Dixie Culvert Manufacturing Co.

[n the Matter of DIXIE CULVERT MANUFACTURING COMPANY and IN- TERNATIONAL BROTHERHOOD OF BOILERMAKERS , IRON SHIPBUJLDERS AND HELPERS OF AMERICA , A. F. L. Case No. 32-CA-13.Decided December 1'2, 1919 - DECISION AND ORDER On July 22, 1949, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the In- termediate Report attached hereto. The Trial Examiner also found that the Respondent had not unlawfully laid off and failed to rein- state Max Hendrickson, James B. York, Raymond Lindsey, Roy Stogner, and Leslie Edmonson, as alleged in the complaint, and rec- ommended that the complaint be dismissed as to them. Thereafter, the Respondent filed exceptions to the Intermediate Report, and a supporting brief. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that, with the exception noted below, no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the modifications set forth below.2 1. The Trial Examiner, in his Intermediate Report, recommended that the Respondent be ordered to cease and desist from "Directing and seeking employees' assistance in ascertaining union activities." 1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [ Chairman Herzog and Members Houston and Murdock]. 2 The Intermediate Report states that the issue of union responsibility was resolved by the parties in their negotiations for a contract , whereas it appears that no agreement on this issue was reached . This inadvertence does not affect the Trial Examiner 's ultimate conclusions, or our concurrence therein. 87 NLRB No, 79. 554 DIXIE CULVERT MANUFACTURING COMPANY 555 This was apparently based upon an isolated instance in which Fore- man Hall, according to witnesses Porter and Bone, suggested that they go to a union meeting and report back to him what it was about. The Trial Examiner, at the hearing, refused to permit the Respond- ent to cross-examine as to whether or not this remark was, as Hall claimed, made in jest. We find this ruling of the Trial Examiner in- correct, and therefore overrule his finding of attempted surveillance by the Respondent. 2. In resolving a conflict of testimony as to whether or not certain antiunion remarks and inquiries had been made by Foreman Hall, the Trial Examiner stated that "A consideration of the entire testi- mony makes it, clear that Hall's uncorroborated testimony is inade- quate to overcome the cumulative and preponderant weight of that of the six witnesses for the General Counsel." We agree with the Trial Examiner's resolution of the credibility issue because of the convincing, well-supported, and mutually corroborative nature of the testimony given by the six witnesses, for the General Counsel. 3. The Trial Examiner found that the granting of the unilateral wage increase on July 22, 1948, constituted an independent violation of Section 8 (a) (1) of the Act. We agree with the Trial Examiner, and find, in addition, that this unilateral action also constituted an independent violation of Section 8 (a) (5) of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Dixie Culvert Manufacturing Company, Little Rock, Arkansas, its officers, agents, successors, and assigns, shall: . 1. Cease and desist from : (a) Refusing to bargain collectively with International Brother- hood of Boilermakers, Iron Shipbuilders and Helpers of America, A. F. L., as the exclusive representative of all its production employees, excluding office and clerical employees, night watchmen, and all super- visors, with respect to rates of pay, wages, hours of employment, or other conditions of employment; (b) Interrogating its employees concerning their union member- ship and activities, as to their attendance at union meetings, and as to how they intend to vote in elections conducted by the National Labor Relations Board ; (c) Threatening to padlock its doors if the Union comes into the plant; threatening to cut employees' working hours and to reduce their total take-home pay if the Union comes into the plant; threaten- 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing to lay off or discharge employees who vote for or join the Union, and to deprive union members of overtime work and of other privileges; (d) Promising employees better jobs to induce them to abandon their support of the Union; (e) Sponsoring, encouraging, and/or causing to be circulated on its time and property petitions directed against the Union; (f) Promising, announcing, and/or granting unilaterally, without, first bargaining with the Union, wage increases to its employees in the unit described herein; and (g) In any other 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 International Brotherhood' of Boilermakers, Iron Shipbuilders and Helpers of America, A. F. L., or any other labor organization, to bargain collectively through rep- resentatives of their own choosing, and to engage in concerted activ- ities for the purpose of collective bargaining or other mutual aid or. protection, or to refrain from any and all such activities except to the extent that such right may be affected by an'agreement requiring mem- bership 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 Brother- hood of Boilermakers, Iron Shipbuilders and Helpers of America, A. F. L., as the exclusive bargaining agent of all its employees in the bargaining unit described herein, with respect to rates of pay, wages, hours of employment, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement ; (b) Post at-its Little Rock, Arkansas, plant, copies of the notice attached hereto marked Appendix A.3 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent 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. