Williamsburg Steel Products Co.

National Labor Relations Board - Board Decisions

Jan 22, 1960

126 N.L.R.B. 288 (N.L.R.B. 1960)

288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondents to refrain in the future from abridging any of the rights guaranteed
employees by said Section 7 24
Having found that the Respondents discharged Fern Miller on December 13,
1958, in violation of Section 8(a) (1) and (3) of the Act, I shiall recommend that the
Respondents offer her immediate and fall reinstatement to her former or a sub-
stantially equivalent position without prejudice to her seniority and other rights and
privileges, and make her whole for any loss of pay she may have suffered by reason
of the discrunination against her, as found above , by payment to her of a sum of
money equal to the amount of wages she would have earned , but for the said dis-
crmunation, between December 13, 1958, and the date of a proper offer of rem-
statement to her as aforesaid , and that the said loss of pay be computed in accord-
ance with the formula and method prescribed by the Board in F W Woolworth
Company, 90 NLRB 289 , to which the parties to this proceeding are expressly
referred 25
Upon the basis of the foregoing findings of fact, and upon the entire record in
this proceeding , I make the following
CONCLUSIONS OF LAW
1 The Respondents constitute , and have constituted at all times material to this
proceeding, a single employer within the meaning of Section 2(2) of the Act
2 Amalgamated Meat Cutters and Butcher Workmen of America, AFL-CIO, is,
and has been at all times material to this proceeding , a labor organization within
the meaning of Section 2(5) of the Act
3 By discriminatorily discharging Fern Miller, as found above, the Respondents
have engaged m and are engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act
4 By interfering with, restraining , and coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act, as found above, the said Respondents
have engaged in and are engaging in unfair labor practices within the meaning of
Section 8 (a) (1) of the Act
5 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act
[Recommendations omitted from publication l
-May Department Stores d/b/a Famous Bap r Stores v NLRB, 326 US 376
Bethlehem Steel Company v N L R B, 120 F 2d 641 (C A, D C)
Z In accordance with the Board's past interpretation, the expression "former or a
substantially equivalent position " is intended to mean "former position wherever possible
but if such position is no longer in existence , then to a substantially equivalent position "
The Chase National Bank of the City of New York San Juan , Puerto Rico, Branch,
65 NLRB 827
Benne Katz, Alfred Finkel , and Murray Katz, d/b/a Williams-
burg Steel Products Company and Architectural and Engi-
neering Guild , Local 66, American Federation of Technical
Engineers, AFL-CIO. Case No 2-CA-5368 January 22, 1960
DECISION AND ORDER
On July 13, 1959, Trial Examiner David London issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take affirmative action, as set forth in the copy of the Intermediate
Report attached hereto Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief, and the General
Counsel filed a brief
126 NLRB No 39
WILLIAMSBURG STEEL PRODUCTS COMPANY 289
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Jenkins, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report, the exceptions,
and the briefs,' and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner with the modifications and
additions noted below 2
We agree with the Trial Examiner that the Respondent violated'
Section 8 (a) (5) and (1) of the Act I by instituting, during the
Union's certification year and without notifying or consulting with
the Union, the following unilateral action: (1) Granting merit in-
creases in October 1956 and January 1957; (2) changing sick-leave
policy on or about March 11, 1957; (3) announcing a new automatic
wage increase system in April 1957.' We find no merit in the Re-
spondent's contention that the existence of an impasse in the bargain-
ing negotiations with the Union justified it in taking such unilateral
action. Respondent in this connection asserts that the alleged im-_
passe derived in part from the fact that the Union and another com-
pany in the industry entered into a collective-bargaining agreement
containing a "most favored nations" clause.' In the circumstances of
this case, we reject this position .6 For the evidence is clear that the
' The Respondent 's request for oral argument is denied , as the record , including the
exceptions and briefs, adequately presents the issues and the positions of the parties
3 As we find insufficient support in the record therefor , we do not adopt the statements
in the Intermediate Report that (1) Chief Draftsman Halpern invited employee Langiulli
into the former's office to look at a company pension plan , and (2 ) Halpern told em-
ployee Thibou that management had been working on a company contract for some time,,
that the contract contained a pension plan which the Union could not obtain for the
men, and that the Union 's Pioneer contract was not as good as the company contract.
