J. B. Cook Auto Machine Co., Inc.

In the Matter of J. B. COOK AUTO MACHINE COMPANY, INC. and INTERNATIONAL ASSOCIATION OF MACHINISTS Case No. 10-CA-173.-Decided June,' 9,1949 DECISION AND ORDER On March 4, 1949, Trial Examiner Howard Myers issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (1) and (5) of the Act, and recommending that it cease and desist therefrom and take certain af- firmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report. The Respondent's request for oral argument is hereby denied as the record and the exceptions, in our opinion, ade- quately present the issues and the position of the Respondent. The Board 1 has considered the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was com- mitted. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner except as they are inconsistent herewith. We agree with the Trial Examiner's finding that the Respondent violated Section 8 (a) (1) and (5) of the Act. As fully set forth in the Intermediate Report, the Respondent's officials met and engaged in lengthy discussions with the Union after it was certified in April 1947. Although the conferences extended over a 7-month period, the parties were unable to agree on any substantial issues, primarily be- cause of the Respondent's adamant refusal to grant the wage increase demanded by the Union or to make any offer of a wage increase and its equally positive insistence that agreement be reached on that very 1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the National Labor Relations Board has delegated its powers in connection with this pro- ceeding to a three-member panel [ Chairman Herzog and Members Reynolds, and Gray] 84 N. L. R. B., No. 84. 688 J. B. COOK AUTO MACHINE COMPANY, INC. 689 issue before it would dispose of any other matters. However, through- out the entire period of these fruitless conversations, the Respondent granted individual wage increases to all but 2 of the approximately 26 employees on whose behalf the Union was attempting to bargain, without at any time discussing the increases with the Union. Thus, by, a series of small hourly increases, the Respondent raised the average earnings of these employees by a total of 10 to 15 percent. We are satisfied, as was the Trial Examiner, that these unilateral wage increases, given during the very period when the Union was repeatedly trying to bargain collectively with the Respondent on the subject of wages, prove the bad faith of the Respondent in its deal- ings with the Union. Under these circumstances, we find no merit in the Respondent's contention that the raises were routine and there- fore could be granted without consulting or advising the Union.2 Col- lective bargaining includes the right of the exclusive representative to be consulted and to bargain concerning all matters relating to working conditions. Nor do we deem it significant that some of the employees involved were veterans and by their individual employment agree- ments may have been entitled to periodic increments. The Respondent admitted that the unilateral raises were also given the nonveterans in the bargaining unit, although not required by any contract. Ac- cordingly, we find that in May 1947 and thereafter the Respondent re- fused to bargain collectively with the Union in good faith, thereby violating Section 8• (a) (1) and (5) of the Act,3 and that by grant- ing the aforesaid unilateral wage increases it independently violated Section 8 (a) (1) thereof. ORDER Upon the entire record in this case, the pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, J. B. Cook Auto Machine Company, Inc., Nashville, Tennessee, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with International Associa- tion of the Machinists as the exclusive representative of all employees in the electrical or unit rebuilding department, spring leaf depart- 2 Matter of J H. Allison d Co , 70 N. L. It. B 377 , enforced 165 F ( 2d) 766 (C A 6), cert denied 69 S Ct . 31 ; N. L. R . B. v. Crompton Highlands Mills, Inc ., 337 U S 217, decided May 31, 1949 , 24 L R R M 2088. 3 Unlike the Trial Examiner , we do not rely upon the fact that President Cook attended only one negotiating conference , as there is insufficient evidence to show that the Union made repeated requests for President Cook s attendance at bargaining conferences other than the one which he did attend 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment, and machine shop at the Respondent's Nashville, Tennessee, plant, including the toolroom boy and parts washers, but excluding the carpenter, the warehouse keeper, the head of the electrical or unit rebuilding department, the head of the machine shop, and all other supervisors as defined in the Act; (b) Unilaterally granting wage increases to employees in the afore- said appropriate unit without first consulting International Associa- tion of Machinists, or in any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Inter- national Association of Machinists, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with International Associa- tion of Machinists as the exclusive representative of all employees in the electrical or unit rebuilding department, spring leaf department, and machine shop at the Respondent's Nashville, Tennessee, plant, in- cluding the toolroom boy and parts washers, but excluding the car- penter, the warehouse keeper, the head of the electrical or unit rebuild- ing department, the head of the machine shop, and all other super- visors as defined in the Act, and if an understanding is reached, em- body such understanding in a signed agreement; (b) Post at its plant in Nashville, Tennessee, copies of the notice attached hereto, marked "Appendix A." 4 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent, be posted by the Respond- ent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material; (c) Notify the Regional Director for the Tenth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. * In the event this Order is enforced by a United States Court of Appeals , there shall be inserted before the words "A DECISION AND ORDER " the words : "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING J. B. COOK AUTO MACHINE COMPANY, INC. APPENDIX A NOTICE TO ALL EMPLOYEES 691 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 grant wage increases to the employees in the bargaining unit described herein without first consulting INTERNATIONAL ASSOCIATION OF MACHINISTS. