would restrain or coerce you
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of your right to
self-organization, to bargain collectively through repre-
sentatives of your own choosing and to engage in any other
concerted activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any or
all such activities.
F A. REYNOLDS CO., INC.
(Employer)
32 In the event that this Recommended Order is adopted by the
Board , the words "a Decision and Order " shall be substituted for the
words "the Recommended Order of a Trial Examiner " in the notice In
the further event that the Board 's Order is enforced by a decree of the
United States Court of Appeals , the words "A Decree of the United
States Court of Appeals Enforcing An Order" shall be substituted for'
the words "A Decision and Order "
33 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify the Regional
Director for Region 16, in writing , within 10 days from the date of this
Order , what steps Respondent has taken to comply herewith "
APPENDIX
By ....................
(Representative ) (Title)
This Notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered, defaced, or
covered by any other material.
If employees have any question concerning this Notice or
compliance with its provisions, they may communicate direct-
ly with the Board's Regional Office, 8A24 Federal Office
Building 819 Taylor Street, Fort Worth, Texas 76102 (Tel. No
334-2934).