However , these findings of the Trial Examiner -are not essential to our concurrence with
the Trial Examiner 's ultimate conclusions
s See N.L R B. v Crompton-Highland Mills , Inc, 337 U.S. 217 ( 1949 ) ; Armstrong.
Cork Company v N L R B , 211 F 2d 843, 847 (C A 5, 1954) , Chambers Manufacturing
Corporation , 124 NLRB 721, Bonham Cotton Mills, Inc., 121 NLRB 1235, 1236.
4 we construe the Intermediate Report as finding violations only with respect to the
above specified unilateral acts As the General Counsel filed no exceptions , we do not
pass on any other allegations in the complaint There is no allegation in the complaint
that the Respondent generally bargained in bad faith in the actual negotiations with
the Union. Therefore, we do not adopt the broad statement in the Intermediate Report
that ". . Respondent was merely going through the motions of collective bargaining
without a genuine intention of trying to negotiate an agreement with the Union . .11
s The clause is captioned "ARTICLE XXV-MOST FAVORED NATIONS CLAUSE," and
provides : "Anything to the contrary notwithstanding , no other Employer in The Hollow
Metal Door & Buck Industry shall be accorded terms and conditions in a collective bar-
gaining agreement which are more favorable than those contained herein , including
classifications and minimum rates of pay. The foregoing however , shall not apply to,
general wage increases and rates of pay "
6 We do not adopt, as we find it unnecessary to pass upon, the Trial Examiner' s state-
ment that "The clause did not . make it impossible for the Union to conclude an
agreement with Respondent. ..
554461-60--vol 126-20
'290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent undertook its unilateral actions before negotiations were
discontinued in May 1957, or before, as we find on the record, the
existence of any possible impasse.
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
,of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Benno Katz, Alfred Finkel,
and Murray Katz, d/b/a Williamsburg Steel Products Company,
Brooklyn, New York, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Unilaterally changing wages, rates of pay, or sick leave, or
granting merit increases, or in any similar or related manner refusing
to bargain collectively with Architectural and Engineering Guild,
Local 66, American Federation of Technical Engineers, AFL-CIO,
as the exclusive representative of its employees in the following unit :
All technical engineering employees in the engineering department of
the New York operation, including estimators, technical clerks, de-
.signers, draftsmen, listers, schedulers, hardware coordinators, methods
and/or process engineers, and other technical engineering employees
.doing similar work regardless of assigned classification, but excluding
all other employees, specifically office clerical employees, production
,employees, salesmen, mechanics, teamsters, guards, and supervisors
as defined in the Act.
(b) Refusing to bargain collectively concerning rates of pay, wages,
-hours of employment, and other conditions of employment with the
Union as the exclusive representative of its employees in the above,
,described unit.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with the Union as the ex-
'elusive representative of all its employees in the above-described unit
.concerning rates of pay, wages, hours of employment, and other con-
ditions of employment, and embody any agreement reached in a signed
contract.
(b) Post at its plant at Brooklyn, New York, copies of the notice
attached hereto -marked "Appendix A." 7 Copies of said notice, to
be furnished by the Regional Director for the Second Region, shall,
after being duly signed by the Respondent's authorized representa-
tive, be posted by the Respondent immediately upon receipt thereof
and maintained 'by it for 60 consecutive days thereafter in conspicu-
ous places, including all places where notices to employees are cus-
7 In the event that this order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
-words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
WILLIAMSBURG STEEL PRODUCTS COMPANY 291
tomarily 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 Second Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT unilaterally change wages, rates of pay, or sick
leave, or grant merit increases, or in any similar or related manner
refuse to bargain collectively with Architectural and Engineering
Guild, Local 66, American Federation of Technical Engineers,
AFL-CIO, as the exclusive representative of our employees in
the following bargaining unit:
All technical engineering employees in the engineering
department of our New York operation, including estimators,
technical clerks, designers, draftsmen, listers, schedulers,
hardware coordinators, methods and/or process engineers,
and other technical engineering employees doing similar work
regardless of assigned classification, but excluding all other
employees, specifically office clerical employees, production
employees, salesmen, mechanics, teamsters, guards, and
supervisors as defined in the Act.
WE WILL NOT refuse to bargain collectively concerning rates
of pay, wages, hours of employment, and other conditions of
employment with the Union as the exclusive representative of
our employees in the above-described unit.
WE WILL, upon request, bargain collectively with the Union as
the exclusive representative of all our employees in the above-
described unit concerning rates of pay, wages, hours of employ-
ment, and other conditions of employment, and embody any
agreement reached in a signed contract.
