Baker Manufacturing Co.

In the Matter of BAKER MANUFACTURING COMPANY and LOCAL 416, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORK- ERS, UAW-CIO Case No. 13-C-2761.-Decided January 23, 1948 Mr. Erwin A. Peterson, for the Board. Messrs. Walter Nitcher and J. Gordon Baker, both of Evansville, Wis., for the respondent. Mr. Harry Lehnert, of Rockford, Ill., for the Union. DECISION AND ORDER On December 26, 1946, Trial Examiner Louis Plost issued his Inter- mediate Report of the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the respondent had not engaged in certain other unfair labor practices as alleged in the complaint, and recommended dismissal of those allegations.2 Thereafter, the respondent filed exceptions to the Intermediate Report and a supporting brief. On November 4,1947, the Board heard oral argument at Washington, D. C. The respondent appeared and participated in the argument; the Union did not appear. The Board has reviewed the rulings made by the Trial Examiner a. at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- I The power of the Board to issue a decision in a case such as the instant one where the charging union has not complied with the filing requirements specified in Section 9 (f), (g), and (h) of the National Labor Relations Act, as amended, was decided by the Board in Matter of Marshall and Bruce Company, 75 N. L. R. B. 90. 2 No exceptions to these findings and recommendations as to dismissal were filed. 3 Rulings on certain motions filed by the respondent with the Trial Examiner subsequent to the hearing were reserved for the Board. These motions are hereinafter disposed of In the body of our decision. 75 N L. R B., No. 122. 1012 BAKER MANUFACTURING COMPANY 1013 mediate Report, the exceptions and brief filed by the respondent, the arguments advanced at the oral argument, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, with the additions, exceptions and modifications noted below : 1. Subsequent to the hearing the respondent filed with the Trial Examiner a number of motions, including (1) a motion to strike cer- tain allegations of the complaint and testimony in the record on the- ground of lashes, (2) a motion to strike certain allegations of the complaint and testimony in the record on the ground of illegal and improper amendment, and (3) a motion to reopen the record for the purpose of taking the testimony of the respondent's president, C. S. Baker. Ruling on these motions was reserved for the Board. With respect to the motion relating to the defense of laches, the Board has heretofore held that the equitable principle of laches does not apply to the Board in its administrative capacity as an agency of the Govern- ment 4 The motion is accordingly denied. By its second motion the respondent seeks to have all "specifications not included in the original charge and all testimony relating thereto stricken from the record." Inasmuch as the complaint is based upon an amended charge filed by the Union, we hereby deny the motion.' The respondent, in its third motion, requests that the record be reopened for the purpose of taking the testimony of its president, C. S. Baker, who, according to the re- spondent, was unable to testify at the time of the hearing or there- after, within the time allowed by the Trial Examiner for the taking of his deposition, because of ill health. In support of this motion the respondent alleges that C. S. Baker was the respondent's chief nego- tiator in its dealings with the Union. The respondent contends that Baker's testimony is necessary to complete its defense with respect to the allegations of the complaint. Viewing the record as a whole, it appears that Baker's testimony would be relevant only insofar as it might relate to the issue of whether the respondent refused to bargain during the period of oral negotiations between the parties extending from March 7-through August 17, 1944. Thereafter, the parties en- gaged in no oral discussions relative to the negotiation of a contract, all their dealings being conducted by mail. All these written com- munications are contained in the record. Since our unfair labor prac- tice findings, as hereinafter indicated, are based on the respondent's conduct subequent to August 17, 1944, as reflected by the correspond- ence between the respondent and the Union and by certain unilateral " See Matter of Gzbbs Corporation . 74 N L. R B. 1182 , and cases cited therein. 6 See Matter of Smith & Corona Typewriters, Inc, 11 N L R B 1382, 1384 1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD action admittedly taken by the respondent. we conclude that it would serve no useful purpose to reopen the record to take Baker's testimony as requested by the respondent. Accordingly, the respondent's motion to reopen the record is denied. 2. The Trial Examiner found, and we agree, that the respondent has refused to bargain with the Union, in violation of Section 8 (5) and 8 (1) of the National Labor Relations Act prior to the recent 'amendment thereof.' In so concluding, however, we do not rely upon, nor do we affirm, the Trial Examiner's subsidiary finding that the respondent refused to negotiate on all bargainable issues of a contract during the period of oral negotiations between the parties extending from March 7 to August 17,1944. Upon the basis of this record, which lacks the testimony of the respondent's chief negotiator, President C. S. Baker, we are not convinced that such a conclusion is justified. For the same reason we do not adopt the Trial Examiner's finding that the respondent violated Section 8 (5) of the Act by granting vacations unilaterally in July 1944. Nor do we adopt the Trial Examiner's finding that the respondent violated the Act by effecting certain uni- lateral changes with respect to individual wage rates and the operation of the foundry, without consulting the Union, for we do not find suffi- cient evidence in the record concerning these matters to support the Trial Examiner's finding. We base our finding of refusal to bargain upon the conduct engaged in by the respondent subsequent to the Regional War Labor Board's directive and order of July 25, 1945. The record reveals that there- after the Union, on a number of occasions, sought unsuccessfully to reopen bargaining negotiations with the respondent. Thus, on July 30, 1945, the Union by letter requested the respondent to meet with it for the purpose of concluding a contract pursuant to the directive and order. The respondent did not reply to this letter, but on January 25, 1946, answered the Union's second written request as follows : We are willing to meet with you at any reasonable time for the purpose of discussing a contract. Before arranging the date for such a meeting will you please submit a letter outlining the con- tract terms you propose. On January 30, 1946, the Union mailed to the respondent a proposed contract and repeated its request for a meeting and on February 6 received the following reply from the respondent : B See the Labor Management Relations Act, 1947 , amending the National Labor Relations Act The provisions of Section 8 (5) and 8 ( 1) of the National Labor Relations Act, which the Trial Examiner herein found were violated , are continued in Sections 8 (a) (5) and 8 (a) (1) of the amended Act. BAKER MANUFACTURING COMPANY 1015 The proposal which you have sent is practically the same as the one we discussed with you and your Mr. Carlstrom at great length. Whereas we are willing to discuss a new proposal, we believe that further discussion without at least some new point in the proposed contract which we have already rejected would be fruitless. By letter dated February 13 the Union again requested the respond- ent to "set a date for a meeting." Though the Union admitted, in this letter, that the document it had mailed to the respondent was similar to the proposed contract previously rejected by the respondent, it explained that the document had not been submitted as a final pro- posal but rather as a point of departure for further discussions be- tween the parties with respect to the negotiation of a contract. On April 17, 1946, the Union reiterated its request that the respondent meet with it for the purpose of negotiating a contract. In refusing this request, the respondent by letter dated April 24, referred the Union to the respondent's letter of January 25. In a final attempt to comply with the respondent's conditional offer to reopen contract nego- tiations, the Union, on April 29, 1946, addressed a letter to the respond- ent setting forth the subjects such as "Recognition, hours of work, vacations, wages" etc., which it desired to discuss and "to be embodied in contract form" and requesting the respondent to "set a date so we may draw up, and sign a working agreement along the above lines." The respondent did not answer this letter, nor has it since met with the Union as requested. Under these circumstances, we are convinced and find that by refus- ing to meet with the Union following the issuance of the Regional War Labor Board's directive and order, notwithstanding the Union's repeated written requests indicative of its willingness to reopen con- tract negotiations unconditionally, the respondent has refused to bar- gain collectively with the Union in violation of Section 8 (5) of the Act. In addition we find, as did the Trial Examiner, that by granting a unilateral general wage increase in the spring of 1946 at a time when the Union was attempting to reopen bargaining negotiations, the re- spondent failed to perform its statutory duty to bargain collectively with the Union. 3. No issue with respect to the general appropriateness of the bar- gaining unit established in 1944 by the prior Agreement for Consent Election signed by the parties has been raised in this proceeding. We note, however, that the unit includes certain supervisors, namely, as- sistant foremen, who should be excluded as no longer being "employees" within the meaning of the Act as amended. We note further that the 1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit includes persons employed at "watchmen" by the respondent. The record contains no evidence as to the duties and functions of these employees and, therefore, it is not possible to determine whether they fall within the definition of "guard" contained in Section 9 (b) (3) of the amended Act.7 In order to ensure the appropriateness of the bargaining unit under the policy of the Act as amended we shall ex- clude the "watchmen," without prejudice to their inclusion at a later date if it then be determined in a proper proceeding that they are not employed as guards within the meaning of Section 9 (b) (3) of the amended Act. Accordingly, we shall amend the unit by eliminating therefrom the assistant foremen and watchmen presently included therein. We find that all production and maintenance employees of the re- spondent's Evansville, Wisconsin, plant, excluding watchmen, fore- men, assistant foremen, and all other supervisors, constitute a unit appropriate for the purpose of collective bargaining within the mean- ing of Section 9 (b) of the Act. Inasmuch as neither the unit previously established by the consent election agreement and on the basis of which the respondent refused to bargain, nor the Union's majority status as established by the election, will be substantially altered by the additional exclusions here- inabove referred to, we find that such exclusions do not affect our finding, as previously indicated above, that the respondent in refusing to bargain collectively with the Union violated Section 8 (5) and 8 (1) of the Act. 4. Inasmuch as it appears that the Union has not yet complied with the provisions of Section 9 (f), (g), and (h) of the Act, as amended, which provisions are now in effect, we shall, in accordance with our previously announced policy, modify the recommended order of the Trial Examiner by conditioning our order, in part, upon com- pliance by the Union with that section of the amended Act within 30 days from the date of the Order herein s ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor 7 Section 9 (b) (3) of the amended Act provides , in part, "that the Board shall not decide that any unit is appropuate for such purposes if it includes , together with other employees, any individual employed as a guard to enforce against employees and other persons rules to protect property of the Employer of to protect the safety of persons on the Employer's premises " 8 See Matter of Marshall and Bruce Company, supra ; Matter of Plankinton Packing Company, 75 N L R. B. 241. For reasons stated in the Marshall and Bruce case, we hereby deny the respondent ' s motion dated October 10, 1947, for dismissal of the complaint on the grounds that the Union had failed to comply with the provisions of Section 9 (f), ( g), and (h) of the Act as amended. BAKER MANUFACTURING COMPANY 1017 Relations Board hereby orders that the respondent, Baker Manufac- turing Company, Evansville, Wisconsin, and its officers, agents, suc- cessors, and assigns shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Local 416, United Auto- mobile, Aircraft &Agricultural Implement Workers, UAW-CIO, if and when said labor organization shall have complied, within 30 days from the date of this Order, with Section 9 (f), (g), and (h), of the Act as amended,9 as the exclusive bargaining representative of all production and maintenance employees of the respondent at its Evans- ville, Wisconsin, plant, excluding watchmen, foremen, assistant fore- men, and all other supervisors; (b) In any other manner interfering with the efforts of Local 416, United Automobile, Aircraft & Agricultural Implement Workers, UAW-CIO, if and when said labor organization shall have complied with the filing requirements of the Act, as amended, in the manner set forth above, to negotiate for or to represent the employees in the aforesaid bargaining unit, as their exclusive bargaining representative. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act; (a) Upon request, and upon compliance by Local 416, United Auto- mobile, Aircraft & Agricultural Implement Workers, UAW-CIO, with the filing requirements of the Act, as amended, in the manner set forth above, bargain collectively with said union as the exclusive representative of all its employees in the aforesaid appropriate unit, with respect to grievances, labor disputes, wages, rates of pay, hours of employment or other terms or conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement ; (b) Post in conspicuous places throughout its plant at Evansville, Wisconsin, copies of the notice attached hereto marked "Appendix A." 10 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the re- spondent's representative, be posted by the respondent immediately upon receipt thereof and maintained by it for thirty (30) consecutive days thereafter and also for an additional thirty (30) consecutive days in the event of compliance by Local 416, United Automoble, Aircraft & Agricultural Implement Workers, UAW-CIO, with the filing re- quirements of the Act as amended, in conspicuous places, including all n As to as hat constitutes compliance in this respect, see Matter of Northern Virginia Broadcasters, Inc, 75 N L. R B 11. 11 In the event that this Order is enforced by decree of a Circuit Court of Appeals, there shall be inserted before the words "A Decision and Order" the words "Decree of the United States Circuit Court of Appeals Enforcing " 1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material ; (c) Notify the Regional Director for the Thirteenth Region in writing, within ten (10) days from the date of this Order, and again within ten (10) days from the future date, if any, on which the re- spondent is officially notified that Local 416, United Automobile, Air- craft & Agricultural Implement Workers, UAW-CIO, has met the condition hereinabove set forth, what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the respondent has engaged in unfair labor practices by (1) making unilateral changes in the rules against smoking in the foundry, (2) refusing to negotiate with the Union relative to the discharge of Edna Clark, and (3) locking out its employees from September 21, 1944, to September 25, 1944, be, and it hereby is, dismissed. APPENDIX A NOTICE To ALL E,IIPLOTEls 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 refuse to bargain collectively with Local 416, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS, UAW-CIO, as the exclusive representative of all the employees in the appropriate unit described below; provided said labor organization complies, within thirty (30) days from the date of the aforesaid order of the Board, with Sections (9) (f), (g), and (h) of the National Labor Relations Act, as amended. WE WILL NOT in any other manner interfere with the efforts of Local 416, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLE- MENT WORKERS, UAW-CIO, to negotiate for or represent em- ployees of the said bargaining unit, as their exclusive bargaining agent; provided said labor organization complies within thirty (30) days from the date of the aforesaid order of the Board, with Section 9 (f), (g), and (h) of the National Labor Relations Act, as amended. WE WILL BARGAIN collectively upon request with Local 416, UNITED AUTOMOBILE, AIRCRAFT & AGRICULTURAL IMPLEMENT WORKERS, UAW-CIO, as the exclusive bargaining representative of all employees in the unit described herein with respect to labor BAKER MANUFACTURING COMPANY 1019 disputes, grievances, wages, rates of pay, hours of employment, or other terms or conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement; provided said labor organization complies within thirty (30) days from the date of the aforesaid order of the Board, with Section 9 (f), (g), and (h) of the National Labor Relations Act, as amended. The bargaining unit is: All production and maintenance employees of the respondent at its Evansville, Wisconsin, plant, excluding watchmen, fore- men, assistant foremen, and all other supervisors. All our employees are free to become or remain members of the above- named union or any other labor organization. BAKER MANUFACTURING COMPANY, Employer. Dated--------------- By ----------------- --------------------- (Repiesentative ) ( Title) INTERMEDIATE REPORT Mr Erwin A. Peterson. for the Board. Messl s Walter Nitcher and J Gordon Baler, both of Evansville, Wis., for -the respondent. 11r Hairy Leltne^ t, of Rockford , Ill , for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed on March 22, 1946, by Local 416, United Automobile, Aircraft & Agricultural Implement Workers, UAW-CIO, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Thirteenth Region ( Chicago, Illinois ), issued its complaint, dated September 13, 1946, against Baker Manufacturing Company, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section S (1) and ( 5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat 449, herein called the Act. Copies of the complaint, to- gether with notice of hearing thereon , were duly served upon the Respondent and the Union With respect to the unfair labor practices , the complaint alleged in substance: (a) that all production and maintenance employees of the Respondent , excluding office and clerical employees , foremen and other supervisory employees having authority to hire, discharge or effectively recommend such action , constitute a unit appropriate for the purposes of collective bargaining, and that on February 25, 1944. a majority of the employees in the above-described unit designated the .Union as their representative for the purposes of collective bargaining ; (b) that on and after February 25, 1944, the Respondent has failed and refused to bargain in good faith with the Union; (c) that from September 21, 1944, to September 25, 1944, the Respondent did lock out its employees for the reason that they joined or assisted the Union or engaged in other concerted activities; (d) that by-the 1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above-described conduct the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) and (5) of the Act. The Respondent filed with the Regional Director an answer and Motion for a Bill of Particulars, dated September 23, 1946. The motion was referred to the Chief Trial Examiner and was granted. In addition thereto the Respondent was given leave to file an amended answer if it so desired. The Board filed a Bill of Particulars and Cross Demand for Bill of Particulars, dated October 2, 1946. The Cross Demand was denied. The Respondent's answer admitted that it was engaged in commerce within the meaning of the Act and that at an election conducted by the Thirteenth Regional Office of the Board on February 25, 1944, the Union was designated their bargain- ing representative by the employees within the appropriate unit heretofore-de- scribed, but denied that it had locked out its employees or engaged in any of the unfair labor practices alleged in the complaint. Pursuant to notice, a hearing was held on October 8 to 12, 1946, inclusive, before Louis Plost, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The Board was represented by counsel, the Respondent by counsel and its vice president, and the Union by a representative. All parties participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. At the conclusion of the Board's case-in-chief, the.Respondeut moved to dismiss the complaint. The undersigned denied the motion. The Respondent thereafter moved to dismiss certain allegations of the complaint, which motions the under- signed likewise denied. At the close of the hearing, the Respondent moved for an indefinite continuance on the ground that a material witness was ill. The undersigned denied the motion and stated on the record that he would close the hearing subject to taking the testimony by deposition on October 22, 1946.1 Over objection, the undersigned granted a motion by the counsel for the Board to conform all the formal pleadings to the proof in such matters as dates, spelling, and other minor variances. The parties were afforded an opportunity to argue orally on the record and to file briefs with the undersigned. The attorney for the Respondent presented an oral argument. A brief has been received by the undersigned from-,the Regpond- ent. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, Baker Manufacturing Company, is a Wisconsin corporation having its principal plant at Evansville, Wisconsin, where it is engaged in the manufacture and sale of windmills and various types of water pumping equipment. The Respondent annually purchases and transports in interstate commerce raw ' The Respondent after the close of the hearing moved to postpone the taking of the deposition to November 1 The undersigned granted the motion The deposition was not taken because of the continued illness of the witness The Respondent did not request a further continuance. Under date of November 6, 1946, the attorney for the Board moved to close the record. The motion was granted on December 6. BAKER MANUFACTURING COMPANY 1021 materials in excess of $100,000 for use in the manufacture of its products. The principal raw materials so purchased and transported by the Respondent consist of steel, iron, and sheet metal The Respondent ships annually in interstate com- merce finished products valued in excess of $100,000, such shipments being made to points outside the State of Wisconsin. The Respondent concedes and the under- signed finds that it is engaged in commerce within the meaning of the Act, II. THE ORGANIZATION INVOLVED Local, 416, United Automobile, Aircraft & Agricultural Implement Workers, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain 1. The appropriate unit and the Union's majority representation therein Upon a petition duly filed by the Union alleging that a question of representa- tion had arisen concerning the representation of certain of the Respondent's employees at its Evansville, Wisconsin, plant, to wit: All production and maintenance employees including assistant foremen and watchman, but excluding foremen and other supervisory employees hav- ing authority to hire or fire or to effectively recommend such action, and office and clerical employees, the Respondent and the Union entered into an Agreement for Consent Election. Pursuant to the terms of said agreement the Regional Director for the Thirteenth Region, on February 25, 1944, conducted an election for the purpose of deter- mining a bargaining representative among the Respondent's employees within the alleged appropriate unit. On March 2, 1944, the Regional Director issued his Consent Determination of Representatives finding that the Union had been designated by and was the exclusive representative of all the employees in the above-described unit.' No evidence was offered to rebut the presumption of the Union's continuing representative status flowing from the aforesaid certification. The undersigned accordingly finds that pursuant to Section 9 (a) of the Act the Union has been at all times on and after February 25, 1944, and now is, the exclusive representative of the employees within the above-described unit, and that the said unit "is appropriate for the puposes of collective bargaining within the meaning of Section 9 (b) of the Act. 2. The refusal to bargain a. The negotiations for a contract As herein found, the Regional Director's Consent Determination of Representa- tives was issued on March 2, 1944. On March 7, by previous arrangement, the Union and the Respondent met to discuss the negotiation of a collective bargaining 2 Case No 13-R-2257. The official Tally of Ballots cast in the election showed Approximate number of eligible voters ------------------------------- 118 Valid votes counted______________________________________________ 112 Votes for the Union --------------------------------------------- 96 Votes against the Union__________________________________________ 16 1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract. The Union was represented by Harry Lehnert, one of its interna- tional representatives together with the local's bargaining committee, the Re- spondent by Karn, its production manager, and Lewis, its assistant general man- ager The meeting was largely consumed in explanation of the meaning of the various terms of a proposed contract offered by the Union, and closed with an agreement to meet 1 week later at which time the Respondent was to give the Union an answer Approximately 1 week later the parties, represented by the same individuals, met again The contract was discussed, but no agreement, other than tentative agreements on some of the terms of the Union's proposed contract, was reached. The Respondent made no counterproposals. The meet- ing closed with an agreement to resume negotiations on March 22.3 On March 22, the parties met for the third time. At this meeting the Respond- ent was again represented by Karn and Lewis and the Union by the committee and Lawrence Carlstrom, an international representative of the Union Carl- strom testified that at this meeting the proposed contract was discussed in detail, some of the clauses being tentatively agreed upon, some accepted and others rejected. Apparently no counterproposals to the rejected items were offered by the Respondent. The meeting closed with an agreement that the Union redraft its proposal The Union did so and submitted the new draft to the Respondent by mail. Carlstrom further testified that the same individuals met again on March 30. At this meeting which lasted some 3 hours, the Respondent withdrew its former tentative agreements to many of the contract's clauses, and refused to negotiate with the Union on any change in the Respondent's wage scale, advancing as its reason for so doing the existence of a method of computing wages it had followed for some time.' No date was set for a future meeting Carl- strom's above-related testimony was wholly uicon tradicted and is credited by the undersigned. Following the meeting of March 30, the Union requested the United States Conciliation Service to assign a Conciliator to meet with the Union and the Respondent Carlstrom testified credibly and without material contradiction that a Con- ciliator5 assigned by the United States Conciliation Service met with the parties on April 19, 1944. The meeting began at 3: 45 p m. and continued until 2: 45 a. in. of the following clay At this meeting the Respondent was represented by C S. Baker, its president, and J. Gordon Baker, its vice president. The Union's proposed agreement was again discussed in detail and although the parties reached agreement or tentative agreement on some of the articles, others were rejected by the Respondent. The matter of wages, vacations, union security and arbitration were to a large extent the stumbling' blocks to full agreement between the parties. The Respondent refused to negotiate the matter of wages or to reconsider the position it had formerly taken on this proper subject of negotiation. 