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist INTERNATIONAL ASSOCIATION OF MACHINISTS or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protec- tion, or to refrain from any and all of such activities, except to the extent that such right may be affected by an agreement requir- ing membership in a labor organization as a condition of employ- ment as authorized in Section 8 (a) (3) of the Act. WE WILL BARGAIN collectively upon request with the above- named union as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, wages, hours, and other terms and conditions of employment, and if an understanding is reached, embody such understanding in,a signed agreement. The bargaining unit is: All employees in the electrical or unit rebuilding department, spring leaf department, and machine shop at the Nashville, Ten- nessee, plant, including the toolroom boy and parts washers, but excluding the carpenter, the warehouse keeper, the head of the electrical or unit rebuilding department, the head of the machine shop, and all other supervisors. Dated-------------------- J. B. COOK AUTO MACHINE COMPANY, INC., Employer. By --------------------------------------------- (Representative ) ( Title) This notice must remain posted for sixty (60) consecutive days from the date hereof, and must not be altered, defaced, or covered by any other material. 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT Frank E. Hamilton, Jr., Esq., for the General Counsel. Ernest Al. Hawkins, Jr., Esq., of Nashville, Tenn., for the Respondent. Messrs. John W. Carlton and H. C. Sumvmers, of Birmingham, Ala., and Nash- ville, Tenn., respectively, for the Union. STATEMENT OF THE CASE Upon a charge duly filed on January 22, 1948, by the International Association of Machinists, herein called the Union, the General Counsel of the National Labor Relations Board, herein called, respectively, the General Counsel and the Board, by the Regional Director for the Tenth Region (Atlanta, Georgia), issued a complaint, dated January 7, 1949, alleging that J. B Cook Auto Machine Com- pany, Inc., herein called the Respondent, had engaged in, and was engaging in, unfair labor practices affecting commerce, within the meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint and charge, together with notice of hearing thereon, were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint, as amended at the hearing, alleged, in substance, that (1) on or about April 8, 1947, and at all times thereafter, the Respondent refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, although the Union had been selected and designated as their representative by a majority of such employees and had been certified by the Board as their exclusive repre- sentative; and (2) on or about July 1, 1947, and thereafter, the Respondent bargained directly and individually with its employees in the appropriate unit concerning rates of pay, wages, hours of employment, and other conditions of employment, and granted wage increases to the said employees The Respondent duly filed an answer admitting certain allegations of the complaint with respect to its corporate existence, the nature and extent of the business transacted by it, but denying the commission of any of the alleged unfair labor practices. Pursuant to notice, a hearing was duly held on February 1, 1949, at Nashville, Tennessee, before IToward Myers, the duly designated Trial Examiner. The General Counsel and the Respondent were represented by counsel and the Union by representatives. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence relevant to the issues. At the conclusion of the General Counsel's case-in-chief, counsel for the Res- pondent moved to dismiss the complaint for lack of proof. The motion was denied. At the conclusion of the taking of evidence, the General Counsel moved to conform the pleadings to the proof. The motion was granted without objec- tion. Respondent's counsel then renewed his motion to dismiss. Decision thereon was reserved. The motion is hereby denied. Oral argument, in %vbich the General Counsel and counsel for the Respondent participated, was then heard. The parties were then advised that they might file briefs and/or proposed findings of fact and conclusions of law with the undersigned on or before February 14, 1949. A brief has been received from the Respondent's counsel which has been duly considered. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: J. B. COOK AUTO MACHINE COMPANY, INC. FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT 693 J. B. Cook Auto Machine Company, Inc., a Tennessee corporation, has its prin- cipal offices and place of business at Memphis, Tennessee, with branches at Nashville, Tennessee, and at Little Rock, Arkansas. This proceeding involves only the employees at the Respondent's Nashville plant. At this plant, the Respondent is engaged, and during all times material herein has been engaged, in the sale and distribution of automotive parts, and in rebuilding, assembling, and repairing automobile parts and gasoline and Diesel engines. During the 12-month period ending June 2, 1948, which period is representa- tive of all times material herein, the Respondent's purchases aggregated ap- proximately $500,000, of which about 90 percent was purchased outside the State of Tennessee and shipped from points located outside that State to the Respond- ent's Nashville plant. During the same period, the Respondent's sales at its Nashville plant amounted to approximately $800,000, of which approximately 15 percent was shipped to customers located outside the State of Tennessee The Respondent concedes, and the undersigned finds, that during all times material herein, it now is, and has been, engaged in commerce, within the mean- ing of the Act II. THE LABOR ORGANIZATION INVOLVED International Association of Machinists, unaffiliated, is a labor organization admitting to membership employees of the Respondent's Nashville plant. III. THE UNFAIR LABOR PRACTICES A. The Respondent's refusal to bargain collectively with the Union 1. The appropriate unit and the Union's majority status therein On October 28, 1946, upon the Union's petition for an investigation and cer- tification of representatives, the Board conducted a prehearing election in Case No. 10-R-2177. Of the approximately 62 eligible voters, 59 cast ballots, of which 24 were for the Union and 7 against. Twenty-eight ballots were challenged. Thereafter, pursuant to the Board's Rules and Regulations, a hearing was held at Nashville, Tennessee, before a duly designated hearing officer. On April 8, 1947, upon the entire record in Case No. 10-R-2177, the Board issued its Decision and Certification of Representatives in which it found that all employees of the electrical or unit rebuilding department, spring leaf depart- ment, and machine shop of the Respondent's Nashville plant, including the tool- room boy and parts washers, but excluding the carpenter, the warehouse keeper, the head of the electrical or unit rebuilding department, the head of the machine shop, and all other supervisory employees with authority to hire, promote, dis- charge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constituted a unit appropriate for the pur- poses of collective bargaining with respect to rates of pay, wages, hours of employ- ment, and other conditions of employment. The Board further found in the said Decision and Certification of Representatives that at the October 28, 1946, election, the Union had been designated and selected by a majority of the em- ployees in the aforesaid appropriate unit as their collective bargaining repre- sentative and accordingly so certified the Union as the collective bargaining representative of all the employees in the said appropriate unit. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the instant proceeding, the Respondent denied in its answer the appropri- ateness of the said unit but introduced no evidence to support its contention. Accordingly, the undersigned finds that, during all times material herein all employees of the electrical or unit rebuilding department, spring leaf depart- ment, and machine shop of the Respondent's Nashville plant, including the tool- room boy and parts washers, but excluding the carpenter, the warehouse keeper, the head of the electrical or unit rebuilding department, the head of the machine shop, and all other supervisory employees with authority to hire, promote, dis- charge, or discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constituted, and now constitute, a unit appro- priate for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment, and that the said unit insures to the Respondent's employees here involved the full benefit of their right to self-organization and collective bargaining and otherwise effec- tuates the policies of the Act. As has been already noted, on October 28, 1946, the Union polled a majority of the valid votes cast in the election of representatives conducted by the Regional Director of the Tenth Region among the employees in the aforesaid,approprihte unit On April 8, 1947, the Board accordingly certified the Union as the exclu- sive collective bargaining representative of the employees in the said appropriate unit. The Respondent's answer, in the instant proceeding, denied the allegation of the complaint that at all times since the date of the said election, October 28, 1946, the Union was, and still is, the duly designated collective bargaining repre- sentative of the employees in the appropriate unit but introduced no evidence with respect to this averment. Neither did the Respondent introduce any evi- dence to rebut the presumption of the continuing majority status of the Union The election of October 28, 1946, clearly shows that the Union was designated by a majority of the employees in the appropriate unit as their collective bargain- ing representative, and, therefore, the Board was fully justified in so certifying it as such representative. That the Union since its certification has remained the statutory representative of the employees in the appropriate unit seems unquestionable in view of the state of the record in this case and upon the basis of recognized principles. For, it is to be presumed that once a collective bar- gaining representative has been certified as such by the Board, after a secret election conducted under Section 9 of the Act, it remains such, not only for the period of a year during which the certification will not normally be disturbed, but also thereafter until the contrary is shown or a rival claim of representation 4r; made. This presumption of continuing majority has not been rebutted by the Respondent. The undersigned, therefore, finds that on and since October 28, -1946, the Union has been, and now is, the duly designated collective bargaining representative of a majority of the employees in the unit hereinabove found appropriate and that, pursuant to the provision of Section 9 (a) of the Act the Union has been, and