BENNE KATZ, ALFRED FINKEL, AND
MURRAY KATZ, D/B/A WILLIAMSBURG
STEEL PRODUCTS COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed April 16, 1957, by the above-named Union, herein called the
Union, against the above-named partnership, herein called Respondent, the General
Counsel on September 8, 1958, issued a complaint alleging that Respondent had
engaged in unfair labor practices within the meaning of Section 8(a)-(1) and (5) and
Section 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136, herein
called the Act. Respondent, by its answer, denied the commission of any unfair
labor practices and pleaded affirmative defenses which will be summarized and
considered in later portions of this report. Pursuant to notice, a hearing was held
before the duly designated Trial Examiner at New York, New York, between
January 28, 1959, and February 6, 1959. The General Counsel and Respondent
were represented by counsel, the Charging Union by its representative, and were
all afforded full opportunity to examine and cross-examine witnesses, to introduce
evidence bearing on the issues, and to file briefs. Respondent's motion to dismiss
the proceedings for want of proof made at the close of the testimony, on which
ruling was reserved, is now disposed of in accordance with the findings of fact and
conclusions of law made below. Since the close of the hearing, briefs have been
received from the General Counsel and Respondent and have been duly considered.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Benue Katz, Alfred Finkel, and Murray Katz, are copartners d/b/a Williamsburg
Steel Products Company at Brooklyn, New York. where they are engaged in the
manufacture, sale, and distribution of hollow metal doors, bucks, and related prod-
ucts. During the year preceding the filing of the complaint herein, Respondent, in,
the course and conduct of its business operations, caused to be manufactured, sold„
and distributed at said plant products valued in excess of $200,000, of which,
products valued in excess of $100,000 were shipped from said plant in interstate-
commerce directly to States of the United States other than the State of New York.
Respondent admits, and I find , that at all times material herein it has been engaged.
in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Architectural and Engineering Guild, Local 66, American Federation of Technical'
Engineers , AFL-CIO, herein called the Union , is a labor organization admitting to
membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
Following an election conducted by the Board pursuant to an agreement between,
the Union and Respondent, the Union was, on July 5, 1956, certified as collective-
bargaining representative of all technical engineering employees of Respondent's
engineering department in its New York operation including estimators, technical
clerks, designers, draftsmen, listers, schedulers, hardware coordinators, methods
and/or process engineers, and other technical engineering employees doing similar
work regardless of assigned classification, employed at its plant. Similar separate
certifications were issued to the Union by the Board on the same day for similar
units of employees at Superior Fire Proof Door and Sash Company, Triangle
Steel Products Company, World Steel Products Corp., Pioneer Fire Proof Door
Corp., and City Steel Door Corp. All of the employees aforementioned, including
Respondent, were at all times material herein members of an association of approxi-
mately 25 steel fabricators, manufacturing products similar to each other and
known as Hollow Metal Door and Buck Association, Inc., hereinafter referred to
as the Association.
On July 11, 1956. the Union, by identical letters to Respondent and each of the
five other employers where the union had been certified as bargaining representative,
asked that arrangements be made as quickly as possible "for either individual or
association wide bargaining" and advised that the Union would within 7 or 8 days
transmit its proposals for a collective-bargaining agreement The letter noted,,
however, that in accordance with "previous discussions and mutual understanding,
the wage rates and/or increases shall be negotiated on an individual Employer-
basis . . . ... On July 19, the Union sent to Respondent and the five oher employers.
WILLIAMSBURG STEEL PRODUCTS COMPANY 293
:a form letter listing a multitude of subjects for collective bargaining but repeating
.its position that wage rates and increases were to be negotiated on an individual basis.
Receiving no response to these letters , J. L. Raimist , business manager of the
Union, "many times" called Sidney O. Raphael, attorney for both the Respondent
and the Association, but was unable to arrange a meeting until August 30, 1956, when
the first conference was held in Raphael's office. Though subsequent meetings
were conducted in 1956 on October 2, 18, and 24, November 1, and December 5,
and in 1957 on March 29, April 4 and 11, and May 1 and 13, the parties failed.
to reach total agreement and carried on no further negotiations.
Though both parties expressed willingness at the last meeting on May 13 to submit
their differences to arbitration, they could not agree on the method of arbitration.
