Union Carbide Corp.

National Labor Relations Board - Board Decisions

Jun 9, 1967

165 N.L.R.B. 254 (N.L.R.B. 1967)

254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union Carbide Corporation, Mining and
Metals Division and Oil, Chemical and
Atomic Workers International Union,
Local 3-89, AFL-CIO.' Case 9-CA-3949.
June 9,1967
DECISION AND ORDER
By MEMBERS FANNING, BROWN, AND JENKINS
On October 14, 1966, Trial Examiner
George J. Bott issued his Decision in the above-
entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief.2 The General Counsel filed a reply
brief in support of the Trial Examiner's Decision.
The Charging Party filed limited exceptions to the
Trial Examiner's Decision, with a brief in support
thereof.
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, briefs, and the
entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent
herewith.
As described more fully in the Trial Examiner's
Decision, the Respondent and the Union have been
parties to successive collective-bargaining
agreements covering the bargaining unit employees
at the Respondent's plant in Alloy, West Virginia,
for some 20 years. These so-called basic agreements,
establishing the basic terms and conditions of
employment, including wages, hours, and vacations,
have generally been executed for 2-year terms. The
last such agreement, by its terms, expired at
12:01 a.m. on July 2, 1966.
Since 1950, when health, pension, and other
insurance benefits were first made available to
Respondent's unit employees,3 the parties have also
maintained successive parallel contracts covering
Herein called the Union
Respondent also filed a Motion to Reopen the Record and
Receive Further Evidence, which was opposed, in separate
memoranda, by the General Counsel and the Charging Party In
view of our findings, conclusions, and disposition of this case, as
set forth below, Respondent's motion is hereby denied
these benefits. These so-called pension-insurance
agreements have traditionally been executed for 5-
year terms. In the past, however, the parties have
modified the pension-insurance agreements in
midterm and thereupon extended them for new 5-
year periods. The current pension-insurance
contract, by its terms, remains effective until July 2,
1967.
The events herein involve the negotiations for a
new basic agreement, to succeed the one which
expired on July 2, 1966. Pursuant to the provisions of
the then current basic agreement, the Union notified
the Respondent on April 29, 1966,' of its desire to
negotiate modifications in that agreement, at the
same time giving notice to the appropriate Federal
and State mediation agencies, as required by
Section 8(d) of the National Labor Relations Act, as
amended. Negotiations began on May 12, and at
their second bargaining session on May 18 the Union
presented Respondent with 54 written demands.
Between May 12 and June 29, the parties held 16
bargaining sessions, in which the Union's demands
and the Respondent's counterproposals were
reviewed and discussed. In the course of these
meetings the Respondent, in addition to making
various separate concessions with respect to the
Union's demands, offered three "package"
proposals for settlement. The Respondent's first and
last "package" offers of June 2 and 29, respectively,
included, among other items, an improved vacation
plan and improved benefits under the pension-
insurance agreement, with an extension of the latter
agreement for a new 5-year period. The second
"package" proposal, made on June 28, on the other
hand, contained neither the vacation plan nor the
improved pension-insurance provisions, but
increased the wage offer previously made by
Respondent. The Union accepted none of
Respondent's individual or "package" proposals,
nor did it offer any compromise solutions. It merely
indicated that the various proposals were
insufficient and below the Union's expectations.
Thus, on July 1, when the Union rejected the
Respondent's "final package" proposal of June 29,
the parties reached an impasse in their negotiations.
And, on July 2, after the current basic agreement
expired, the Respondent closed its plant and locked
out its employees.
The Trial Examiner concluded that Respondent,
by the above conduct, violated Section 8(a)(5), (3),
and (1) of the Act. We find merit in Respondent's
exceptions to that conclusion. For the reasons fully
set forth by him, we agree with the Trial Examiner's
' Prior to 1950 the pension-insurance benefits were available
only to Respondent's nonumt employees, i e , the employees at
Respondent's approximately 100 plants who are not represented
by labor organizations, and the nonbargaining unit employees at
Respondent's various organised plants
a Unless otherwise indicated, all dates are in 1966
165 NLRB No. 26
UNION CARBIDE CORP.
finding that the pension-insurance agreement,
having an effective date to July 2, 1967, was not a
mandatory subject of bargaining during the 1966
basic contract negotiations herein, and that the
Union, therefore, was not required to bargain about,
nor could the Respondent lawfully insist upon, any
modifications thereof.
We do not agree, however, with the Trial
Examiner's further finding that Respondent
unlawfully insisted to the point of impasse on union
acceptance of the nonmandatory demand, or that
Respondent thereafter locked out its employees for
that purpose. In our view, the facts herein do not
establish that Respondent unlawfully insisted upon a
nonmandatory bargaining demand. To the contrary,
we find Respondent's entire course of conduct
during the negotiations was aimed at the single
purpose of reaching a settlement on the terms of a
new basic contract before the current agreement
expired on July 2; that Respondent proposed
improvements in the pension-insurance agreement
in an effort to speed, rather than frustrate, the
negotiations toward settlement; and, that the
lockout, therefore, after impasse was reached on
issues other than the pension-insurance matter,
constituted permissible pressure in support of
Respondent's legitimate bargaining position.5
The statutory obligation to bargain collectively is
defined in Section 8(d) as ". . . the performance of
the mutual obligation of the employer and the
representative of the employees to meet at
reasonable times and confer in good faith with
respect to wages, hours, and other terms and
conditions of employment ... but such obligation
does not compel either party to agree to a proposal or
require the making of a concession .... It is well
settled, however, that this obligation to bargain does
not mean that bargaining must be confined to the
statutory sublects.6 Either party may lawfully
propose nonmandatory bargaining items. Neither
party may insist, however, nor condition its
bargaining or the execution of any agreement, upon
acceptance of such demand by the other party.7 The
Respondent, therefore, did not violate its duty to
bargain in good faith when, on June 2, it initially
proposed certain modifications in the current
pension-insurance agreement. Nor was it unlawful
insistence for Respondent to refer to its June 2
"package" offer during two subsequent bargaining
sessions when the Union's wage and vacation
demands were discussed. For, the Union had not
expressly and unequivocally rejected that offer or
the nonmandatory bargaining demand contained
therein. After Respondent presented its "final offer"
on June 29, the union negotiators for the first time
declared their opposition to Respondent's injection
of the nonmandatory issue into the basic contract
negotiations. In these circumstances, however, it
can hardly be said that Respondent's insertion of the
nonmandatory subject in its "final offer" of June 29
255
constituted unlawful insistence in the face of a clear
and express refusal by the Union to bargain about
the pension-insurance modifications.8
As set forth by the Trial Examiner, Respondent
made repeated concessions, both separately and in
"package" form, on the Union's 54 demands in its
effort to speed a settlement of the contract dispute
before the current basic agreement expired on
July 2. On the other hand, the Union, after 16
bargaining sessions, had neither receded nor offered
to compromise with respect to its original demands.9
It is clear, therefore, that the parties were far from
reaching agreement on the basic terms of the new
contract. And, when the Union rejected
Respondent's "final offer," on the eve of the current
agreement's expiration date, the impasse in
bargaining was inevitable.