3 Lehnert's testimony, upon which these findings are based, was substantially corroborated by Arthur S Templeton and John Gundlach, members of the Union's committee. Karn and Lewis were not called as witnesses " The Respondent's wage policy is controlled by a wage plan which is part of its Articles of Incorporation Under this plan employees are paid (1) fixed wages, known as partial wages and (2) participate in a division of profits in the form of a stock dividend, called "remaining wages " The stock dividend is paid only in years that profits accrue The stock dividend is paid to all employees and the stock so distributed has a market value. Apparently nearly all of the Respondent's employees are stockholders The record dis- closes, however, that the amount paid as "pat teal a ages" can be determined by management without authorization of the stockholders. 6 Major James P. Holmes. BAKER MANUFACTURING COMPANY 1023 After the proposed contract had been thoroughly discussed. the Union asked if the Respondent would put the agreed articles into the form of a partial contract. The Respondent declined to (1o so but at the request of the Union it did agree to draft a proposal which it would submit to the Union and the Conciliator. Under date of April 21, 1944, the Respondent mailed to the Union a copy of the Union's contract, in which it Indicated the portions thereof acceptable to the Respondent The Respondent's accompanying letter, addressed to Carlstrom and signed by C S. Baker, read as follows : In accordance with your suggestion, I have taken the proposed contiact dated March 30 and revised it as indicated by notes taken in the April 19 meeting In cases where the notes were not clear, we have supplied the language I submit it for you to compare with your notes After you have done so, you may indicate any corrections you deem proper and return it to us and we will then give the matter our formal consideration. The Company does not consider a negotiation in good faith unless both parties are acting with the hope of bringing about a complete settlement. There were in the meeting of April 19, at least some indications in the opinion of the Company that the Union seeks a partial settlement through negotiation with the Company with the view of receiving supplementary rights through the War Labor Board which are not voluntarily acceptable to the Company. The Company holds that if this is correct, any tentative offer made on the assumption that both parties were seeking a complete settlement may be ethically withdrawn. Because of this situation, the Company has taken the following position. If all-the terms of the contract are to be decided by negotiation between the Union and the Company, then the Company tentatively agrees to the attached terms. If on the other hand any term of the contract is to be decided by a body having authority over the Company, then no terms thus far proposed are tentatively agreeable. The Union next petitioned the National War Labor Board which referred the dispute (meaning the failure of the Union and the Respondent to agree on the terms of a contract) to a tripartite panel for hearing. On July 25, 1944, on due notice, a tripartite panel for the Regional War Labor Board held a hearing on the matter at Madison, Wisconsin. Both parties were in attendance and partici- pated. On August 9, 1944, the panel issued a directive that the parties reenter collective bargaining negotiations. On August 17, the Union and the Respondent met pursuant to the panel's order. The Respondent was represented by its President and Vice President, the Union by its committee and Lehnert. Lehnert testified that at this meeting the Re- spondent presented a proposed contract to the Union and that the parties dis- cussed the proposed contract in detail, paragraph by paragraph. The Union accepted certain portions of the Respondent's proposed agreement but again the Respondent refused to discuss its then effective wage scale. As to those portions of the proposed contract on which no agreement was reached Lehnert testified : The Company said this was it and we could take it or leave it. I told them that the Union absolutely could not accept this as a contract and we would have to go into the disputed issues if we wanted to get anywhere. We went into quite a discussion on it, but there was no chance of going back and discussing these other important issues with the company. And so, in a matter of time, we adjourned the meeting. 1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lehnert further testified Q Did the Company discuss with you further the points which you called still in dispute after agreeing on the various sections of the Company's proposal? A. No. The Company would not discuss them with us and would not agree to any change from their position here. They said we could talk about them as much as we wanted to and we could go over them as many times as we wanted to, but the answer would be "No." Templeton and Gundlach corroborated Lehnert. On October 13, 1944, the Respondent wrote the Union : OCTOBER 13, 1944 UAW, Local #416, CIO, ;315 Lincoln Street, Evansville, Wisconsin. Attention : Arthur Templeton, President. DEAR Sias: This is to inform you that since our contract offer of August 17 was not acceptable to you and since for a reasonable length of time we have not heard from you on the matter, we are hereby withdrawing the offer. Yours truly, (Signed) J. G BAKER, Personnel Department. On the Union's application the National War Labor Board conducted another Panel hearing on the matter on October 11, 1944 On December 19, 1944, the Panel recommended a contract complete in all its terms to the parties The Respondent did not sign this recommended contract. On July 25, 1945, the Regional War Labor Board for the Sixth Region ordered the parties to sign a contract embodying terms contained in its Directive and Order. On July 30, 1945, and again in April 1946, the Union resquested the respondent to meet with it and conclude a contract in accordance with the Regional War Labor Board order. The Respondent has not met with the Union as requested. b. Unilateral action by the Respondent (1) Wage changes There is evidence that certain of the Respondent's employees, some of whom were members of the Union, sought wage increases of the Respondent directly and not through their, bargaining agent. The Respondent and the Board stipulated that between August 1944, and March 1946, the Respondent made increases and decreases in "partial wages" to various production and maintenance