Stuart Radiator Core Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Oct 9, 1968

173 N.L.R.B. 125 (N.L.R.B. 1968)

STUART RADIATOR
Stuart Radiator Core Manufacturing Co., Inc. and
Operating Engineers Local Union No. 3, Interna-
tional Union of Operating Engineers , AFL-CIO.
Case 20-CA-4643
October 9, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On May 29, 1968, Trial Examiner William E.
-Spencer issued his Decision in the above-entitled
rproceeding, finding that 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
attached Trial Examiner's Decision. The Trial Ex-
aminer also found that Respondent had not engaged
in certain other unfair labor practices alleged in the
complaint and recommended dismissal as to them.
Thereafter, the General Counsel, Charging Party and
Respondent filed exceptions to the Trial Examiner's
Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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 briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and ; recommendations of the,
Trial Examiner, with the following additions and
modifications-
1. We agree with the Trial Examiner that Respon-
dent engaged in surface bargaining to avoid reaching a
1 "The Company retains and shall continue to have the complete
and exclusive right and power to manage its operations and direct its
working force , except as expressly limited by specific obligations of the
Company set forth in this Agreement . Among such retained rights and
power are included the following. to hire, to promote , demote, transfer,
layoff and recall ; to assign and reassign to duties , hours of work and
shifts, to maintain good order and efficiency ; to discharge , suspend, and
discipline employees ; to establish rules and regulations not in conflict
with this Agreement governing the conduct of employees on Company
time or Company property , to determine the type and quantities of
product to be manufactured ; to determine methods, processes, and
means of manufacture , production and distribution and of administra-
tion and sales , to determine the size and composition of the working
force, to locate work within the plant , to discontinue all or any part of
nS operations, to transfer to other locations and there to perform all or
any part of its operations , to subcontract all or any part of its
operations, to determine whether to purchase or manufacture compo-
nents and finished products , to lease, sell or otherwise dispose of or
permit the use by others of all or any part of its plant and equipment."
2 See, for example, Procter & Gamble Mfg. Co, 160 NLRB 334, 336.
CORE MFG CO 125
meaningful agreement with the Union. This effort to
undermine the Union was clearly manifested by the
nature of the contract proposals offered by Respon-
dent at the bargaining table. Thus, Respondent
insisted on a broad and extremely detailed manage-
ment rights clause' which reserved to Respondent
absolute unilateral control over virtually every signifi-
cant term and condition of employment. Another of
Respondent's proposals limited grievances and arbitra-
tion to the express terms of the contract. Thus,
almost none of the Union's objections to Respon-
dent's exercise of its prerogatives would be amenable
to the grievance-arbitration procedure.' In addition,
Respondent insisted upon an unusually broad waiver
clause requiring the Union's abdication of virtually all
employee statutory bargaining rights during the term
of the contract.3
While it is well established that an employer's
insistence upon a management rights clause does not
itself violate Section 8(a)(5),4 the nature of an
employer's proposals on management rights and other
subjects are material factors in assessing its motivation
in approaching negotiations. Thus, rigid adherence to
proposals which are predictably unacceptable to the
Union may indicate a predetermination not to reach
agreement, or a desire to produce a stalemate, in
order to frustrate bargaining and undermine the
statutory representative.'
An evaluation of all Respondent's proposals herein
indicates that Respondent was determined to force
the Union to abandon its right to be consulted
regarding practically all disputes that might arise
during the term of the contract relating to terms and
conditions of employment; i.e., to waive its statutory
right to bargain collectively. Such proposals indicate
more than hard bargaining. Since the Respondent
could not have offered them with any reasonable
expectation that they would be acceptable to the
Union, we can only conclude that Respondent did
not approach negotiations in good faith and with the
intent of reaching an agreement. We thus find that
3 "Section 18 . 1-Bargaining during Term . Notwithstanding the
Company's recognition of the Union or any other provision of this
Agreement , each party hereto expressly waives any obligation or duty
presently or hereafter imposed by federal or state law on the other
party to bargain collectively or to negotiate with such party over or
pertaining to management decisions (including but not limited to such
decisions as plant or departmental removal , subcontracting , or discon-
tinuance, shutdown , sale or other disposition of a plant or departmental
operation or of a product, service, or function, or as to the effects of
any such decision ) or as to wages, hours , pensions , insurance , or other
fringe benefits , or any terms or conditions of employment , or any other
matters or subjects whatsoever during the term of this Agreement,
whether or not any such matter or subject has been presented,
discussed , or resolved in negotiations leading to this Agreement, or
made the subject of a provision of this Agreement, and each party
acknowledges and agrees that the other party shall have no such
obligation or duty during the term of this Agreement."