In view of all the facts and circumstances,
including the long bargaining history of the parties,
we are persuaded that the inclusion of the
nonmandatory bargaining demand in Respondent's
June 29 "package" was not a factor in causing the
impasse. Accordingly, it has not been established
that Respondent insisted on the nonmandatory
bargaining demand to the point of impasse. And, we
are equally convinced that Respondent did not
employ the subsequent lockout for the unlawful
purpose of obtaining the nonmandatory bargaining
item or otherwise to frustrate or under mine the
Union's position as the bargaining representative of
Respondent's employees.
Having found that the Respondent's conduct
during the negotiations, including the lockout after
impasse in bargaining was reached, was not
unlawful,10 we shall dismiss the complaint in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
The American Ship Building Company v N L R B, 380 U S
300
NLRB v Wooster Division of Borg-Warner (orp , 356 US
342
Ibid
8 Cf, District 50, United Mine Workers of America (Central
Soya Company, Inc), 142 NLRB 930,939
" The Union had withdrawn 2-1/2 of its 30 original so-called
noneconomic demands, adhering, however, to all of its original 24
economic requests However, on June 28, the Union presented
three entirely new demands which, for that reason, were promptly
rejected by Respondent
" The American Ship Building Company, supra
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE J. BOTT, Trial Examiner: Upon charges of
unfair labor practices filed by the above-named Union on
June 10 and 17, and July 22 and 25, 1966, against Union
Carbide Corporation, Mining and Metals Division, herein
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sometimes referred to as Respondent or Company, the
General Counsel of the National Labor Relations Board
issued a complaint and notice of hearing dated July 26,
1966, alleging that Respondent had engaged in unfair labor
practices in violation of Section 8(a)(1), (3), and (5) and 8(d)
of the National Labor Relations Act, as amended, herein
called the Act. On August 8, 1966, Respondent filed an
answer admitting certain allegations of the complaint but
denying the commission of any unfair labor practices, and
a hearing was held before me in Charleston, West
Virginia, on August 29, 1966, at which all parties were
represented. Subsequent to the hearing, General Counsel
and Respondent filed briefs which have been carefully
considered.
Upon the entire record in the case, and from my
observation of the witnesses who appeared before me, I
make the following:'
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent is a New York corporation engaged in the
manufacture of ferro alloys and metals at its plant located
at Alloy, West Virginia. During the year preceding the
issuance of the complaint, which is a representative
period, Respondent had a direct inflow of products, in
interstate commerce, valued in excess of $50,000, which it
purchased and caused to be shipped from points directly
outside the State of West Virginia to its Alloy, West
Virginia, plant.
Respondent concedes and I find that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Oil, Chemical and Atomic Workers International Union,
Local3-89 , AFL-CIO (herein Union), is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Basic Findings
Although only the alloy plant of the Mining and Metals
Division of Union Carbide Corporation is directly involved
in this proceeding, some additional facts about the Union
Carbide Corporation, its Mining and Metals Division and
their labor relations, are in order to aid in understanding
the issues. Union Carbide Corporation has 12 major
divisions and about 200 plants. The corporation itself deals
' The Acting Regional Director of Region 9 of the Board
petitioned under Section 100) of the Act for a temporary
injunction restraining the allegedly illegal conduct pending final
disposition of the mattters involved herein before the Board and
an evidentiary hearing was held in the United States District
Court Southern District of West Virginia before the Honorable
John A Field, Jr , United States District Judge, on August 1, 2,
and 3, 1966 The court denied the petition The record in the case
before me consists of the transcript of the testimony taken before
the court in the 10(j) proceeding and most of the exhibits in that
case, all of which were presented in this case by stipulation of all
the parties In addition, the parties, as permitted by their
stipulation , supplemented the 100) record with additional
testimony and exhibits.
2 The complaint alleged, and the answer admits that "all hourly
rated employees" employed at the Alloy works, with certain
exceptions, constitute an appropriate bargaining unit within the
with approximately 24 unions in more than 100 organized
plants. The Mining and Metals Division is a major division
of the corporation with five production units at Portland,
Oregon, Astabula, Ohio, Marietta, Ohio, Sheffield,
Alabama, and Alloy, West Virginia, the plant involved
herein. All of the plants in the Mining and Metals Division
are organized-three have the United Steelworkers, and
two, those at Alloy and Marietta, the Charging Union. The
Alloy plant has about 1,200 production and maintenance
employees represented by the Union.
At each of the Corporation's approximately 100 plants
which have unions, bargaining is done on the basis of a
single-plant unit usually established by a certification from
the Board covering said plant.
Respondent and the Union have been parties to
collective-bargaining contracts covering the bargaining
unit at the Alloy plant for about 20 years.2 It is important to
note at the outset that it has been the practice since 1950
when the first pension-insurance agreement was instituted
to have two labor contracts running side by side, one, the
so-called basic agreement, which corers wages. hours, and
other working conditions, and, the other, an agreement
covering pensions and insurance and medical benefits,
which may be described for convenience as the pension-
insurance plan or agreement. Historically, the basic
agreement and the pension-insurance agreement have
been for different terms, the basic contract running for 2
years and the pension-insurance contract for 5, but it is
also a fact that the pension-insurance agreement has been
voluntarily reopened and renegotiated during its term on
three occasions in the past at the request of one or the
other of the parties. This occurred when the Union
Carbide Corporation improved benefits under the pension-
insurance plan for the employees at the 100 unrepresented
plants and for nonunit employees at organized plants.