The Union demanded that the arbitration be conducted under the auspices of the
New York State Board of Mediation without cost to the parties, while Respondent
insisted that they be conducted by an arbitrator appointed by the American Arbitra-
tion Association. Respondent objected to arbitration under auspices of the State
Board on the ground, as stated in its brief, that Respondent felt the State Board
"could not render the required service in an objective manner since :t had participated
to [a] great extent . . . when it attempted to handle this matter by mediation."'
The Union's objection to arbitration by the American Arbitration Association was
that it was too costly, and could not be afforded by the Union. On May 16,
Respondent posted a notice on its bulletin board advising the employees in the unit
that negotiations had come to an impasse, that no immediate agreement was in
sight, and that Respondent had offered to arbitrate the dispute under the auspices
of the American Arbitration Association. Though the notice further stated that
its purpose was to advise the employees "of the present status of the situation," it
made no mention of the Union's offer to submit to arbitration by the State board.
On May 17, the Union wrote Respondent asking for the immediate resumption
of negotiations. Respondent replied on May 21 stating its willingness to negotiate,
,or to arbitrate under the American Arbitration Association. Though it was undis-
puted that Raimist thereafter had a large number of telephone conversations about
continuing the negotiations with Raphael, attorney for Respondent who also repre-
sented it at every bargaining conference and at whose offices about half of the
bargaining sessions were held, no further meetings were held.
On July 13, 1957, Halpern called employee Thibou to his office and told him that
management had been working on a company contract "for quite some time" con-
taining a pension plan which the Union could not obtain for the men. Halpern told
him he had worked out a schedule showing how much each man would receive under
the plan based on age, length of service, and salary. At about the same time Halpern
also invited employee Langiulli into his office to look at the pension plan. During
the conversation with Thibou, Halpern told him that the contract which the Union
had negotiated with Pioneer was not so good as the one Respondent was ready to
offer. On this and "various" other occasions, Halpern cautioned Thibou that he
did not want these matters "to get around to the rest of the men until the situation
was actually right for the information to be spread around." All this occurred at a
time when Halpern, according to his own admission, "was well aware of considerable
dissension and controversy among employees in the engineering department over
union matters, . . . that the employees were breaking up into two factions, and that
he had heard a rumor being circulated that the Board's certification "of the Union
was no longer effective." During the last week in July 1957, Halpern "knew that the
dissension among the employees had reached a point where they were going to do
something about it during that week, at the coffee break, which . . . runs normally
for 10 to 15 minutes at 4 p.m."
About the same time, the latter part of July, 40 to 50 employees in the bargaining
unit held a meeting in Respondent's drafting room. The meeting was convened at
4 p.m. and lasted, according to the estimate of several witnesses, from 1 to 2 hours.
Working hours at that time were from 8 a in. to 4:30 p in. but the men "normally"
worked overtime to 5:30. Though Halpern was aware of the meeting, his office
being nearby and though he normally limited the coffee break to a relatively short
period, he took no action to return the men to work before the meeting adjourned.
Employee T. Sneed, Jr, testified that he "believed" he was paid for the time he was
in attendance at the meeting, while several others testified that they punched out
after the meeting was concluded. Based on this testimony, and there being no denial
'A number of the meetings between the parties were conducted at the offices of the
State board and had been presided over by Howard Gamier, a mediator in the employ
of that board
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereof, it may reasonably be inferred that the men were in fact paid for this
attendance at the meeting.
Herbert Jacobson, then a coordinator and staff assistant to Halpern,2 assisted in
notifying employees of the meeting which was called "basically . . . [to] do
away with [the Union] as the bargaining agent" because the men felt they "could do
a better job [themselves] than . the Union had done." Also in attendance
was Supervisor Edward Wisniewski, chief draftsman. Jacobson read a proposed
contract to be presented to Respondent and explained the procedure for decertifying
the Union which, he explained, required the resignation of the employees from
the Union. By a vote of 20 to 15 the men decided to present the proposed contract
to Respondent and to proceed with the decertification of the Union. Having previous
to the vote agreed to abide by the vote of the majority, all employees in attendance
at the meeting signed documents to decertify the Union, and to withdraw their
membership therefrom. Shortly after this meeting, in August 1957, Respondent
granted liberal wage increases to practically every employee in the unit, increases
which exceeded those offered by Respondent to the Union in the previous May.