4 N.L.R B v. American National Insurance Co., 343 U.S. 395.
5 Procter & Gamble Mfg. Co. supra. -
173 NLRB No. 27
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's approach to negotiations was superficial
and completely inconsistent with the principle of
good-faith bargaining.6
2. The complaint alleges that on August 22, 1967,
certain of Respondent's employees ceased work and
went on strike, that the strike continued thereafter,
and that it was caused and prolonged by Respon-
dent's unfair labor practices. The Trial Examiner
made no findings as to the character of the strike here
involved.
We conclude that the record amply supports a
finding that the strike was in fact caused and
prolonged by Respondent's unfair labor practices at
the bargaining table. Thus, on August 21, 1967, at a
union meeting the employees rejected Respondent's
proposals and voted to strike. Since Respondent's
insistence on these proposals was inherently part of
Respondent's unlawful refusal to bargain, the strike
was caused, at least in part, by the Respondent's
breach of its bargaining obligation and was, from its
inception, an unfair labor practice strike.'
THE REMEDY
It having been found that at the time of the hearing
Respondent's employees were engaged in a strike
caused and prolonged by Respondent's unfair labor
practices, the striking employees are therefore en-
titled to reinstatement upon application, whether or
not their positions have been filled by the hire of
replacements.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and orders that the Respondent,
Stuart Radiator Core Manufacturing Co., Inc.,
Merced, California, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order, as herein modified:
1. Add the following paragraph as paragraph 2(b)
and reletter the subsequent paragraphs:
(b) Upon application, offer immediate and full
reinstatement to their former or substantially equiva-
lent positions, without prejudice to their seniority or
other rights and privileges, to all those employees who
went on strike on August 22, 1967, or thereafter.
2. Add the following paragraphs to the appendix
attached to the Trial Examiner's Decision:
WE WILL, upon application, offer all employees
who went on strike on August 22, 1967, or
thereafter, immediate and full reinstatement to
their former or substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges.
WE WILL make the above-mentioned employees
whole for any loss of pay they may suffer as a
result of our refusal to reinstate them or employ
them, upon application.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations not found
herein.
6 White's Uvalde Mines, 117 NLRB 1128, East Texas Steel Castings
Company, 154 NLRB 1080, 1081 -2, Architectural Fiberglass-Divi-
sion of Architectural Pottery, 165 NLRB No 21
7 Berger Polishing, Inc, 147 NLRB 21, 38. Although the strike was
also based on economic factors, it is well settled that if the strike was
motivated because of unfair labor practices in addition to economic
factors , it is an unfair labor practice strike Wittock Supply Company,
171 NLRB No. 33.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM E. SPENCER, Trial Examiner This proceeding
under Section 10(b) of the National Labor Relations Act,
hereinafter the Act, was heard in Modesto, California, on
March 19, 20, 21, 1968, pursuant to due notice. The
complaint, issued November 27, 1967, on a charge filed
August 10, 1967 by the Union herein, alleged in substance,
and Respondent in its duly filed answer denied, that Respon-
dent commencing about April 17, 1967, has refused to bargain
with the Union, the duly constituted representative of its
employees in an appropriate unit, in violation of Section
8(a)(1) and (5) of the Act, and has made certain statements
violative of Section 8(a)(1) of the Act All parties participated
in the hearing, and each of the parties has filed a brief.
Upon the entire record in the case, my observation of
witnesses, and consideration of briefs, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, a California corporation with an office and
manufacturing plant located in Merced, California, at all
material times has been engaged in the manufacture and sale at
wholesale of radiator cores. During the past calendar year, in
the course and conduct of its business, it sold and shipped
goods and materials valued in excess of $50,000 directly to
customers located outside California.
11. THE LABOR ORGANIZATION INVOLVED
Operating Engineers Local Union No. 3, International
Union of Operating Engineers, AFL-CIO, the Union herein, is
a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
On July 18, 1966, the Respondent made a collective
bargaining agreement with an organization called "The Amen-
STUART RADIATOR CORE MFG CO 127
can Union Federation," to be effective from July 18, 1966 to
September 1, 1968
The Union herein on some date not here specified, but
presumably subsequent to the execution of the July 18, 1966
contract, filed 8(a)(1), (2), (3), and (5) charges of unfair labor
practices against Respondent.'