now is, the exclusive representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 2. The refusal to bargain As hereinabove found, upon a petition filed by the Union, the Regional Director for the Tenth Region conducted a secret ballot election on October 28, 1946, among the employees in the appropriate unit; the Union won the election; and, after J. B. COOK AUTO MACHINE COMPANY, INC. 695 a hearing had been had, the Board on April 8, 1947, certified the Union as the collective bargaining representative of all the employees in the appropriate unit Under date of April 30, 1947, the Union mailed a proposed contract to the Respondent In the letter which accompanied the contract, the Union requested that a bargaining conference be held about May 5, at which time the Union would present a proposed duration clause and also clauses with respect to wages and job classifications The initial bargaining conference took place on May 21, 1947, in the office of I-I Y. Crockett, the manager of the Respondent's Nashville plant. Crockett represented the Respondent and the Union was represented by L M. Fagan, a Grand Lodge representative and by H. C. Summers, a business representative of the Union. Also in attendance was the negotiating committee, composed of employees. There, the parties discussed the Union's proposed agreement in its entirety. Although no definite agreement was reached as to any clause of the proposal, Crockett tentatively agreed to some of the clauses. He added that before committing the Respondent lie would have to confer with the Respond- ent's "higher officials" and its attorney. The Union then requested that the Respondent have present at all future negotiating conferences a person with authority to bind the Respondent. Crockett stated that he would try to do so. Before the meeting concluded, the Union agreed to submit to the Respondent, prior to the next meeting of the parties, a proposed duration clause and proposed wage rates. Under date of May 21, the same day that the initial bargaining conference was held, the Union submitted, in writing, to the Respondent proposals respecting the duration of the contract, the wage scale, and the job classifications. The parties met at the office of the Respondent's then attorney on May 29. Crockett and Attorney Ben West represented the Respondent and the Union was represented by the same officials that were present at the May 21 meeting, except that only one member of the negotiating committee was present. Dis- cussions were had with respect to all clauses of the Union's proposed contract. Tentative agreement was reached as to some of the clauses. West and Crockett stated that neither of them could make any, binding commitment without prior approval of J. B. Cook, the Respondent's president The union official's then requested that Cook attend all future negotiating conferences Crockett and West stated that they would endeavor to have him present at all future meetings. On June 12, the parties met again in West's office. There, Crockett stated, according to the credible testimony of Summers, the Union's business repre- sentative, that he could not agree to any of the Union's proposals, even though lie had previously agreed tentatively to some demands, because they were too drastic and that the Respondent could not make any changes in the present operations of its plant. Before the meeting concluded, however, Crockett agreed to submit to the Union a counter-proposed contract. Crockett and West also stated that they would try to have Cook present at the next conference. This statement was made after the Union requested that the Respondent have someone at the conference table who could definitely bind the Respondent because West and Crockett again admitted that they had no authority to bind the Respondent and that the only person who could do so was its president, Cook. On June 25, Cook was present at the meeting that took place in West's office. Also present were West, Crockett, Summers, Alfred Duff, the Union's assistant business representative and a member of the negotiating committee. Tentative agreement was received on some of the Union's proposals Cook stated, how- 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ever, that the Union's demands, presumably its wage demands, were too drastic and that for the Respondent to comply with them would mean that the Re- spondent would have to go out of business. Toward the end of the conference, Cook stated to quote Summers' undenied and credible testimony, "the union was the one that wanted something, and not the company, therefore the union should submit again a new counterproposal, or new proposals to the company that they [the company] might be able to meet, and that until such time [Cook said it was] no use in any further meetings." The meeting concluded with no definite understanding having been reached on any clause of the Union's proposed contract. At the request of the Union, the parties met on July 3. Prior to the meeting, Crockett informed the Union that Ellis Harris had been designated by the Respondent to "handle all phases of the negotiations" on' its' behalf The meet- ing was held at a Nashville hotel, as were all subsequent meetings, and was attended by Summers, Duff, and a member of the negotiating committee. Harris represented the Respondent. Again all clauses of the Union's proposed contract were discussed. Most of the discussion, however, centered about the effective date of the contract, if agreement upon a contract was ultimately reached. Harris stated that he could only tentatively agree to any proposal and that final authority to bind the Respondent would have to come from "higher authority" in the Respondent, presumably Cook. After Harris agreed to confer with "higher authority" to ascertain whether agreement could