employees without consultation or ne- gotiation with the Union. There is also in evidence in the record that the Respondent granted vaca- tions unilaterally. Vice-president Baker testified that in the Spring of 1946, the Respondent granted a general increase in "partial wages " The Respondent and the Board further stipulated that prior to the wage increase made in 1946 numerous employees demanded increases in pay and 6 See footnote 4, supra BAKER MANUFACTURING COMPANY 1025 threatened to quit the respondent's employ if such increases were not granted immediately and that following such demands the Respondent granted wage increases without consulting the Union. (2) Changes in plant operation The Respondent and the Board stipulated that on or about February 13, 1946, the Respondent without consultation or negotiation with the Union posted in its plant a notice 7 to the effect that its foundry would resume regular operations on Saturdays. Othei than the stipulation there is nothing further in the record by way of explanation of the incident. However, inasmuch as a change in plant operation is properly a subject for collective bargaining, the Respondent's unilateral action was clearly violative of the Act. Concluding findings The attorney for the Respondent in his oral argument contended that although the Act requires an employer to bargain in good faith with the legal representative of his employees it does not require that he must come to an agreement or to sign a partial contract However, the attorney for the Respondent in his argument lost sight of the fact that at the time his client tendered the Union its proposed contract the Respondent refused not only to enter into a partial agreement, which position it could legally take under the circumstances, but it also stated that the only agreement the Union could obtain was the one tendered by the Respondent. Inasmuch as the Respondent had taken the position from the very beginning of the negotiations that it would not negotiate regarding its wage scale, and as the Respondent's proposed agreement maintained this position, the Respondent's statement, in the opinion of the undersigned, shows not a desire to bargain to a conclusion but a fixed determination not to bargain at all. From the entire record the undersigned is convinced that such a determination on the part of the Re- spondent existed from the very beginning of the negotiations between the parties. There is nothing in the record to convince the undersigned that the differences between the parties might not have been resolved had not the Respondent closed the door to further negotiations by its declaration to the effect that it would talk to the Union as much as the Union wished but that in no event would it accept any agreement other than its own Furthermore, by making unilateral changes in its wage scale, a matter on which it had refused to bargain, and working con- ditions and vacations, the Respondent demonstrated an entire lack of good faith in bargaining and effectively undermined the Union in its efforts to fulfill its ob- ligations as bargaining representative, thereby engaging in conduct violative of Section8 (5) of the Act. The undersigned therefore finds that on and after February 25, 1944, by en- gaging in the conduct above set out, namely, by refusing to negotiate on all bargainable issues of a contract, and by the various changes in wage rates and vacations unilaterally made between August 1944 and March 1946, as herein found, and by the change in working conditions made on or about February 13, 1946, as stipulated and as herein found, and by the totality of the above conduct, the 7 NOTICE Beginning February 16th, 1946, the Foundry will again resume regular operation on Saturdays (Signed ) K. A. ELLIS FEBRUARY 13, 1946 1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent has refused to bargain collectively with the Union as the exclusive representative of certain of its employees within an appropriate unit, and thereby has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. (3) Alleged refusal to bargain by the Respondent (a) The alleged unilateral change in the rule regai dung smoking in the foundry The Bill of Particulars filed by the Board alleges : The Respondent on or about March 7, 1946 , unilaterally changed working conditions in its foundry operation by prohibiting the employees from smok- ing in the foundry, such action affecting employees in the unit alleged to be appropriate in paragraph 3 of the Complaint, without ptior consultation or negotiations with the Union relative thereto. The only witness called on this allegation was John Gundlach who testified that sometime in February or March 1946 , a notice relative to smoking was posted in the foundry ; that he did not recall what the notice stated ; that he was not sure that the notice applied to the foundry ; that he remembered seeing a notice that there would be no smoking in the foundry ; that smoking was permitted in the foundry during regular rest periods : and that the custom of smoking in the foundry has not been changed. On the state of the record the undersigned will recommend that the complaint be dismissed insofar as it alleges that the Respondent unilaterally changed the working conditions of the foundry by prohibiting smoking. (b) The alleged refusal by the Respondent to negotiate with the Union relative to the discharge of Edna Clank The Bill of Particulars alleges that: The respondent in March 1944 refused to discuss or negotiate with the Union relative to the discharge of Edna Clark , an employee in the unit al- leged to be appropriate in paragraph 3 of the complaint. The record shows that on an undisclosed date but before the election found herein to have been conducted on February 25, 1944, the Respondent discharged employee Edna Clark allegedly for cause. Lehnert testified that on February 25, immediately following the election. he had a conversation with Production Manager Barn Lehnert testified : It was more or less a general conversation , . and at that time I spoke to him about a woman who had been discharged by the name of Clark. I can't recall how it was said , but I remember him telling me at the time that as far as this one discharge case that was settled and he would not discuss that with us as the bargaining agent. Carlstrom testified that at the meeting conducted by the Conciliator on April 19, 1944: We briefly touched upon Clark's discharge. The company said that Clark was discharged because of misconduct . And we asked what Mrs. Clark's misconduct consisted of, and were told that she had refused to do what she had been asked to do, namely , go and get the mail. And for that reason she was discharged. BAKER MANUFACTURING COMPANY 1027 Templeton, the Union's president, testified that the Union received an explana- tion of Clark's discharge from the Respondent. The record discloses that on February 25, 1944, the Union filed a charge with the Thirteenth Regional Office alleging that Claik had been discriminatorily- discharged and further that on March 22, 1944, the Regional Director informed the Respondent that