On April 15, 1967, on the basis of a card check, the
Respondent recognized the Union as sole bargaining represen-
tative of its production and maintenance employees.
By letter dated April 20, 1967, the Union requested the
Board's regional office to permit the withdrawal of its charges,
referred to above, on the ground that the Union and the
Respondent had entered into an agreement settling the said
charges. The request was granted.
B. The Union's Majority in an Appropriate Unit
The parties agreed and it is found that at all times material
on and after April 15, 1967, the Union was the exclusive
representative of Respondent's employees in the following
appropriate unit
All production and maintenance employees employed by
Respondent at its Merced, California, plant, excluding office
clerical employees, salesmen, guards and supervisors as defined
in the Act.
C. The Issue
Did the Respondent fail and refuse to bargain with the
Union in good faith on and after April 15, 1967.
D. Negotiations
The Respondent met with the Union in bargaining sessions
on May 23, June 9, July 5, August 3, 11, 16, and 25, and
September 1, 1967. Throughout these negotiations Don
Kinchloe was the negotiator and spokesman for the Union,
Chester Ferguson, of a Los Angeles firm of labor relations
consultants, for the Respondent. No agreement on a contract
having been reached, the Union called the employees out on a
strike which began on August 22, 1967, and was continuing at
the time of the hearing The meetings of August 25 and
September 1 were attended and participated in by a represen
tative of the Federal Mediation and Conciliation Service
(FMCS), but did not result in an agreement.
The Respondent met with the Union at reasonable times
and made proposals and counter-proposals. To determine the
issue of good-faith bargaining it is necessary to look at the
Respondent's original contract proposal and to examine the'
nature of its later concessions.
The Management Rights clause of Respondent's contract
proposal, particularly in the portions which I have italicized,
demands our careful scrutiny, and follows in its entirety
The Company retains and shall continue to have the
complete and exclusive right and power to manage its
operations and direct its working force, except as expressly
limited by specific obligations of the Company set forth in
this Agreement. Among such retained rights and power are
included the following. to hire; to promote, demote,
transfer, layoff and recall; to assign and reassign to duties,
hours of work and shifts; to maintain good order and
efficiency; to discharge, suspend, and discipline employees;
to establish rules and regulations not in conflict with this
Agreement governing the conduct of employees on Com-
pany time or Company property; to determine the type and
quantities of product to be manufactured, to determine
methods, processes, and means of manufacture, production
and distribution and of administration and sales, to deter-
mine the size and composition of the working force, to
locate work within the plant, to discontinue all or any part
of its operations, to transfer to other locations and there to
perform all or any part of its operations; to subcontract all
or any part of its operations, to determine whether to
purchase or manufacture components and finished pro-
ducts, to lease, sell or otherwise dispose of or permit the use
by others of all or any part of its plant and equipment
The italicized portions were adhered to without modifications,
over the Union's objections, throughout the period of negotia-
tions.
Ferguson testified that he explained in the course of
negotiations in support of the Management Rights clause that
"when work is transferred between locations, a work order can
be processed in various locations, and . . . we wanted to
continue that right because we had that right in the past, and
we did not want to restrict our flexibility of operations in the
future, and this is why we wanted this clause. Q. In other
words, to shut down one plant, the one at 1130 Stuart Drive,
Merced, if it was deemed advisable by the company? A. No. I
advised the union that there was no intent to close down the
operations or move it, and I mentioned this at a number of
meetings with the union ... Q. And, having no intention of
that, you still wanted the right to do it, by contract9 A. That is
true. We wanted that right by contract."
The Management Rights clause was identical with a clause
in Respondent's contract with the Federation. Not included in
the Federation contract, however, were the following provi-
sions offered the Union and not modified or receded from
during negotiations, and which have some bearing on the
Management Rights proposal as explicated by Ferguson
Section 18.1-Bargaining during Term. Notwithstanding
the Company's recognition of the Union or any other
provision of this Agreement, each party hereto expressly
waives any obligation or duty presently or hereafter
imposed by federal or state law on the other party to
bargain collectively or to negotiate with such party over or
pertaining to management decisions (including but not
limited to such decisions as plant or departmental removal,
subcontracting, or discontinuance, shutdown, sale or other
disposition of a plant or departmental operation or of a
product, service, or function, or as to the effects of any
such decision) or as to wages, hours, pensions, insurance or
other fringe benefits, or any terms or conditions of
employment, or any other matters or subjects whatsoever
during the term of this Agreement, whether or not any such
matter or subject has been presented, discussed, or resolved
in negotiations leading to this Agreement, or made the
subject of a provision of this Agreement, and each party
acknowledges and agrees that the other party shall have no
such obligation or duty during the term of this Agreement.