The basic labor agreement was due to expire on July 2,
1966, unless automatically renewed for yearly periods by
failure to give appropriate notice. On April 29, 1966, the
Union notified the Company that it wanted to negotiate
modifications of the agreement, and it also notified the
Federal Mediation and Conciliation Service and the State
Labor Relations Board of the "dispute" in accordance
with the requirements of Section 8(d)(3) of the Act. The
pension-insurance agreement would not expire until
July 2, 1967, according to its terms, and the Union made no
reference to this agreement in its notice to the Company
and the State and Federal labor services.3
The Company and the Union held their first bargaining
session for the purpose of negotiating a new agreement on
May 18, 1966, at which time the Union presented 54
written demands. Approximately 16 meetings were held in
meaning of Section 9(b) of the Act It is also undisputed that the
Union has been at all times material the statutory representative
of employees in said unit
9 The Company suggests that there is language in the pension-
insurance agreement which, if reference is made to the language
in prior agreements, permits the Company to require the Union to
bargain about pensions and insurance during the term of the
agreement, but the Company concedes in its brief that "It is not
contended, however, that the Company's representatives had this
contract language in mind during 1966 negotiations, or viewed
themselves as being in a position to insist upon modification of the
pension - insurance agreement in these negotiations " In view of
these somewhat inconsistent positions, I have examined the
language referred to, and, in my opinion, Respondent wisely does
not rely on the contract as a defense, for there is nothing in the
existing pension-insurance agreement which permits the
Company to open it for bargaining before its expiration date
UNION CARBIDE CORP. 257
all before the parties reached a deadlock on July 1. The
time at most of the meetings was spent reviewing and
discussing the Union's noneconomic demands, which the
parties had agreed would be disposed of first, and these
meetings are not of major importance. However, certain
statements, proposals, and responses about a vacation
plan and a pension-insurance agreement made at some of
the meetings bear directly on the major issue in the case,
and, because of their particular significance, will be set
out in some detail.
By the end of May, the Company had given the Union
written responses to the Union's noneconomic demands,
and the parties continued to discuss the issues raised by
them. On June 2, at the sixth meeting, the Company orally
made what it called an "initial proposal for settlement"
which was a "package" proposal containing certain
economic concessions. The proposal included an
improved vacation plan which the Company was installing
for all nonrepresented employees in the 1966 vacation
period; an improved pension-insurance plan which the
Company had announced and installed for all its
nonrepresented employees in January 1966; a graduated
wage increase; a ninth holiday; a basic agreement for 2
years, and, however, an extension of the pension-
insurance agreement for 5 years.4
It is clear that the Respondent's June 2, 1966,
"package" proposal, at least as first presented to the
Union, made union acceptance of the improved vacation
offer dependent upon it also agreeing to take the improved
pension-insurance plan with a 1971 termination date. John
L. Frank, International representative of the parent
International Union, who headed up the Union's
bargaining committee, testified that J. N. Miles,
Respondent's chief negotiator, stated when he made the
proposal that ". . . the offering and acceptance of the
vacation plan is contingent upon your accepting a modified
pension plan with a termination date of 1971." Miles
conceded that as he was presenting the offer to the Union
in the morning session he said, "so there will be no
mistake, the vacation plan and the pension and insurance
plan are tied together," but he also said that during the
afternoon session John Graham, assistant manager for
industrial relations for the Division, "corrected" the
statement by commenting that "We did present the
pension and insurance agreement for five years and the
vacation plan improvements as a package. Vacations as
proposed would result in a substantial cost.5 However, the
Union does have the right to accept the package or to
bargain as they see fit." Frank did not recall that Graham
made the "exact statement" quoted, but he agreed that
Graham said "something to that effect" and that "perhaps
they could be separated." I find that Respondent did give
some indication during the afternoon meeting of June 2
that its "package" offer was not rigid.
The Union rejected the Company's June 2 offer. Frank
said it was refused because vacations and pensions were
tied together. Miles agreed that Frank objected to the
"injection" of the pension issue into bargaining, but he
said that Frank also stated at the time that the wage offer
was insufficient.6
The parties continued to meet at regular intervals, and
the next session at which the subject of vacations and their
relation to pensions and insurance was mentioned was
held on June 13. At this meeting, when the parties reached
for discussion the Union's demand for improved vacations,
the Respondent's negotiators reminded the union
committee of the Company's outstanding June 2
"package." Frank commented that he understood that
offer, as it concerned improved vacations, was tied to the
acceptance of the extended pension-insurance agreement,
but Miles reminded him that Graham had "corrected that
statement" later. Miles told the union negotiators that the
Company was willing to bargain on any of the Union's
proposals as well as about the "package proposal," and
said that although the pension-insurance agreement and
new vacations were in the "same package," they were not
"tied" together. Miles also told the Union at that time that
the Respondent wanted to make the new and better
pension-insurance plan available to the employees
represented by the Union as soon as possible, but was
willing to postpone the benefits until 1967, "if that is your
wish." Frank asked about the Union's demand for
improved vacations, which was somewhat better than the
Respondent's improved plan, and Miles responded that
Respondent's proposal "goes far enough." The Union
again rejected the Respondent's "package" proposal at
this meeting.
During a negotiating session held on June 21, the June 2
"package" was brought up again . As the parties were
reviewing certain union demands and reached the Union's
wage demand, Miles once more reminded the union
negotiators of the June 2 offer. He told them that the
Company at that time had made "a substantial initial offer
for an early settlement" which ". . . included vacation
improvements to begin this year, a substantial wage
increase, a ninth holiday, an improved pension and
insurance plan for 5 years and a precommitted increase for
next year," and he accused the union representatives of
not making a perceptible "movement" away from their
demands. Miles argued the Company's position about the
need to put the pension- insurance plan into effect
immediately, and Frank suggested that, if the Respondent
wanted to, it could put the plan into effect and still give the
Union the right to renegotiate it at the expiration of the
existing pension-insurance agreement in 1967,' but Miles
' In January 1966, after the Company had improved its vacation
policy for nonunit employees, the Union asked the Company to
discuss the possibility of having such an arrangement
incorporated in the basic labor agreement Although there was no
statutory duty to discuss this matter , the Company did so The
Company offered the new vacation plan to the Union, but it also
proposed acceptance of the new pension -insurance agreement
which it had also recently installed The Union did not agree, and
nothing was heard of this matter again until during the
negotiations for a new contract herein
5 During negotiations Respondent valued its vacation proposal
at 6-1 /2 cents per hour
" The fact that the Union listened, did not object to, or even
discussed company proposals about pension - insurance is not
particularly significant if the subject was a nonmandatory
bargaining matter . There is no waiver created in doing so See
cases cited in fns 14 and 19, infra It should also be noted that the
Union charged the Respondent with an unfair labor practice on
June 10, 1966, by "Failure to bargain on vacation plan without
making it contingent upon Union accepting Company pension and
insurance plans which are not open for negotiations until 1967 "
' Graham, a member of Respondent's negotiating team, argued
that "eighty percent of the hourly rated employees of Union
Carbide have the benefits of this plan now . and the company
had the right to let you know it is available and to give you the
opportunity to take these benefits now." He added that " we
can't force you to take them " Frank commented that he was fed
up with hearing about how he was depriving employees of these
benefits, and he accused the company of "trying to belittle and
harass" him
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demurred, stating that such was not the Company's
proposal, because the proposal was to put the plan in
effect and extend its expiration date for 5 years. Additional
discussion of the Company's pension-insurance proposal
took place, and, at one point, Frank noted that the
Company had not always in the past insisted on a 5-year
extension of the pension-insurance agreement. Miles
asked Frank if the Union had a counterproposal on
duration of the pension-insurance agreement, and Frank
told him the Union had not, because it had not ". . . really
considered it because [it] didn't think it was bargainable
but we surely will let you know."