not be reached respecting the effective date of the contract, the conference adjourned. Again the Union requested that Cook attend all future negotiating conferences. Upon being advised by Harris, subsequent to the July 3 meeting, that he was unable to obtain any commitment from "higher authority" respecting the effective date of the contract, the Union called into the situation the Conciliation Service of the United States Department of Labor. The Conciliator assigned to the matter held a conference with the parties on July 18. Besides the Conciliator, there were present Crockett, Summers, and other union representatives. Agree- ment was tentatively reached respecting some of the Union's demands. With respect to the demands upon which, Crockett would not agree, he stated that he would submit to the Union counterproposals. Summers also agreed to submit to Crockett a new grievance procedure proposal. Again, the Union requested that Cook attend the bargaining conferences Prior to the next meeting with the Conciliator, which was held on August 13, Summers sent to Crockett a revised grievance procedure proposal. Crockett, however, did not submit to the Union any counterproposals. At the meeting, Crockett stated that he had asked the Respondent's attorney to prepare a counter-proposed contract but that the attorney had failed to do so. After a short discussion on some phases of the Union's demands , the meeting ended with Crockett promising to submit to the Union a counter-proposed contract before or at the next meeting. Again the Union requested that Cook attend the meetings. The parties met again on September 4. In the interim, a different conciliator had been assigned to the matter and the Respondent had retained a different attorney. The Union was represented by Summers, L. G. Fenn, a Grand Lodge representative , and a member of the negotiating committee. On behalf of the Respondent, there were present Ernest M. Hawkins, Jr, its newly retained attorney, and Crockett. At this meeting, Hawkins submitted written counter- proposals. Discussion was then had upon them and upon the Union's pro- posed contract . The conference ended with no definite agreement being reached with respect to any proposed clause. However, the Union agreed to submit a J. B. COOK AUTO MACHINE COMPANY, INC. 697 new proposed contract to Hawkins. When Hawkins stated, in effect, that he only could tentatively agree to any clause and that he would have to submit all matters to Cook for final disposition, the Union requested Hawkins to have Cook present at all future bargaining conferences. Under date of September 17, the Union sent to Hawkins and to the Respondent copies of a new proposed contract. The parties met with the Conciliator on October 2 and 22. Lengthy discussions were had on the Union's new proposed contract and the Respondent's September 7 proposals. It would serve no useful purpose to set forth here at length what transpired at these meetings for nothing was agreed to that had not been tentatively agreed to at the previous conferences. In fact, the only thing that the Respondent actually agreed to at these two meetings was to grant the employees five paid holidays, this increased by one the number of paid holidays the Respondent normally granted the employees. Because Hawkins stated that he had no authority to bind the Respondent, the Union, as it did in the past, requested that Cook present himself at the bargaining conference so that agree- ment could be reached and a contract executed. On October 23, Hawkins, Fenn, and Summers met without the Conciliator, who could not be present. An argument between Hawkins and Fenn ensued and therefore nothing of any consequence was accomplished. At the request of Grand Lodge Representative John Carlton, Hawkins came to the Union's offices on November 15 There, Carlton explained to Hawkins that he had been requested by the Grand Lodge president to meet with the Respondent's representatives in order to ascertain if an agreement could be reached respecting a contract. Hawkins agreed to take the matter up with his client and stated he would advise Carlton when he could confer with him. There- after, the parties had an extended exchange of correspondence, but did not thereafter confer. Since November 15, 1947, there have been no negotiating conferences. Cook's absence from the bargaining conferences and the inability of the parties to come to any definite agreement as to wages and job classifications were the main reasons why an impasse arose The Respondent claimed throughout the course of the negotiations that if it granted the increases demanded it would be forced out of business. During the period of negotiations, however, the Respondent, without notifying the Union or consulting with it, granted wage increases to every employee in the unit for which the Union had been certified as the bargaining representative. While it is true, the increases granted were not as high as those demanded by the Union, nonetheless they were put into effect without the knowledge of the Union. B. Concluding findings with respect to the refusal to bargain The above findings, as to the negotiations between the Respondent and the Union show that the Respondent recognized the Union as the collective bargain- ing representative of the employees in the unit in which the Union had been designated and certified, and met with and dealt with the Union as such repre- sentative After consideration and discussion of the Union's proposed contract, the Respondent, in turn, prepared and submitted to the Union certain proposals desired by it. However, the Respondent never definitely agreed to accept any of the proposals submitted by the Union except that it did agree to grant the employees an additional paid holiday The Act, of course, does not require the