Section 18.2• This Agreement constitutes the sole and
entire existing agreement between the parties and com-
pletely and correctly expresses all of the rights and
i This is inferred from the Union 's letter of April 20, 1967, to the
Respondent
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obligations of the parties. All prior agreements, conditions,
practices, customs, usages, and obligations are completely
superseded and revoked insofar as any such prior agree-
ment, condition, practice, custom, usage, or obligation
might have given rise to any enforceable right.
A further variance in the agreement between Respondent
and the Federation, came in Respondent's proposal for an
arbitration clause. The Federation agreement provided that
expenses incurred by the arbitrator "shall be borne equally by
the Company and the Association [Federation]," whereas in
its original proposal to the Union it was provided that the
entire expense of arbitration be borne by the loser. The
Respondent during negotiations receded from this requirement
and the arbitration provision of the Federation agreement was
reinstated Respondent would have this counted as a concession.
An alleged concession was Respondent's agreement to add a
no-lockout clause to its no-strike provision which appeared
in its agreement with the Federation in this form.
During the term of this Agreement, all disputes, griev-
ances, complaints and adjustments pursuant to this Agree-
ment shall be settled in accordance with the grievance and
arbitration procedure outlined herein, and the Association
agrees that there shall be no strike of any type, or
interference with production, coercive or otherwise, in
violation of this Agreement. Should there be any strike of
any kind, walk-out, slow-down, picketing, stay-in or
work stoppage of any type, or interference with produc-
tion, coercive or otherwise, in violation of this agreement,
participated in by one or more Association members, the
Association shall use every means at its disposal to abate
such action. The Company shall have the right to discipline
or discharge any and all participants of a strike of any kind,
walk-out, slow-down, picketing, stay-in or work stop-
page, or any type of interference with production, coercive
or otherwise, in violation of the Agreement. The Associa-
tion shall not question the unqualified right of the
Company to discipline or discharge employees engaging in,
participating in, or encouraging such action. It is under-
stood that such action on the part of the Company shall be
final and binding upon the Association, and its members,
and shall in no case be construed as a violation of this
Agreement.
The foregoing is the identical proposal of the Respondent
to the Union at the opening of negotiations During the course
of negotiations it agreed to the following modification-
However an issue of fact as to whether or not any
particular employee has engaged, participated in, or encour-
aged such violation may be subject to the Grievance
Procedure and/or Arbitration.
The Union, by its agents or officers, will not be liable
for damages in breach of contract in the event of a strike of
any kind, walk-out, slow-down, picketing, stay-in or work
stoppage of any type, or interference with production,
coercive or otherwise, in violation of this Agreement, which
the Union has not authorized and to which the Union has
used all reasonable efforts to prevent and/or terminate.
The Company agrees that there shall be no lock-out in
violation of this Agreement on its part.
The Respondent claims as a concession a revision of its
initial proposal for a posting of Union notices on a plant
bulletin board. The original proposal, mdentical with that in
the Federation agreement, follows.
The Company agrees to provide the Union with suffi-
dent space on the bulletin boards for the posting of Union
Notices, which shall be limited to announcing Union
election, Notices of meetings and recreational activities. All
notices must be approved by the Employer prior to posting.
During negotiations, Respondent agreed to delete "which
shall be limited to announcing Union elections, Notices of
meetings and recreational activities," but insisted on the
retention of the concluding sentence.
Also during negotiations, Respondent modified its proposal
for a 90-day probationary period by scaling it down to 75
days. The Union had counterproposed 30 days, agreed to pay
for holidays falling on a Saturday, though the employee did
not work on that day, or dunng a vacation period, and not to
penalize an employee injured on the job the day before or
after a holiday; agreed to notify the Union of layoffs but
otherwise adhered to its initial proposal on seniority and
grievances (the Union's later proposals on seniority and
grievance procedure were taken from this Respondent's con-
tract with another labor organization at its San Francisco
plant, but Respondent refused concessions pursuant to these
revised proposals), refused to consider the Union's proposal on
pensions, and rejected out of hand the Union's proposals on
health and welfare with the statement that Respondent's
existing plan was adequate, refused to modify its proposal that
an authorized union representative would be allowed to talk
with a shop steward or an employee with a grievance, only
after securing prior approval from the plant manager, and at a
place provided by the Company.