the charge had been withdrawn without prejudice It is clear that Clark was discharged before the Union proved its status as the accredited bargaining agent of the Respondent's employees; that on the last occasion at which the Union raised the question of Clark's termination, the Union's charge involving the discharge had been withdrawn for approximately 1 month, and that the Respondent gave an explanation of the discharge to the Union. There is nothing in the record to show that the Union seriously pressed the matter of Clark's discharge with the Respondent or made any more than a cursory effort to bargain regarding Clark's discharge, and moreover, the Union at no time questioned the validity of the Respondent's excuse in any of the negotia- tion meetings The undersigned is therefore persuaded that the Union accepted, the Respondent's explanation at the time it was made and no negotiations were held on Clark's discharge because none were seriously sought by the Union. The undersigned will therefore recommend that the complaint be dismissed insofar as it alleges that the Respondent refused to negotiate with the Union relative to the discharge of Edna Clark. (4) The alleged lockout8 On Monday, September 18, 1944, the Respondent discharged employee Robert Fraser, allegedly for cause.' Prior to Fraser's discharge the Respondent in- formed Union ]'resident Templeton that Fraser would be discharged. Temple- ton asked for a meeting with the Respondent, and a meeting was set for Tuesday, September 19 At 7 a m. before work began, on September 19, the Respondent's employees spontaneously struck Templeton testified : Well as near as I could find out from the talk that was going around, was the fact that they were afraid maybe the same thing would happen to them, and they thought it was time something should be done about the way manage- ment was handling their problems about not giving the bargaining unit a chance to bargain. At approximately 8 a in. of the same day the Union committee met with the Respondent who was represented by C. S. Baker and J. Gordon Baker. The Respondent asked the committee to "Bring them back as soon as you can." It was further agreed that if the strikers returned to work, the Respondent should ieceive 12 hours advance notice before resuming operations. On the afternoon of September 19, the Union met and voted to return to work on Thursday, September 21. No conditions were attached to the Union's offer to return to work; however, the committee was instructed to negotiate with the Respondent regarding Fraser's reinstatement to his former job On Wednesday, September 20, the Union com- mittee met with the Respondent, informed it of the Union's action and requested that Fraser be returned to his former position The Respondent declined to i einstate Fraser in his old job but offered him the choice of a position at less money in other departments. On September 20, following its meeting with the Union's commit tee, the Respondent issued the following statement : 8 The findings in this section are based on the undenied testimony of Arthur S Templeton and John Gundlach which the undersigned credits No charge that Fraser's termination was discriminatory was filed with the Board 766972-48-vol 75-66 1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Not for the Press SEPTEMBER 20, 1944. STATEMENT TO REPRESENTATIVES OF THE EMPLOYEES (Arthur Templeton, John Gundlack & Wilbert Blum) 1. The Company feels that the arguments between the workers and the Company should be settled before work resumption is attempted. Reports to the effect that work would be started September 21 were ensued (sic) with- out consulting the Company The Company is not taking the stand that it will open its doors only when everybody is happy, but it feels that work can not be effectively carried out under conditions of strife, especially in view of the report that a new strike is planned immediately after the War Labor Board hearing scheduled for September 22. 2 In order to bring about a settlement, the Company is willing to coin- promise to the extent of attempting to find another job for the man in ques- tion. The Company does not intend to provide a job in violation of the tin- coerced judgment of the foreman involved. The pay for the job, the Company insists, must be consistent with that of others working at similar work with similar skill. 3. The Company realized the general concern for job security and that it is natural for each to consider himself in the position of the discharged man. In this connection the Company would like to point out that there can be no job security if there is no Company security and that Company security is jeopardized if the Union succeeds in forcing its will on the Company against the considered judgment of the Company. (Signed) J. G. Baker, J. G. BAKER, For Personnel Depai tnient. On Thursday, September 21, those of the Respondent's employees repotting for work found the plant closed Also on September 21, the Respondent issued the following statement: TO ALL EMPLOYEES The plant will be open Monday, September 25th, at 7: 00 A. M for those who want to return to work. Regarding the recent controversy, the Company issued the attached state- ment September 20, 1944 to the Union. In accordance with this statement the Company is offering to reinstate R. H. Fraser at any one of the following jobs : Job Base Rate Warehouse Hand___________________________________ 500 Punch Room Hand_________________________________ 500 Galvanizing Hand__________________________________ 500 A reinstatement of R. H. Fraser at his old jobs will require a new Com- pany management. Any employee may obtain a release by applying to the office. (Signed) C. S. Baker C. S. BAKER, Pres. On Monday September 25, 1944, the plant was reopened. BAKER MANUFACTURING COMPANY 1029 The complaint alleges : Respondent from September 21, 1944 to September 25, 1944 did lock out its employees for the reason that they joined or assisted the Union or engaged in other concerted activities The undersigned is not persuaded that the Respondent's acts as hereinabove found constitute a lockout. The strike was spontaneous. Assuming that it was caused by Fraser's discharge, it is not contended that the discharge was in any way violative of the Act. The Respondent informed the Union that Fraser would be discharged and before the event agreed to meet with the Union regard- ing the discharge and in negotiation with the Union it agreed to and did offer Fraser other employment. The Respondent met with the Union in an effort to re- turn the strikers to work but it is not clear that the Respondent agreed to reopen its plant on any date unilaterally chosen by the Union; moreover, although the Respondent suggested that all its difficulties with the Union be settled during the strike negotiations there is no evidence that it made such a settlement a con- dition precedent to opening the plant, nor did it deny employment to any of the strikers when the plant was reopened. In the light of the entire record the undersigned finds that the Respondent did not lock out its employees from