The complaint, as amended at the hearing, alleges that Respondent violated its
statutory duty to bargain collectively with the Union "in that" it engaged in the
following misconduct:
(a) Unilaterally changing sick leave.
(b) Unilaterally changing wage rates.
(c) Bargaining directly and individually with employees concerning wages
and other terms and conditions of employment 3
(d) Aiding and assisting employees to repudiate the Union.
(e) Publicizing, sponsoring, permitting, attending and participating in meet-
ings on its premises of employees in derogation of the Union's representative
status.
(f) Unilaterally granting merit increases.
It is the foregoing specified conduct, and nothing more, which paragraphs 10 and
12 of the complaint plead as the conduct claimed to be violative of Section 8(a)(5)
and (1) of the Act. In that state of the record, I have concluded that it would
serve no useful purpose to make more detailed findings as to all the areas of agree-
ment or disagreement reached by the parties during their negotiations but to turn
instead to immediate consideration of the testimony pertaining to the specific mis-
conduct alleged in the complaint.
Merit increases for employees in the unit was one of the subjects which the Union
specifically proposed as a subject of collective bargaining in its proposals submitted
to Respondent on or about July 19, 1956. Raimist testified that at the first meeting
on August 30, it was "definitely established that there would be a joint review of
merits," but that the details would be worked out at later meetings. Alfred Finkel,
the Respondent partner in charge of its labor relations and who participated in all
the meetings, testified that the subject was merely mentioned at the meetings on
August 30 and October 2 and 10, 1956, but that the parties agreed on each of those
dates to postpone negotiating thereon until a later date. Notwithstanding the pend-
ency of future negotiations, Respondent, in October 1956, unilaterally granted 34
merit increases; 20 similar merit increases were unilaterally granted in January 1957.
The evidence is undisputed that these merit increases were all granted without
notice to, or negotiation with, the Union. The evidence also establishes conclusively
that Raimist vigorously protested this conduct at a number of the bargaining ses-
sions as conduct tending "to destroy the bargaining unit and . the Union." 4
On or about March 11, 1957, while negotiations with the Union were in progress„
Respondent notified the employees in the bargaining unit , and its office personnel,
that it was making a substantial change in its sick-leave policy and that the change
would be retroactive to January 1, 1957. Sick leave had been the subject of dis-
2 At the time of the hearing, Jacobson was in charge of production control.
8 In response to a motion for a bill of particulars, the General Counsel stated that this
allegation referred to the unilateral change of wage rates mentioned in (b) immediately
above.
* It is no defense that Respondent was allegedly merely following an established prac-
tice of quarterly reviewing the merit of its employees for "it is now beyond dispute that
an employer is under a duty to bargain with the representative of its employees with
respect to individual merit increases ." General Controls Co., 88 NLRB 1341 , citing
NL.R.B. v. J. H. Allison & Company, 165 F. 2d 766 (C.A. 6), cert. denied 335 U.S. 814,
rehearing denied 335 U.S 905; see also Armstrong Cork Company v. N.L.R.B., 211 F. 2d
843 (C.A. 5).
WILLIAMSBURG STEEL PRODUCTS COMPANY 295 ,
cussion between the parties at three conferences prior to March 11, 1957, but no
agreement had been reached thereon. The change was imposed without notice to
the Union and was the subject of a vigorous letter of protest by the Union on
March 15. In reply thereto, Respondent stated its position frankly, albeit mis-
takenly, that it did "not feel obligated to explain the matter to [the Union] or anyone
else until an agreement has been reached between" the parties
In April 1957, Ernst Halpern, chief draftsman and supervisor of the employees
in the bargaining unit,5 announced to those employees "that henceforth an automatic
wage increase system would be in operation from them as follows: Up to $74.99 per
week-automatic increase of $5 per week every 3 months, from $75 to $90 per
week-automatic increase of $5 per week every 6 months; over $90 per week-
merit increases review every 6 months, raises to be granted in management's discre-
tion on a merit basis." These increases were announced without notice to, or
consultation with, the Union and were substantially better than what Respondent
had previously offered the Union. They were thereafter, with slight modification,
put into effect.
The foregoing findings that Respondent unilaterally granted merit increases,
unilaterally changed its sick-leave policy and wage rates, all without notice to, or
negotiations with, the Union, are based on undisputed evidence. Indeed the testi-
mony establishing that conduct was given by Finkel, Halpern, one of Respondent's
top supervisors, and by Respondent's own records.