On the issue of wages, the Respondent announced at the
opening of negotiations that it would honor the commitment
made the Federation that it would grant a five cent increase,
and, at the Union's request, agreed to withhold the granting of
this increase during negotiations. It later offered an additional
1-cent and finally a 2-cent increase, as its counteroffer to the
Union's proposed 25 cent increase. The Union's proposed wage
scale was substantially less than that paid by this Company in
its San Francisco operations. Also, in order to promote
agreement on wages the Union agreed to delete from its
proposals certain cost items, such as pensions, jury duty, and
sick leave which the Company had already rejected, but this
brought no further modification in Respondent's wage offer.
At the conclusions of negotiations on August 21, Kinchloe
advised Ferguson that future meetings would be arranged
through FMCS. On the evening of August 21, the Union
reported to its members and the latter voted unanimously to
strike. The strike began on August 22.
A meeting, with a representative of FMCS in attendance,
occurred on August 25, and further than the fact that the said
representative conferred separately with each of the parties
there appears to have been no actual negotiations between the
parties at this meeting. Kinchloe testified that after the FMCS
representative had conferred with Ferguson he reported to the
Union that the meeting might as well be adjourned.
At the final meeting of the parties on September 1, also
arranged through FMCS, the Union submitted a contract
proposal in which it revived all the demands the Union had
abandoned in prior negotiations and submitted as its new
proposal on wages the wage scale Respondent was then paying
the employees at its San Francisco location.
On October 27, the Union by letter to the Respondent
suggested a meeting in San Francisco on November 3.
Ferguson replied by telegram that it was impossible to meet on
that date in San Francisco and suggested Los Angeles for the
STUART RADIATOR CORE MFG CO. 129
meeting. In early November Ferguson received a telephone call
from a Union representative suggesting a compromise location
for a meeting. Ferguson testified that he expressed a willing-
ness to meet in Fresno, California, but nothing came of it. It is
not at all clear to what additional extent, if any, the Union, or
the Union through FMCS, attempted to arrange for further
negotiations. None have been held
E. Alleged Anti-bargaining Statements
General Counsel's witness, Kenneth Yaple, testified that in
October, 1967, during the course of the strike, he asked
Foreman Darryl Tatum if he thought "the union was going to
come in." Tatum replied, "No." Shortly thereafter, after there
had been some strike violence, Yaple again solicited Tatum's
opinion, and Tatum said the "union would never come in,
because they ... used force." Tatum did not testify. Yaple
further testified that on an occasion in October, Supervisor
David Feldman called him to Feldman's office, asked him if he
had not been talking to Kenneth Green, a union representative,
outside of the plant and why he had crossed the picket line.
Yaple replied that he crossed the picket line because he needed
a job, and Feldman said he was hoping Yaple was with him,
would not go out and picket. With respect to Green, in
response to Feldman's query if Green had been "bugging" him,
Yaple replied that Green was just wondering why Yaple had
crossed the picket line. Continuing, Yaple testified, "Then we
got to talking about the union, and I asked him if he thought
the union would ever come in, and he said that as far as he's
concerned, they'd use force [presumably the Union would],
and he wouldn't sign a contract no matter what. He'd rather
see the place burn before he would sign a contract with the
union."
Feldman admitted that he had Yaple brought to his office
in October, and that he questioned him concerning an incident
of molestation involving pickets he had observed the previous
day, by asking him if he had been threatened or chased.
According to Feldman, Yaple denied having been molested,
referred to the pickets as his "buddies," and said that Green
had offered him $100 if he would try to get all the employees
out of the plant, an offer which he refused. He denied that
anything was said during the conversation pertaining to a
union contract, or burning the plant down. Assistant Manager
Robert R. Verhasselt, who testified that he was present during
the conversation between Yaple and Feldman, corroborated
Feldman to the extent of testifying that he did not recall
anything being mentioned during the conversation about a
union contract or burning the plant down. He did not recall
how long the conversation lasted, ten minutes, or thirty
minutes, or where Yaple was working at the time he
summoned him to Feldman's office.