The Union and the Company continued to meet for
bargaining, and on June 28 the Respondent offered the
Union another "package" proposal for settlement which it
described as "an alternative offer." In its "alternative
offer" the Company increased its wage proposal by 1 cent
per hour in the various wage brackets, repeated the
additional holiday proposal, and made certain concessions
on noneconomic issues which are not of any particular
legal significance here. It is important to note, however,
that the proposal contained nothing about the pension-
insurance agreement, but, on the other hand, neither did it
include any proposal about improved vacations. It was
agreed at the hearing that the Company had put a price tag
of 6-1/2 cents per hour on the improved vacation plan
which it had offered earlier. Miles testified that Frank
asked, "What about the vacation plan," after he made his
proposal, and when he replied that it was not included in
the package, Frank retorted that, "It looks like we're
moving backwards rather than forward." The Union
agreed to consider the offer, nevertheless, but it rejected it
during an afternoon session, according to Miles, because
"the money offer is unsatisfactory" and "the holiday
proposal is insufficient."
On June 29, 1966, during a bargaining meeting, Miles
said he would like to "announce and explain a final offer
for settlement." The terms of the offer were presented in
writing, but Miles' accompanying statement was not, and
Frank asked him for a copy of it. Miles then read it slowly,
and Frank recorded it. The announcement, as recorded by
Frank, which is in evidence, and about which there is no
dispute, reads:
This is a complete and final package, to settle all
issues raised during the course of the negotiations.
It is not to be juggled, would not pull out anything or
put in something else.
Unless this Committee agrees by Friday at 4:00 P.M.
July 1, 1966, to this offer and will recommend it to
their Membership at a ratification meeting scheduled
no later than Tuesday, July 5, 1966, we will start to
shut down the plant at 4:00 P.M. Friday, July 1, 1966,
and will complete the shutdown at 12:01 A.M.,
Saturday, July 2.
We expect your full cooperation with us in the
protection of our equipment and facilities.
We are just as much aware of the I.U.D. Program, by
what we have heard and what we have read, as you
" I find that Frank did not ask whether there was any company
proposal which did not have as a part of it an extension of the new
pension-insurance plan Frank's notes did not reflect this, he was
not positive that he had asked such a question, and his testimony
in the 100) proceeding makes no reference to it
" As the union negotiators left the June 29 meeting, where they
had just received the Company's "final offer," company guards
are. We do not intend to be in the position of trying to
operate this plant under conditions as we understand
them to be. As I said, we are aware of the I.U.D.
Program, and it does not make sense to continue
operations on this basis without a work agreement.
Summarized, the Company's "complete and final
package" provided for another 2-cent-an-hour
improvement in the earlier wage proposal in all brackets,
an additional holiday, improvement in the funeral leave
provision of the agreement and some other changes in
contract language governing certain noneconomic issues.
In addition, the offer again contained-as had the June 2
"package"-the improved vacation benefits and the
improved pension-insurance plan. The basic contract
would run until July 2, 1968, and the improved pension-
insurance agreement until July 1971, according to the
proposal.
Some conversation occurred and some comments were
made by the negotiators after Miles made his
announcement. There is what seems to me to be a minor
dispute here over emphasis, and I find as follows: Frank
asked if the Company were closing the door to future
bargaining, and Miles said it was not. Frank accused the
company negotiators of having "injected into their
negotiations subject matter not subject to bargaining," and
he asked if the improved vacation plan was available
without the pension-insurance plan, to which Miles
replied, "You have our final package.""
The Union rejected the Company's June 29 proposal" in
a hand-delivered letter of July 1 in which it also offered,
. to continue negotiations and to continue working
under an extension of the existing Agreement subject to
the right of either party to terminate the extension by
forty-eight (48) hours written notice to the other party."
The Company, on July 5, by mail, refused the offer to
extend the agreement, but stated its willingness to
continue negotiations.
The labor agreement expired, and the Respondent shut
the plant down on July 1.
On July 5, 1966, during the shutdown, the parties held
their last meeting in the presence of a Federal conciliator.
At this meeting, the Company offered to extend the labor
agreement to July 2, 1968, "on terms they had last
proposed," according to Frank's undenied testimony,
which I credit. No other meetings had taken place at the
time of the hearing before me, and the plant was still
closed.10 In the meantime, however, employees
represented by unions at other plants of the Mining and
Metals Division had gone on strike.
B. Analysis, Additional Findings and Concluding
Findings
Broadly stated, the question is what was the legal effect
of Respondent's insertion of its pension-insurance
proposal into collective bargaining, because it is not
contended that without such conduct Respondent's
bargaining position was legally contaminated, even as
implemented by the July 1 lockout. In more detail, the
complaint alleges that Respondent refused to bargain in
were distributing a letter to employees from Respondent's works
manager stating the terms of the proposal and the shutdown
action which the company contemplated if the offer were not
recommended to employees by the committee
"' In written communications to employees on July 6 and 8,
1966, the Company, among other things, repeated the June 29
proposal for settlement and argued for its acceptance
UNION CARBIDE CORP
good faith with the Union by: (a) conditioning bargaining
with the Union for a new contract upon acceptance of
Respondent's "package offer" of June 29, which
contained a subject not open for bargaining at the time;
namely, the pension- insurance agreement covered by the
contract between the parties until July 2, 1967, (b) locking
out all employees without complying with the
requirements of Section 8(d)" of the Act, (c) advising
employees that Respondent would shut its plant down if
the Union did not agree to recommend to employees that
they ratify and accept Respondent's "package offer" of
June 29, 1966, and (d) locking out employees in order to
coerce them to abandon the Union's contract demands and
accept the terms of the final offer made by Respondent on
June 29,1966.