At the hearing, and in its brief, Respondent defended its action aforementioned
on the ground that the Union conducted the negotiations in such an "untoward
. . . and intemperate" manner as to create an impasse thereby so "alienat[ing] its
own members [that it] ceased to be their bargaining representative." Based on the
foregoing premise, Respondent further contends that "in the face of the Union's
attitude and the impasse created thereby, the Respondents were authorized to give
directly to their employees . the various wage and salary revisions . . . [which]
followed an historical pattern " The only reason ascribed for the unilateral change
of the sick-leave policy was that Respondent deemed the change to be in the best
interests of Respondent and its employees. I find this entire defense to be without
merit.
In the argument in support of its defense, Respondent places greatest emphasis on
(1) alleged shifting of positions by the Union from individual bargaining with Re-
spondent to associationwide bargaining, and (2) to the alleged insistence by the
Union that Respondent had to accept a contract similar to the one that the Union
had successfully negotiated with Aetna Steel Products Corporation, also a member
of the Association, and containing a "favored nations clause" which Respondent
contends "presented an impassable barrier to further negotiations with the Re-
spondent and other employers."
As to (1), the record clearly establishes that the Union was willing throughout
the entire negotiations, as a matter of convenience to all the employers and the
Union, to bargain on an associationwide basis on all terms and conditions of em-
ployment except wages, but demanded, as it had a right to demand, that the latter
subject be negotiated separately with Respondent. It was Respondent who, though
first agreeing to that division of subjects, shifted its position.
As to (2), dealing with the effect of the Aetna agreement on the negotiations be-
tween the parties, it should be noted at the outset that this contract was first con-
sidered in the negotiations on March 29, 1957, long after the unilateral merit in-
creases of October 1956, January 1957, and the unilateral change of sick leave on
March 11. Nor is there any merit to the argument that the "favored nations clause"
in the Aetna agreement presented "an impassable barrier to further negotiations,
with Respondent." That clause read as follows:
ARTICLE XXV-MOST FAVORED NATIONS CLAUSE
Anything to the contrary notwithstanding, no other Employer in the Hollow
Metal Door & Buck Industry shall be accorded terms and condition in a collec-
tive bargaining agreement which are more favorable than those contained
herein; including classifications and minimum rates of pay. The foregoing how-
over, shall not apply to general wage increases and rate of pay.
The clause did not, as Respondent contends, make it impossible for the Union
to conclude an agreement with Respondent, or any other employer, on terms or con-
ditions of employment other than, or more favorable to the employers than, those
contained in the Aetna agreement. Its only effect might be, as Raimist explained at
the conferences, to create a problem for the Union with the employees at Aetna
5 At the time of the hearing, Halpern was shop superintendent and plant manager,
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whose working conditions might be worsened if other employers were given more
favorable terms,s In any event, the record establishes that the parties continued
to negotiate for approximately 6 weeks after the Union proposed the Aetna contract
as a format or pattern on March 29.
Rather than demonstrating bad-faith bargaining by the Union, the entire record
compels the conclusion that it was Respondent's conduct which brought the nego-
tiations to naught. Thus, Respondent's unilateral action heretofore found, "while
negotiations were still continuing, and in complete disregard of the Union's status,
provides the final insight into Respondent's conduct of the negotiations with the
Union. It clearly shows that . . . Respondent was merely going through the
motions of collective bargaining without a genuine intention of trying to negotiate
an agreement with the Union as required by the provisions of the Act?
On the entire record I find and conclude that by taking the unilateral action
above found before any claimed impasse was reached,8 and while negotiations were
pending, Respondent did so in clear disregard of its obligation to bargain with the
Union as the exclusive bargaining representative of its employees, and thereby
undermined the authority which the Act bestowed upon the Union. By that conduct,
Respondent violated Section 8(a)(1) and (5) of the Act. Medo Photo Supply
Corporation v N.L R.B., 321 U.S. 678, 683-684; May Department Stores d/b/a
Famous-Barr Company v. N.L.R.B., 326 U.S. 376; N.L.R.B. v. Crompton-Highland
Mills, Inc., 337 U.S. 217.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
The activities of Respondent set forth in section III, above, occurring in connec-
tion with its operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is engaging in certain unfair
labor practices affecting commerce, it will be recommended that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of
the Act.