Crediting Yaple on his conversation with Tatum I do not
see that it amounted to much. He asked for Tatuih' s opinion
and Tatum gave it. I also doubt that Feldman volunteered that
the Company would never sign a union contract, or that he
would burn the plant down first. Regardless of the Company's
willingness to sign a union contract covering its Merced
operations, or lack of it, I doubt that Feldman would have
singled out Yaple for stating the Company's position in such
vehement terms. In any event, in view of the Board' s recent
decision dismissing the complaint in W. L. Knight, d/b/a
Webster Outdoor Advertising Company, 170 NLRB No. 144, I
would not be able to attribute controlling significance in
determing the issue of good faith bargaining, or in fact any
significance to Yaple's testimony, standing alone, for in that
recent case the employer's president told the Union delegation
that "he wasn't going to sign no contract, [that] this wasn't
the North . . and that he would replace all of the employees,"
and on a later date, the employer's attorney stated that
continued bargaining would be pointless, that the employer
was satisfied with the replacements then in its employ and that
"it would be all over in June" when another election would be
held.
F. Concluding Findings
In support of its position that absent "from the instant case
are any of the criteria bottoming Board 8(a)(5) decisions," the
Respondent in its brief cites these facts no specious unit
questions, no declination to meet at reasonable times and
places; no attempts to dissipate the Union's majority status; no
undermining of the Union's authority to bargain, no direct
appeal to employees, no solicitations of strikers to return to
work; no unilateral actions by the Respondent in derogation of
the Union's bargaining authority, no discharges, threats,
intimidations, interrogations or promises constituting 8(a)(1)
or (3) violations.
Except that a refusal to bargain in good faith is an attempt
to dissipate a union's majority status, and undermines the
Union's authority to bargain, I agree to this statement of fact.
I might add that at the opening of negotiations, the Company
offered a union shop and a checkoff of dues, matters which
not infrequently bring about a stalemate in negotiations for a
contract. The significance of this offer, however, is qualified
by the fact that Respondent's abrogated contract with the
Federation included the same clauses covering this subject
matter that were offered the Union.
With due consideration of all the factors listed above, and
others favoring Respondent's position, I am nevertheless
convinced upon consideration of the entire evidence that here
we have a classic example of surface bargaining, with no desire
or intent on the part of the Company to reach a meaningful
agreement with the Union. Having abrogated its agreement
with the Federation in settlement of the Union's charge of 8(a)
(1), (2), and (3) violations, it offered substantially this
selfsame agreement, with certain modifications which made it
even more restrictive of a labor organization's discharge of its
bargaining obligations, and throughout negotiations rigidly
adhered-while making certain concessions which were for the
most part minor or altogether negligible-to its main and most
restrictive provisions. In its Management Rights clause it in
effect demanded that the Union yield its representative status
on such bargainable matters as transfer or subcontracting of
work affecting the bargaining unit, and rendered any oral
assurances in the matter meaningless by the addition-that is,
addition to its Federation contract-of clauses which would
make all oral assurances or commitments unenforceable, and
which would further strip the Union of a considerable degree
of its representative capacity by denying it the right to bargain
on any matter not covered by the Agreement, even though it
was not considered at the time the Agreement was negotiated,
or became a bargarnable matter during the term of the
Agreement, as a result of decisional change by the Board or the
courts, or a situation newly arisen which could not have been
foreseen during the period of negotiations.
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under the guise of concessions, it made such meaningless
gestures as an offer to exclude from the bargaining unit certain
classifications of employees the Union never claimed to
represent, and to insert, as a companion to its no-strike
proposal (identical with its Federation contract) a no-lockout
clause which in fact had no validity whatever since it merely
provided that the Company would engage in "no lock-out in
violation of this Agreement on its part" when there was in fact
no agreement not to engage in a lock-out A proposal phrased
in such terms smacks of bargaining sleight-of-hand and is not
to be excused on the grounds of inexperience or poor
draughtmanship since Respondent's negotiator was a seasoned
labor relations expert, a member of a prominent Los Angeles
firm. Further, because of Respondent's insistence on the
inclusion of its section 18.1 and 18.2, no oral understanding of
the parties could have superseded or been substituted for this
meaningless "no-lockout" provision.