employer to accept any proposal of the Union. It does, however, require the -698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer to bargain collectively with the statutory representative of his employees in good faith. The parties, after lengthy discussions over a long period of time, came to an impasse but it was not an impasse that eventuated in the course of bona fide collective bargaining. The Respondent's conduct during the negotiat ions, with respect to the granting of the wage increases, evidenced a complete absence of good faith collective bargaining Obviously among the most important elements of employer- employee relationship is the question of wages. The matter was submitted by the Union in its proposals and was discussed at length by the parties. The Respondent's direct grant of the wage increases without agreement or consulta- tion with the Union and while negotiations were in progress, constituted an obvious attempt to settle unilaterally a matter with respect to which the Respondent was under a statutory duty to deal with the Union and with no one else Accordingly, the undersigned finds, upon the facts as summarized above, that the Respondent failed to bargain collectively with the Union in good faith, in violation of Section 8 (a) (5) of the Act The above finding that the Respondent did not bargain collectively with the Union in good faith, is reinforced by a consideration of another aspect of the Respondent's conduct during the negotiations. Thus, Cook, the only person who had authority on behalf of the Respondent to render the bargaining con- ferences anything more than an exchange of ideas, attended only one negotiating conference. It is well settled that the Act obligates the employer to bargain in good faith with the chosen representative of a majority of his employees with respect to all matters which affect wages, hours of employment, and working conditions. The collective bargaining process is initially one of give and take"in which nor- mally each party yields on certain demands and positions in order to gain assent on others, thereby achieving a satisfactory compromise While Cook failed to attend more than one bargaining conference, at which nothing was ac- complished because of the adamant position taken by him, he failed to enlarge the authority of the representatives he instructed to attend the other meet- ings. Accordingly, only on one occasion during the negotiations was the Union afforded an opportunity to confer with or to convince anyone having final un- qualified authority to agree to any proposal of the Union. In sum, the Respond- ent engaged in negative bargaining ; there was, except on one occasion, no op- portunity for "give and take" because no one with authority "to give" or "to take" presented himself at the conference table on behalf of the Respondent. Upon the entire record in the case, the undersigned finds that on May 21, 1947, the date of the first bargaining conference between the parties, and at all times thereafter, the Respondent refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employment, and by such refusal interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1) and (5) thereof. IV. 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 such of them as has been found to be unfair labor J. B. COOK AUTO MACHINE COMPANY, INC. 699 practices, tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent had engaged in unfair labor practices vio- lative of Section 8 (a) (1) and (5) of the Act, the undersigned will recom- mend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies`of the Act. Having found that the Respondent has refused to bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit, the undersigned will recommend that the Respondent, upon request, bar- gain collectively with the Union as the representative of such employees, and if an agreement is reached to embody such understanding in a signed agreement. The scope of the Respondent's illegal conduct discloses a purpose to defeat self-organization among its employees. The conduct engaged in by the Respond- ent, which is specifically violative of Section 8 (a) (1) and (5) of the Act, re- flects a determination generally to interfere with, restrain, and coerce its em- ployees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collec- tive bargaining or other mutual aid or protection, and presents a ready and effective means of destroying self-organization among its employees. Because of the Respondent's unlawful conduct and since there appears to be an under- lying attitude of opposition on the part of the Respondent to the purposes of the Act to protect the rights of employees generally, the undersigned is convinced that if the Respondent is not restrained from committing such conduct, the dan- ger of their commission in the future is to be anticipated from the Respondent's conduct in the past, and the policies of the Act will be defeated. In order, therefore, to make effective the interdependent guarantees of Section 7 of the Act, to prevent a recurrence of unfair labor practices, and thereby minimize indus- trial strife which burdens and obstructs commerce, and thus effectuate the poli- cies of the Act, the undersigned will recommend that the Respondent cease and desist from engaging in any like or related conduct from which it is herein recommended that the Respondent cease and desist. On the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : . CONCLUSIONS OF LAW 1. International Association of Machinists, unaffiliated, is. a labor organization, within the meaning of Section 2 (5) of the Act 2. All the employees of the electrical or unit rebuilding department, spring leaf department, and machine shop of the Respondent's Nashville, Tennessee, plant, including the toolroom boy and parts washers but excluding