Respondent' s position is that it did not condition
bargaining with the Union on acceptance of a proposal
which was a nonmandatory subject of bargaining, namely,
the pension- insurance agreement, or lock out its
employees for the purpose of achieving its acceptance.
Rather, says Respondent, all the elements in its proposals
were bargainable , the parties arrived at an impasse on
July 1, 1966, and Respondent closed its plant not to force
the acceptance of an offer which was outside the
legitimate scope of collective bargaining , but to hasten
arrival at agreement with the Union which was itself
bargaining in bad faith by stalling negotiations in order
that all contracts in the Division would expire and
Respondent be required to bargain on a multiplant basis.
In substantial part, Respondent justifies its action under
American Ship Building Co. v. N.L.R.B., 380 U.S. 300, but
General Counsel counters by arguing that if an "impasse"
existed it was occasioned by Respondent's improper
demands and that the lockout was not, therefore, in
support of Respondent's "legitimate" bargaining position
which he says is essential for the invocation of the
American Ship Building holding.
Section 8(a)(5) of the Act makes it an unfair labor
practice for an employer to refuse to bargain collectively
with a union representing his employees in an appropriate
unit. Section 8(d) of the Act defines this duty, in relevant
part, as follows:
... where there is in effect a collective-bargaining
contract ... the duty to bargain collectively shall also
mean that no party to such contract shall terminate or
modify such contract, unless the party desiring such
termination or modification-
(1) serves a written notice upon the other party
to the contract of the proposed termination or
modification sixty days prior to the expiration
date thereof, or in the event such contract
contains no expiration date, sixty days prior to
the time it is proposed to make such termination
or modification;
" There is no Section 8(d)(3) issue about failure to notify
appropriate agencies of the existence of a dispute
N L R B v Lion Oil Company, 352 U S 282, 285
" N L R B v Wooster Division of Borg-Warner Corporation,
356 U S 342, 349, where the Supreme Court stated
The Company's good faith has met the requirements of the
statute as to the subjects of mandatory bargaining But that
good faith does not license the employer to refuse to enter
into agreements on the ground that they do not include some
proposal which is not a mandatory subject of bargaining We
agree with the Board that such conduct is, in substance, a
refusal to bargain about the subjects that are within the scope
of mandatory bargaining This does not mean that bargaining
is to be confined to the statutory subjects Each of the two
259
(2) offers to meet and confer with the other
party for the purpose of negotiating a new
contract or a contract containing the proposed
modifications;
(3) notifies the Federal Mediation and
Conciliation Service within thirty days after such
notice of the existence of a dispute, and
simultaneously therewith notifies any State or
Territorial agency established to mediate and
conciliate disputes within the State or Territory
where the dispute occurred, provided no
agreement has been reached by that time; and
(4) continues in full force and effect, without
resorting to strike or lockout, all the terms and
conditions of the existing contract for a period of
sixty days after such notice is given or until the
expiration date of such contract, whichever
occurs later:
The duties imposed upon employers, employees, and
labor organizations by paragraphs (2), (3), and (4) ...
shall not be construed as requiring either party to
discuss or agree to any modification of the terms and
conditions contained in a contract for a fixed period, if
such modification is to become effective before such
terms and conditions can be reopened under the
provisions of the contract.
It is settled that a violation of Section 8(d)(4) constitutes
a refusal to bargain; if committed by an employer, it is a
violation of Section 8(a)(5); if by a union , a violation of
Section 8(b)(3).11 It is equally well settled that neither
party in the course of collective bargaining can condition
willingness to negotiate or contract about matters which
are within the area of compulsory bargaining upon the
other party's acceding to demands which are outside that
area.' •t
It is conceded that Section 8(d) of the Act as interpreted
removed the pension-insurance agreement from the scope
of mandatory bargaining , since it would not expire by its
terms until 1967, and that Respondent was required to
continue in full force and effect, without resorting to a
lockout, all the terms and conditions of the pension-
insurance agreement until its expiration date. It also
follows that that insistence to a point of impasse on a
modification of that agreement would constitute a refusal
to bargain even in the absence of a lockout.'`
Under the cases it is not essential for a finding of a
refusal to bargain that the only cause of an impasse be a
party's insistence upon nonmandatory proposals or that a
strike or a lockout have as its sole end or object the
attainment of discussion or agreement on issues outside
the scope of required bargaining .15 This has been well
established in cases where unions have struck without
complying with the procedural requirements of
controversial clauses is lawful in itself Each would be
enforceable if agreed to by the unions But it does not follow
that, because the company may propose these clauses, it can
lawfully insist upon them as a condition to any agreement
'a N L R B v Borg-Warner, supra, fn 13, N L R B v Lion Oil
Company, supra, fn 12, Mastro Plastics Corp v N L R B , 350
U S 270, 286, McLeod v Compressed Air, Tunnel, etc , Workers
(Catapono-Crow), 292 F 2d 358 (C A 2), Milk, Ice Cream Drivers
and Dairy Employees, Local 783 (Cream Top Creamery), 147
NLRB 264 This is also apparent from the plain words of Section
8(d)(4) and the last paragraph of Section 8(d), set out in the text
II N L R B v Borg-Warner, supra, fn 13, Industrial Union of
Marine & Shipbuilding Workers (Bethlehem Steel Co ) v
NLRB.,320F2d615,at618(CA 3)
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(d),'6 and, in view of the mutuality of obligations
as defined in that section," it seems safe to assume that a
lockout which has as one of its ends change or
modification of an agreement which need not be bargained
about by the other party under Section 8(d) would violate
the Act."'
Respondent's whole course of conduct in this case,
including its actions and statements during bargaining and
the lockout itself, was equivalent to insistence upon union
acceptance of an altered pension-insurance plan as a
condition of settlement. Even though it is well known that
in this field, as in the market place generally, or even in
international diplomacy, that words like "ultimatum,"
"dependent," "contingent," "package," or "final and
complete," are not always to be taken literally, neither can
Respondent's own plain words to the Union and employees
describing what it wanted be ignored; and its statements
just before and right after the lockout are most significant.
Admittedly, when, on June 29, 1966, Miles handed the
Union the Company's "complete and final package,"
which contained an extension of the pension-insurance
agreement for 5 years, he said the offer was "not to be
juggled" and that the Company would not "pull anything
out or put something else in," and, in addition, unless the
Union agreed promptly to recommend the offer to the
membership, the Company would immediately shut down.