Having found that Respondent has failed to perform its obligation to bargain in
good faith with the Union, it will be recommended that upon request Respondent
bargain in good faith with that organization. The withdrawal of membership from
the Union by the employees in the latter part of July 1957, can have no effect on
the portion of the remedy just recommended. The Board has consistently held,
with Supreme Court approval,9 "that the only means by which a refusal to bargain
can be remedied is an affirmative order requiring the employer to bargain with the
Union which represented a majority at the time the unfair labor practice was com-
mitted." Frank Bros. Company, et al., 44 NLRB 898, 917; Poultry Enterprises, Inc,
102 NLRB 211, enfd. 207 F. 2d 522 (C.A. 5).
Here, the unfair labor practices of which Respondent has been found guilty were
committed within the year following the Board's certification and at a time when
the Union was the unchallenged exclusive bargaining representative of its employees.
"Out of its wide experience, the Board many times has expressed the view that the
unlawful refusal to bargain collectively with the employees' chosen representative
disrupts the employees' morale, deters their organizational activities and discourages
their membership in unions . The Board's study of this problem has led it to con-
clude that, for these reasons, a requirement that union membership be kept
intact . . . would result in permitting employers to profit from their own refusal
to bargain." 10
6 After the execution of the Aetna contract, the Union entered into individual contracts
on less favorable terms to the Union and the employees at Pioneer Fire Proof Door Corp ,
Triangle Steel Products Co , Inc, and City Steel Door Corp
7 Fant Milling Company, 117 NLRB 1277, 1282 enforcement denied on another ground
in 258 F. 2d 851 (C.A 5), which decision was, however, reversed by the Supreme Court
on June 15, 1959, 360 U S. 301.
8 Even assuming "the existence of an Impasse, the legal rights inherent in this situation
depend upon whether or not such impasse was reached as the result of bona fide collective
bargaining . See N.L.R B v. Andrew Jergens Co , 175 F 2d 130 (C A 9, 1949) " Reed &
Prince Manufacturing Company, 96 NLRB 850.
9 Franks Bros . Company et at v N.L R.B., 321 U.S 702.
10 Ibid.
LOCAL UNION 522, LUMBER DRIVERS, ETC. 297
The foregoing rationale also requires rejection of Respondent 's affirmative defense
that because of the lapse of time this proceeding has become moot or barred by
laches. "Respondent cannot take advantage of the Board's delay in order to relieve
itself of making amends for its unfair practices ." N.L.R.B. v. Andrew Jergens
Company, 175 F. 2d 130 (C.A. 9), cert. denied 338 U.S. 827.
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. Architectural and Engineering Guild, Local 66, American Federation of Tech-
nical Engineers , AFL-CIO, is a labor organization within the meaning of Section
2(5) of the Act.
2. All technical engineering employees of Respondent 's engineering department
in its New York operation including estimators, technical clerks, designers, drafts-
men, linters , schedulers , hardware coordinators , methods and/or process engineers,
and other technical engineering employees doing similar work regardless of assigned
classifications employed at its plant, excluding all other employees, specifically office
clerical employees, production employees, salesmen, mechanics, teamsters, guards,
and supervisors as defined in the Act, constitute a unit appropriate for purposes of
collective bargaining within the meaning of Section 9(b) of the Act.
3. On and since July 5, 1956, the Union was, and presently is, the majority repre-
sentative of the employees in the above-described appropriate unit for purposes of
collective bargaining in respect to rates of pay, wages, hours of employment, or other
conditions of employment.
4. By failing to perform its obligation to bargain in good faith with the Union in
October 1956, and thereafter, Respondent has engaged in and is engaging .in unfair
labor practices within the meaning of Section 8(a) (5) of the Act.
5. By unilaterally granting merit increases in October 1956 and in January 1957,
by unilaterf ` hanging its sick-leave policy on or about March 11, 1957, and by uni-
laterally granting wage increases in April 1957, Respondent interfered with, re-
strained, and coerced its employees in the exercise of rights guaranteed in Section 7
of the Act, and has thereby engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a)( I) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Local Union 522, Lumber Drivers, Warehousemen & Handlers,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America and Mach Lumber Company.
Case No. 22-CC-1. January 06, 1960
DECISION AND ORDER
On October 23, 1959, Trial Examiner David London issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Bean and Jenkins.]
The Board has reviewed the rulings of the Trial Examiner made
126 NLRB No. 41.