the carpenter, the warehouse keeper, the head of the electrical or unit rebuilding department, the head of the machine shop, and all other supervisory employees with author- ity to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit ap- propriate for the purpose of collective bargaining, within the meaning of Sec- tion 9 (b) of the Act 3. International Association of Machinists, unaffiliated, was on October 8, 1946, and at all times thereafter has been, the exclusive representative of all the 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees in the aforesaid appropriate unit for the purposes of collective bargain- ing, within the meaning of Section 9 (a) of the Act. 4 By refusing on May 21, 1947, and at all times thereafter, to bargain col- lectively with the International Association of Machinists, as the exclusive repre- sentative of its employees in the appropriate unit, the Respondent has engaged in, and is engaging in, unfair labor practices, within the meaning of Section.8 (a) (5) of the Act. 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 (a) (1). 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. RECOMMENDATIONS On the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, the undersigned recommends that J. B. Cook Auto Machine Company, Inc, Nashville, Tennessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with International Association of Machin- ists, as the exclusive representative of all employees of the electrical or unit rebuilding department, spring leaf department, and machine shop of the Respond- ent's Nashville, Tennessee, plant, including the toolroom boy and parts washers, but excluding the carpenter, the warehouse keeper, the head of the electrical or unit rebuilding department, the head of the machine shop, and all other super- visory employees with authority to hire, promote, discharge, discipline, or other- wise effect changes in the status of employees, or effectively recommend such action ; and (b) Engaging in like or related acts or conduct interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form labor organizations, or to join or assist International Association of Machinists, unaffiliated, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guar- anteed in Section 7 of the Act. 2. Take the following affirmative action, which the undersigned finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with the International Association of Machinists, unaffiliated, as the exclusive representative of its employees in the above-described appropriate unit, and if an agreement is reached, embody such understanding in a signed agreement; (b) Post at its plant in Nashville, Tennessee, copies of the notice attached to this Intermediate Report marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being signed by the Respondent's representative, be posted by the Respondent, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all 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, J. B. COOK AUTO MACHINE COMPANY, INC. 701 (c) Notify the Regional Director for the Tenth Region in writing, within twenty (20) days from the date of the receipt of this Intermediate Report, what steps the Respondent has taken to comply therewith. It is further recommended that unless on or before twenty (20) days from the receipt of this Intermediate Report, the Respondent notifies said Regional Director in writing that it will comply with the 1oiegoing recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Boaid-Series 5, as amended August 18, 1948, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Intermediate Report and Recommended Order or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon , together with the original and six copies of a brief in support thereof; and any party may, within the same period, file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Immedi- ately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. State- ments of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeographed shall be double spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203 85. As further provided in said Section 203 46 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. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations, and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations , be adopted by the Board and become its findings, conclu- sions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 4th day of March 1949. HOWARD M=s, Trial Examiner. 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 : WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist INTERNATIONAL ASSOCIATION OF MACHINISTS, unaffiliated, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. 853396-50-vol 84 48 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become or remain members of this union, or any other labor organization. WE WILL BARGAIN collectively upon request with the above-named union as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay , hours of employment or other conditions of employment , and if an understanding is reached , embody such understanding in a signed agreement The bargaining unit is: All employees of the electrical or unit rebuilding department , spring leaf department , and machine shop of our Nashville , Tennessee , plant, including the toolroom boy and parts washers , but excluding the carpenter , the ware- house keeper, the head of the electrical or unit rebuilding department, the head of the machine shop , and all other supervisory employees with authority to hire, promote , discharge, discipline , or otherwise effect changes in the status of employees , or effectively recommend such action. J. B. COOK AUTO MACHINE COMPANY. INC., Employer. By --------------------------------------------- (Representative ) ( Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.