This quoted language sounds and looks like an
"ultimatum," and even the sophisticated would agree that
at least it appears to be "insistence." If Respondent's
offer was not meant to be inflexible and the pension-
insurance portion of it not an essential ingredient of
settlement, it had an opportunity to clarify its position
when Frank asked if the improved vacation plan was
available without the pension-insurance agreement, but
Miles only said, "You have our final package."
If Respondent were bluffing and if, as Respondent
urges, there was an alternative offer open and its "final"
offer was negotiable, all its actions continued to point the
other way, because, as the union negotiators left the
June 29 meeting, company guards were distributing letters
to employees stating in detail the "package offer" just
given the Union containing the proposed change in the
pension-insurance agreement and announcing "an orderly
shutdown of the plant late in the afternoon of July 1" if the
Company's offer was not recommended by the union
negotiating committee to the employees for ratification.
This announcement contained no alternatives, no
16 Local No 156, United Packinghouse Workers of America,
AFL-CIO (Du Quoin Packing Company), 117 NLRB 670,
International Union United Mine Workers of America
(Westmoreland Coal Co), 117 NLRB 1072, 1075, Milk, Ice Cream
Drivers and Dairy Employees, Local No 78.3, etc (Cream Top
Creamery), 147 NLRB 265
11 N L R B v Insurance Agents' International Union
(Prudential Ins Co ), 391 US 477
'" Section 8(d) was added to the Act by the 1947 Taft-Hartley
amendments Senator Taft summarized these provisions as
follows (93 Cong Rec 6860, 2 Legislative History of the Labor
Management Relations Act, 1625) (GPO 1948)
either party to a contract may refuse to change its terms
or discuss such a change to take effect during the life thereof
without being guilty of an unfair labor practice Parties may
meet and discuss the meaning of the terms of their contract
and may agree to modifications on change of circumstances,
but it is not mandatory that they do so
See also C & S Industries, 158 NLRB 454, where the Board in
meeting a contention that Section 8(d) imposed no duty on an
qualifications, no exceptions, and it spoke only of
acceptance of "the offer" which the Company had made
the Union. Employees, it would seem, might be expected
to take the Company at its word.
But if any employee was so sophisticated in the art of
collective bargaining that he thought "final" meant
tentative and that Respondent did not seriously intend to
lock him out unless his representatives recommended that
he accept the offer which included a resolution of a
nonmandatory bargaining subject, he must have been
shaken when the Company closed the plant and, in a letter
to him on July 6, 1966, repeated the substance of its prior
offer, including in first place, "The Pension and Group
Insurance Plan Improvements," accompanied by
arguments supporting its acceptance.10 Just a day before,
in a meeting with the Union, with a representative of the
Federal Mediation and Conciliation Service present, the
Company repeated its previous offer of settlement,
including as part of it the improved pension-insurance plan
and increased vacation benefits.20
From the above statements and events, not only is it
reasonable to infer that Respondent's statements and
actions amounted to insistence upon acceptance of the
pension-insurance agreement extension as part of a
settlement of the dispute, such a finding is practically
compelled.
Respondent recognizes that Miles' statement on June 29
was "bold and definite," but argues that it should not be
taken out of context.'' In my view, however, other
incidents and statements during the bargaining process
are consistent with such a finding. "Insistence" does not
mean that a party must have used certain key words or
confessedly conditioned settlement on discussion or
agreement on nonmandatory subjects. The continual
injection of illegal or otherwise extraneous issues into
bargaining is evidence from which one may infer that the
nonmandatory has been emphasized to such a degree that
the obligation to bargain in good faith as defined in
Section 8(d) has not been met." Certainly the inference
has more support when the improper or extraneous matter
appears in the bargaining only in conjunction with a
valuable concession which disappears from the table when
the nonmandatory item does. This is, indeed, what I find
occurred during the bargaining.
Respondent made its first "package" proposal,
including a modified pension-insurance agreement
employer to refrain from acting unilaterally , once the union
rejects the employer's offer to bargain about proposed midterm
contract changes, said
This is to be contrasted with the unquestioned protection
provided an employer under Section 8(d) against union
strikes aimed at obtaining contract modifications during the
effective period of a contract We are unwilling to construe
the statute in a manner that would thus render nugatory the
above-quoted language of Section 8(d), provide for a one-
sided application and curtail the effectiveness of collective-
bargaining agreements as a stabilizing factor in labor-
management relations
GC Exh 10
This appears from Frank's testimony and from written
transcripts of telephone recordings played to employees who
telephoned the plant after the lockout (G.C Exh 9
Respondent's brief
't District 50, United Mine Workers of America (Central Soya
Company, Inc), 142 NLRB 930
UNION CARBIDE CORP.
expiring in 1971, on June 2, 1966.23 When it first presented
this "package" to the Union, Respondent told it that "the
offering and acceptance of the vacation plan is contingent
upon your acceptance of a modified pension plan with a
termination date of 1971." There was no question about
dependency of the companion proposals for Miles made it
clear that ". . . there be no mistake, the vacation plan and
the pension and insurance plan are tied together." If the
case had ended here there would be no question about
"insistence" to a point of impasse on nonmandatory
subjects, but that afternoon, Graham, another company
negotiator "corrected" the morning's ultimatum by
announcing that the Union had"... the right to accept the
package or to bargain as they see fit." In my opinion, this
"correction" was only a correction in the form of
bargaining, not in the substance, for on June 13, and again
on June 21, when the Union's vacation demands and wage
proposals were under discussion, Respondent again
returned to its June 2 proposal and urged union
acceptance.24
The Union rejected Respondent's June 2 offer, and by
June 28 the parties had completed their review of all of the
Union's proposals, economic and noneconomic. At the
June 28 meeting Respondent made a second "package"
proposal and called it an "alternative" proposal. This offer
did not touch on pensions or insurance, but neither did it
have anything on improved vacations-an item which
Respondent estimates was worth 6-1/2 cents an hour. The
Union also rejected this offer with Frank commenting that
it seemed that the Respondent was "going backward," and
then, of course, as described above, Respondent made its
"final" offer, just before the lockout, and this offer again
contained both vacations and pension-insurance. I do not
believe that Respondent's June 28 offer, realistically
viewed, omitting as it did any proposal about vacations,
was presented with any confidence that it would be
accepted, but was put forward to contrast dramatically
with the next day's wage-vacation-pension-insurance
"package" which Respondent was bent on securing. Not
only was it not a real offer, it certainly, as words and
actions are commonly understood, was not open or still
available, as Respondent contends, on June 29 when
Respondent made its offer which it described as "a
complete and final package to settle all issues" from which
it "would not pull out anything or put in something else"
and which, unless recommended for acceptance, would
result in a lockout.