Another so-called concession was the modification of its
arbitration clause to provide that the expense of arbitration be
shared by both parties, instead of borne solely by the loser as
initially proposed. With this "concession" the arbitration
clause in the Company's contract with the Federation was
reinstated. In other words, the Respondent agreed to retreat to
the position it held with a labor organization which vanished
without a trace when the Respondent settled the unfair labor
practices charges brought against it by the Union, a vanishing
act which would have challenged the ingenuity of Houdini.2 A
further so-called concession was the agreement to withhold,
during the period of negotiations, a 5-cent increase promised
the Federation, which was in fact no concession at all since the
effectuation of this increase during negotiations, without the
Union's consent, unless and until an impasse had been reached
on the wage issue , would in itself have constituted a refusal to
bargain. In fact, the only concessions of substance made by the
Respondent during the entire period of ntsgotiatlons were its
modification of its vacation with-pay proposal, and its
concession on its nostrike proposal to make certain matters
arbitrable which in its Federation contract were left solely to
the discretion of the Company.
I am aware of course that an employer is not required to
make any concessions whatever to establish its good faith in
bargaining, and the absence of concessions alone may not
ground a finding of a refusal to bargain, but such concessions
as an employer does make during negotiations may properly be
weighed to determine whether they constitute affirmative
evidence of good faith bargaining. As stated by the Court of
Appeals of the Fifth Circuit. "Bad faith is prohibited though
done with sophistication and finesse. Consequently, to sit at a
bargaining table, or to sit almost forever, or to make
concessions here and there, could be the very means by which
to conceal a purposeful strategy to make bargaining futile or
fail." NL.R B. v. Herman Sausage Company, Inc., 275 F.2d.
2 No allegations of company-domination were lodged against the
Federation, and accordingly no findings are made or remedy offered re
the Federation . Further, inasmuch as there was a settlement agreement
between the Respondent and the Union covering this matter, I held
some initial doubt, and expressed it at the hearing , whether I could take
the Federation 's status into consideration as background in deciding the
issues herein Upon mature consideration I have come to the conclusion
that it cannot be altogether ignored if we are to apply to the issue of
good faith bargaining any commonsense realism. One has only to read
Respondent's agreement with the Federation, with its Management
Rights clause , its no -strike provision which would enable the Company
229 (C A. 5). 1 find this language ideally applicable to the facts
here. Also it goes without saying that an employer does not
have to make contract proposals which will meet favor with a
union. Hard bargaining is always permissible. However, should
an employer propose and insist on a contract clause that left
substantially all bargainable matters to the discretion of the
employer, we would say without hesitancy that this employer
had no good faith intention of reaching an agreement. This
would not be hard bargaining. It would be no bargaining. The
Respondent here has not gone that far, but in my opinion it has
taken too many steps in that direction to be absolved of bad
faith bargaining All considered, it seems clear that the
Respondent insisted on substantially the same control over
bargainable matters as it had reserved to itself under its
agreement with the Federation, and in some respects more. All
considered, this was not good faith bargaining. "If the Board is
not to be blinded by mere talk, it must make some cognizance
of the reasonableness of the company's offers including those
which it must have known had not the slightest chance of
being accepted by a self-respecting union The employer by
holding to his unreasonable position in this area leads me to
believe that he had no intention of entering into good faith
bargaining with the union." N.L.R.B. v. Reed & Pnnce Mfg
Co., 205 F 2d 131, 139-140 (C A. 1), cert denied 346 U.S
887.
The Union's action on September 1 in withdrawing all the
concessions it had made during the course of bargaining, and in
proposing a higher wage schedule than that previously de-
manded, will no doubt be urged as rendering any remedy for
Respondent's refusal to bargain illogical and inequitable. The
reinstating of its original contract proposals by one or other of
the parties after a period of negotiations during which
concessions were made, can be, and under certain circum-
stances is, strong evidence of bad faith. Here, however, we have
a situation where the Union made numerous concessions by
agreeing to contract proposals which greatly restricted its
bargaining authority, concessions which can only be attributed
to inexperience and inexpertness on the part of its negotiator
or a strong desire to reach an agreement, even though on terms
which would have received outright rejection by most respon-
sible labor organizations, and by deleting most of its "cost"
item proposals, such as pensions, and modifying substantially
its demands on such bargainable matters of grievances and
seniority, while the Respondent rigidly adhered to the most
restrictive of its original proposals. Under these circumstances I
do not believe that the Union (that is to say the employees it
represents) should be prejudiced by its action on September 1,
but that a bargaining order should issue in order that the
Respondent shall not piofit from its unfair labor practices, and
its employees be given the benefit of bona fide bargaining.