September 21, 1944, to September 25, 1944, because of their union adherence and activities and will therefore recommend that the complaint he dismissed inso- far as it so alleges 10 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It having been found that the Respondent has refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, it will be recommended that the Respondent cease and desist from refusing to bargain collectively with the Union and from engaging in like or related conduct, and that upon request-of the Union the Respondent bargain collectively in good faith with'it as the exclusive representative of°its employees in the appro- priate unit with respect to rates of pay, wages, and other terms and conduons of employment. Upon the basis of the above findings of fact, and upon the entire record in the case, the undersigned makes the following : 'O The undersigned is mindful of the fact that the Respondent addi essed its employees directly and not through the Union at the time it issued the announcement regarding the reopening of its plant However, since the Respondent had negotiated with the Union regarding the strike, the undersigned is not convinced under the circumstances that by its action, including the date set for reopening the plant , the Respondent sought to either disparage the Union or to penalize its striking employees 1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF Lxw I Local 416. United Automobile, Aircraft & Agricultural Implement Workers, UAW-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees of the Respondent's Evansville, Wisconsin, plant, including assistant foremen and watchmen, but excluding fore- men and other supervisory employees having authority to hire or fire or to effec- tively recommend :such action, and office and clerical employees, have at all times. material herein constituted and now constitute a unit appropriate for the pur- poses of collective bargaining, within the meaning of Section 9, (b) of the Act 3 Local 416, United Automobile, Aircraft & Agricultural Implement Workers, UAW-CIO, was on February 25, 1944, and at all times thereafter has been, and now is, the exclusive representative of all the employees in the aforesaid appro- priate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4 By refusing on February 25, 1944, and thereafter. to bargain collectively with Local 416, United Automobile, Aircraft & Agricultural Implement Workers, UAW-CIO, as the representative of its employees in the afoies:ud appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce, within the meaning of Section 2 (6) and (7) of the Act. 7 The Respondent has not engaged in unfair labor practices: (a) by making unilateral changes in the rule against smoking in the foundry, (b) by refusing to negotiate with the Union relative to the discharge of Edna Clark, The Re- spondent did not lock out its employees from September 21, 1944, to September 25, 1944, as alleged in the complaint. RECOMMENDATIONS Upon the basis of the foregoing'findings of fact and conclusions of law, the undersigned recommends that the Respondent, Baker Manufacturing Company, Evansville, Wisconsin, its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Local 416, United Automobile, Air- craft & Agricultural Implement Workers, UAW-CIO, as the representative of all production and maintenance employees in its Evansville, Wisconsin, plant, includ- ing assistant foremen and watchmen, but excluding foremen and other supervisory employees having authority to hire or fire or to effectively recommend such action; (b) In any manner interfering with the efforts of Local 416, United Auto- mobile, Aircraft & Agricultural Implement Workers, UAW-CIO, to bargain col- lectively with it. 2 Take the following affirmative action which the undersigned finds will effectuate the policies of the Act • (a) Upon request bargain with the Union as the exclusive representative of the employees in the appropriate unit hereinabove described, on all matters which are properly the subject of collective bargaining between the Union and the Respondent; BAITER MANUFACTURING COMPANY 1031 (b) Post in conspicuous places throughout its plant at Evansville, Wisconsin, copies of the notice attached hereto marked "Appendix A " Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, after being signed by the Respondent's representative, shall be posted immediately by the Respondent upon receipt thereof and maintained by it for sixty (60) consecutive clays thereafter in conspicuous places, including all places where notices to em- ployees are customarily posted Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced, or covered by any other material; (c) Notify the Regional Director for the Thirteenth Region in writing within ten (10) days from the date of the receipt of this Intermediate Report what steps Respondent has taken to comply therewith. It is further recommended that the complaint be dismissed insofar as it alleges that the Respondent made unilateral changes in the rule against smoking in the foundry ; refused to negotiate with the Union relative to the discharge of Edna Clark, and locked out its employees from September 21, 1944, to September 2.5, 1944. it is further iecuinmended that unless on or before ten (10) clays from the date of the receipt of this Intermediate Report, Respondent notify said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. As provided in Section 203 39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 203 33 of said Rules and Regulations, file with the Board, Rochainbeau Building, Washington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or pro- ceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof ; and any party or counsel for the Board may, within the same period, file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. Proof of service on other parties of all papers filed with the Board shall be promptly made as re- quired by Section 203.65. As further provided in said Section 203 39, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board Lotus PLOST, Trial Examiner. Dated December 26, 1946 APPENDIX A NOTICE To ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner 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: 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL BARGAIN COLLECTIVELY , upon request , with Local 416 , United Auto- mobile, Aircraft & Agricultural Implement Workers, UAW-CIO, as the ex- clusive representative of all production and maintenance employees in our Evansville , Wisconsin , plant, including assistant foremen and watchmen, but excluding foremen and other supervisory employees having authority to hire or fire or to effectively recommend such action. WE WILL NOT , in any manner, interfere with the efforts of Local 416, United Automobile, Aircraft & Agricultural Implement Workers, UAW-CIO, to bargain collectively with us. All our employees are free to become or remain members of Local 416, United Automobile, Aircraft & Agricultural Implement Workers, UAW-CIO, or any other labor organization. BAKER MANUFACTURING 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.