I find and conclude, on the basis of the above
considerations, that a substantial consideration in
Respondent's bargaining was the attainment of a
modification of the pension-insurance agreement prior to
its termination date; that Respondent insisted to the point
"The Company had improved its vacation and pension-
insurance policy for nonumt and unorganized employees in
January 1966 As early as January 1966, at a time when the basic
labor agreement could not be opened for negotiations on
vacations-or anything else covered by it-the Union asked the
Company to discuss the question of extending the new vacation
benefits to unit employees The Company, as it had a right to,
agreed to meet, but carefully conditioned discussions on an
understanding that it was not waiving its rights under the
agreement In subsequent discussion, it offered the new vacation
benefits to the Union, but it also tied to it agreement on the new
pension-insurance plan, and the Union turned it down This is
some indication that Respondent, as early as January 1966, was
determined to get "something of value" for a concession on
vacations, and that "something of value" was an early pension-
insurance lock
261
of impasse during negotiations on obtaining a settlement of
this nonmandatory issue, and locked out its employees to
secure that end.25
There remains for consideration Respondent's
contention that it ". . . temporarily shut down its plant and
laid off its employees for the sole purpose of resisting the
Union's bargaining strategy, and forestalling the Union's
declared intention to prolong negotiations without
reaching an agreement, until bargaining could be backed
up with advantageously timed multiplant strike action.
This is the real reason for the Alloy lockout; and it has
nothing to do with forcing a modification of the pension-
insurance agreement."26 Respondent urges that if this is
so then its actions were proper under American Ship
Building Company v. N.L.R.B., 380 U.S. 300, where the
Court held that an employer does not violate the Act,
"when, after a bargaining impasse has been reached, he
temporarily shuts down his plant' and lays off his
employees for the sole purpose of bringing economic
pressure to bear in support of his legitimate bargaining
position."
There is some evidence in the record that certain local
unions, including the charging party, are part of a program
to coordinate the bargaining of various unions which deal
with Union Carbide Corporation, particularly with respect
to the pension-insurance agreement. There is within the
AFL-CIO an Industrial Union Department (IUD), which
has as one of its functions the "coordination" of bargaining
by locals of the several AFL-CIO unions which represent
employees at different plants of large employers. It was
stipulated during the hearing in the Section 10(j) matter
that "There is under the auspices of the Industrial Union
Department of the AFL-CIO a program to coordinate the
bargaining of the various unions which deal with Union
Carbide, and in particular an attempt to get coordinated
negotiations with respect to the uniform pension plan
which exists throughout the plants of Union Carbide.
There is such a program, and this local, which is in this
lawsuit, is part of that program." There is also a "Carbide
Nationwide Council" in the IUD which has announced a
coordinated bargaining program" for the Respondent's
Metals Division's Locals as contracts expire, specially
directed at Respondent's vacation and pension-insurance
plan.
At a meeting in the Company's New York office in April
1966, between company industrial relations representatives
and a substantial number of Carbide Nationwide Council
representatives from the various locals, S. J. Harris,
assistant director, collective-bargaining section of the
IUD, spoke and said during his remarks to the company
representatives, "You are in trouble this year. By August
or September you will have a number of plants down."
2' In the 100) proceeding, Miles testified that "The vacation
plan was a pretty healthy plum we thought and we felt we
should have something for it, and we felt that the pension and
insurance agreement tied up for five years would be worth the
vacation plan "
S There is no allegation in the complaint that Respondent
failed to bargain in good faith during the 6 weeks preceding the
June 29 meeting, but the evidence and findings relating to that
period set out above have been included in response to
Respondent's contention that its conduct prior to June 29
demonstrates that its June 29 bargaining posture was not
inflexible, and because it is relevant background for the events of
June 29 and thereafter
26 Quoted from Respondent's brief
299-352 0-70-18
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In March 1966, Harris sent a memorandum to all Union
Carbide IUD delegates, enclosing a resolution. The
memorandum noted that a meeting of delegates had been
held for the "major purpose" of preparing for "1966
coordinated bargaining spear-headed by the Metals
Divisions Locals" and also to "get a consensus as to
whether Locals desired national bargaining on Pension
and Insurance in 1967. . . . " Other references in
the memorandum point in the direction of "coordinated
bargaining." The attached resolution, which was adopted
by the Charging Party in this case, declared that the Local
would consult the Union Carbide Steering Committee and
"consider its views and advise before accepting any final
Company proposal." It also provided that "Those Local
Unions whose Pension and Insurance agreements expire
in the year 1967 will not accept any changes in those plans
until changes are negotiated in 1967."
Earl Engle, general manager of industrial relations for
the Corporation, testified that he participated and shared
in the management decision to shut down the Alloy plant
and that the decision was made shortly before the June 29
bargaining session. He was aware of the "coordinated
bargaining" approach of the unions in the IUD, and this
motivated him, in part, to take the action he did. He stated
that the plant was shut down because "We felt that this
realistically was the only way that we could prevail in our
attempt to remove it from the multiplant bargaining area."
He conceded that he was also aware that IUD was going to
try to "coordinate" bargaining about pension-insurance on
a companywide level in 1967 and that one of the
considerations in his mind in the bargaining in the instant
case was an extension of the existing pension plan past
1967 into 1971 so that the Company would not be
vulnerable to the IUD program.
I do not think that the evidence just set forth supports
Respondent's contention that its sole object in the lockout
and surrounding negotiations was to frustrate the Union's
illegal strategy and that Respondent's actions, therefore,
were only in support of its legitimate bargaining position.
On the other hand, Engle's testimony that the Union's plan
to secure simultaneous bargaining about the pension-
insurance agreement at many locations in 1967 was a
consideration in Respondent's bargaining strategy
strengthens the finding that a factor in the deadlock which
developed was Respondent's desire to achieve an early
modification and extension of the pension-insurance
contract.