Upon the basis of the foregoing findings of fact, and upon
the entire record in the case, I make the following
unilaterally to determine whether any individual employee had violated
it and to mete out any disciplinary action it unilaterally decided upon,
the absence of any no-lockout provision , and similar one-sided
commitments , to know that no self-respecting labor organization would
be a party to such an agreement The fact that the Respondent
attempted to impose this agreement , with additional restrictions, on the
Union, speaks for itself and cannot be ignored in a full and objective
appraisal of the actual bargaining situation. I must add , however, that
had Respondent 's agreement with the Federation been excluded, my
conclusions herein would be the same
STUART RADIATOR CORE MFG CO 131
CONCLUSIONS OF LAW
1. Respondent is an Employer within the meaning of
Section 2(2) of the Act, engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. All production and maintenance employees employed
by Respondent at its Merced, California, plant, excluding
office clerical employees, salesmen, guards and supervisors as
defined in the Act, constituted at all times material herein, and
now constitute, a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the
Act.
4. The Union was on April 15, 1967, and has been at all
tines material herein, the exclusive representative of all
employees in the aforesaid unit for the purposes of collective
bargaining.
5. By refusing on and after May 23, 1967, to bargain
collectively with the Union as the exclusive representative of
employees in the appropriate unit, the Respondent has
engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) of the Act.
6. By the said refusal to bargain, 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.
RECOMMENDED ORDER
Upon the entire record in the case, and pursuant to Section
10 (c) of the Act, it is hereby recommended that Respondent,
its officers, agents, successors, and assigns, shall
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union as the
exclusive representative of all its employees in the previously
described appropriate unit.
(b) In any like or related manner interfering with re-
straining or coercing its employees in the right to self-
organization, to form labor organizations, to loin or assist the
Union, or any other labor organization , to bargain collectively
through representatives of their own choosing, and to en-
gage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all such activities except to the extent that such
right may be affected by an agreement requiring membership
in a labor organization as authorized in Section 8(a)(3) of the
Act.
2. Take the following affirmative action designed to effec-
tuate the policies of the Act.
(a) Upon request bargain collectively with the Union as the
exclusive representative of its employees in the previously
described appropriate unit, with respect to rates of pay, wages,
hours of work, and other conditions of employment and, if an
understanding is reached, incorporate it in a signed agreement.
(b) Post at its plant in Merced, California, copies of the
notice attached hereto and marked "Appendix."3 Copies of
said notice to be furnished by the Regional Director for
Region 20, shall, after being duly signed by the Respondent's
authorized representative, be posted by the Respondent
immediately upon receipt thereof and maintained by them for
a period of sixty (60) days thereafter in conspicuous places,
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director for the Region 20, in
writing, within 20 days from the date of the receipt of this
Decision, what steps Respondent has taken to comply here-
with .4
3 In the event that this Recommended Order be adopted by the
Board, the words "a Decision and Order" shall be substituted for the
words "The Recommendations of a Trial Examiner " in the notice In
the further event that the Board 's Order be enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United
States Court of Appeals Enforcing an Order" shall be substituted for the
words "A Decision and Order."
4 In the event that this Recommended Order be adopted by the
Board, this provision shall be modified to read "Notify said Regional
Director, in writing, within 10 days from the date of this Order, what
steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner
of the National Labor Relations Board and in order to
effectuate the policies of the National Labor Relations Act (as
amended) we hereby notify our employees that
WE WILL NOT refuse, upon request, to bargain collec-
tively with Operating Engineers Local Union No. 3,
International Union of Operating Engineers, AFL-CIO, as
the exclusive representative of all our employees in the
appropriate unit described below.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of their
right to self-organization, to bargain collectively through
representation of their own choosing, to engage in con-
certed activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all
such activities, except to the extent that such right may be
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, as amended.
WE WILL, upon request, bargain collectively with the
above-named labor organization as the exclusive bargaining
representative of all employees in the following unit with
respect to rates of pay, wages, union security, hours of
work, and other conditions of employment and if an
understanding is reached embody such understanding in a
signed agreement. The bargaining unit is:
All our production and maintenance employees at our
Merced, California plant, excluding office clerical em-
ployees, salesmen, guards and supervisors as defined in
the Act.
STUART RADIATOR CORE
MANUFACTURING CO., INC.
(Employer)
Dated By
(Representative) (Title)
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This Notice must remain posted for 60 consecutive days compliance with its provisions, they may communicate di-
from the date of posting, and must not be altered, defaced, or rectly with the Board's Regional Office, 13050 Federal
covered by any other material. Building, 450 Golden Gate Avenue, Box 36047, San Francisco,
If employees have any question concerning this Notice or California 94102, Telephone 556-0335.