First of all, the evidence about "coordinated
bargaining" or concurrent local strikes does not of itself
establish a refusal to bargain on the Union's part within
the meaning of the Act. The Union had the right to consult
with other locals about common concerns and could even
insist upon common expiration dates for its local
agreements. 7 The Union, as could the employer, could
'r United States Pipe and Foundry Company v N L R B, 298
F 2d 873 (C A 5), American Radiator & Standard Sanitary
Corporation, 155 NLRB 736
'K N L R B v International Brotherhood of Electrical Workers
(Texltte, Inc), 266 F 2d 349 (C A 5), International
Longshoremen's Association (New York Shipping Assn , Inc), 118
NLRB 1481
2" 1 do not mean to suggest that if a union should bargain in bad
faith by, for example, demanding a closed shop or an agreement in
violation of Section 8(e), that an employer may insist upon
attaining a concession on a nonmandatory subject and lockout to
that end I know of no case which so holds, and nothing in
American Ship Building suggests that result
"' G C Exh 10
suggest agreement on nonmandatory subjects, such as
multiplant or employer bargaining on the basis of a
different unit, but not insist on such to point of impasse,"'
and I find no evidence that the Union did so in this case.29
The Local Union, which is the Charging Party here,
resolved, it is true, not to accept any change in the
pension-insurance agreement until it expired in 1967, but
this it had a right to do, because Congress had removed
that subject from the area of mandatory bargaining.
Although the local agreed to "... consult the IUD-Union
Carbide Steering Committee, and consider its views and
advice before accepting any final Company proposal,"
there is no evidence that the local "locked" itself in by
agreeing to take nothing that was not approved by other
unions representing other bargaining units, and, as a
matter of fact, there is evidence in the record that many
locals of other unions, including locals of the International
Union in this case, have signed the Company's new
pension-insurance proposal.-'o
In the second place, even if one should suspect that the
Union's strategy included more than mere consultation
with its sister locals, the Company's injection of the
nonmandatory subject into bargaining makes it almost
impossible to assay the Union's motives. If the pension-
insurance issue is removed from the data to be
analyzed-which it is almost impossible to do for it was
ever present-the record seems to show that both sides
were engaging in hard bargaining for the best economic
deal they could make, and when the pension-insurance
issue is included in the picture it is logical to assume, since
the subject is legally extraneous by the terms of the Act
itself, that it frustrated or impeded the bargaining process
more than any supposed union conspiracy.
Third, if Respondent's sole object was to get an early
agreement on bargainable items it could have tested the
Union's good faith and locked the employees out in search
of an agreement which did not contain the nonbargainable
matter, but Respondent chose right up to the last to
propose the pension-insurance plan, and this is an added
indication, therefore, that one of the ends that Respondent
sought to achieve was modification of that agreement and
not just a settlement of subjects which must be bargained
about if the statutory mandate is to be met.
American Ship Building Company affords Respondent
no protection. That case excuses a lockout after an
impasse in support of an employer's legitimate bargaining
position. The impasse in this case was of the Company's
own making, and the lockout was in aid of a bargaining
position which Respondent had no right to take."
I find and conclude, therefore, as alleged in the
complaint, that by insisting to a point of impasse that the
Union accept its "package offer" containing an extended
pension-insurance agreement; by locking out its
employees for the same purpose and by threatening its
" See American Stores Packing Co , 158 NLRB 628, where the
Board said that there is nothing in American Ship Building to
suggest that the Court viewed the lockout as permissible in
support of unlawful bargaining demands In Tonkin Corp of
California, d/b/a Seven Up Bottling Co, 158 NLRB 1223, the
Board in considering the impact of American Ship Building, said
a lockout was not for the sole object of applying pressure in
support of a legitimate bargaining position, but was motivated by
purposes repugnant to certain sections of the Act Here, of
course. Respondent's suggestion for change in the pension-
insurance agreement was not unlawful, but its insistence was a
refusal to bargain, and its lockout in support thereof was
repugnant to Section 8(a)(5) and (d) of the Act
UNION CARBIDE CORP
employees that it would shut down its plant if the Union
did not agree to recommend to employees that they ratify
Respondent's June 29, 1966, contract offer, Respondent
engaged in and is engaging in unfair labor practices as
defined in Section 8(a)(1), (3), (5), and (d) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent Company set forth in
section III, above, occurring in connection with the
operations of Respondent as described in section I, above,
have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States and, such
of them as have been found to constitute unfair labor
practices, tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent Company
engaged in unfair labor practices in violation of Section
8(a)(1), (3), and (5) of the Act, it will be recommended that
the Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent locked out its employees
and refused to bargain with the Union, it will be
recommended that Respondent resume operations at its
alloy plant and offer to those employees locked out
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority and other rights and privileges, and make
them whole for any loss of earnings they may have
suffered by reason of Respondent's refusal to bargain and
discrimination against them,32 by payment to them of a
sum of money equal to that which they would have earned
as wages from the date of the lockout to the date of offer of
reinstatement and in a manner set forth in
F. W. Woolworth Company, 90 NLRB 289. Interest on
backpay shall be computed in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716.
In addition, in order to remedy Respondent's refusal to
bargain in good faith with the Union, it will be
recommended that Respondent be ordered to bargain
12 Fibreboard Paper Products Corp v N L R B , 379 U.S 203
Even if Respondent had not discriminated against employees by
its lockout within the meaning of Section 8(a)(3) of the Act, which
I have found it did, the remedy for the 8(a)(5) violation would be
263
collectively, upon request , with the Union as the exclusive
representative of the employees in the appropriate unit,
and, if an understanding is reached , embody such
understanding in a signed agreement.
It will also be recommended that Respondent preserve
and make available to the Board, upon request , payroll and
other records to facilitate the computation of backpay.
It will further be recommended , in view of the nature of
the unfair labor practices the Respondent has engaged in,
that it cease and desist from infringing in any manner upon
the rights of employees guaranteed by Section 7 of the
Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case , I make the following:
CONCLUSIONS OF LAW
1. The Respondent is 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 hourly paid employees employed at the
Respondent's Alloy Works in Fayette County, West
Virginia, including head furnacemen and head mix men,
but excluding patrolmen, timekeepers, medical
department employees, laboratory employees, employees
in the alloy coal mine and all guards, professional
employees and supervisors as defined in the Act,
constitute an appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act.
4. The Union has been, and is now, the statutory
representative of said employees.
5. By refusing to bargain with the Union as found above
on June 29, 1966, and thereafter, Respondent engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
6. By threatening to lockout and by locking out its
employees on July 1, 1966, as found above, Respondent
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1), (3), and (5) 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 omitted from publication.]
the same, since the employees were laid off as part of a bargaining
position which was inimical to good-faith bargaining as defined in
the Act