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material; and 3In-the event this Order is enforced by decree of 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." DIXIE CULVERT MA]iUFACTUR[NG COMPANY 557 (c) Notify the Regional Director for the Fifteenth Region in writing within ten (10) days from the date of this Order what steps the Respondent has taken to comply herewith. IT Is FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that the Respondent engaged in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor ,Relations Act, we hereby notify our employees that : AVE WILL NOT refuse to bargain collectively with INTERNA- TIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS AND HELPERS OF AMERICA, A. F. L., as the exclusive representative of all employees in the appropriate unit described below. WE WILL NOT interrogate our employees concerning their union membership and activities, as to their attendance at union meet- ings, and as to how they intend to vote in elections conducted by the National Labor Relations Board. WE WILL NOT threaten to padlock our doors if the Union comes into the plant; threaten to out employees' working hours and to reduce their total take-home pay if the Union comes into the plant; threaten to lay off or discharge employees who vote for or join the Union, and to deprive union members of overtime work or of other privileges. WE WILL NOT promise employees better jobs to induce them to abandon their support of the Union. WE WILL NOT sponsor, encourage, and/or cause to be circu- lated on our time and property petitions directed against the Union. WE WILL NOT promise, announce, and/or grant unilaterally, without first bargaining with the Union, wage increases to our employees in the unit described herein. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self -organi- zation, to form labor organizations, to join or assist.INTERNA- TIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS AND HELPERS Of AMERICA, A. F. L., or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purpose of col- 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lective bargaining or other mutual aid or protection, to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8 (a) (3) of the Act. WE WILL BARGAIN collectively, upon request, with INTERNA- TIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS AND HELPERS OF AMERICA, A. F. L., as the exclusive representative of all employees in the bargaining unit described herein With respect to rates of pay, wages, hours of employment, and other condi- tions of employment, and if an understanding is reached,, embody such understanding in a signed agreement. The bargaining unit is: All the production employees at our plant in Little Rock, Arkansas, excluding office and clerical employees, night watchmen, and all supervisors. All our employees are free to become or remain members of said Union or any other labor organization. Dixie CULVERT MANUFACTURING COMPANY, 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. INTERMEDIATE REPORT AND RECOMMENDED ORDER Messrs. Charles A. Kyle and Mr.. Victor H. Hess, for the General Counsel. Mr. W. H. Holmes (House, Moses. and Holmes), of Little Rock, Ark., for the Respondent. Mr. J. H. Winger, of Kansas City; Mo., and Mr. Thomas Conway, of St. Louis, Mo., for the Union. STATEMENT OF THE CASE Upon an amended charge filed March 12, 1948, by International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers, of America,, A. F. L.,, herein called the Union, the General Counsel for the National Labor Relations Board,' by the Regional Director for the Fifteenth Region (New Orleans, Louisiana), issued a complaint dated March 31, 1949, against Dixie Culvert Manufacturing Company of Little Rock, Arkansas,. herein called the Respondent, alleging that. Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning, of Section. 8 (a) (1), (3), and (5) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. Copies of the i The General. Counsel and his representatives are herein referred to as the General Counsel and the National Labor Relations Board as the Board. DIXIE CULVERT MANUFACTURING COMPANY 559 complaint, the charge, and the notice of bearing-were duly served on the Respond- ent and the Union. With respect to the unfair labor practices the complaint alleged in substance that the Respondent: (1) On or about,January 27, 1948, discharged Max Hen- drickson, James B. York, Raymond Lindsey, Roy Stogner, and Leslie Edmonson, and thereafter failed to reinstate tl:ein (except,Stogner) because they engaged in certain union or other concerted activities; (2) from about January 27, 1948, and since, refused to bargain collectively with the Union; and (3) by the above and certain other stated acts interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in the Act. By its answer filed April 12, 1949, Respondent admitted certain allegations of the complaint as to the nature of its business, as to the appropriateness of the alleged unit, and as to the Union's designation as the exclusive representative of its employees for the purposes of collective bargaining,2 but it denied the com- mission of any unfair labor practices. In denying the alleged discriminatory discharge of the five employees named in the complaint, Respondent averred affirmatively that the employees were laid off because of a shortage of work and materials, that such lay-offs were cleared in advance with representatives of the Union, that reemployment was later offered them, but that only Stegner accepted. In denying a refusal to bargain, Respondent averred that the Union broke off the negotiations and for 12 months had made no effort to bargain; that the Union had failed to bargain in good faith and had thereby itself committed unfair labor practices. Pursuant to notice a hearing was held on April 19, 20, and 21, 1949, in Little Rock, Arkansas, before the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The General Counsel and the Respondent were repre- sented by counsel and the Union by representatives. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence pertaining to the issues, was afforded all parties. At the conclusion of the General Counsel's case-in-chief, Respondent moved to strike various portions of the testimony of witnesses relating to certain anti- union petitions and to conversations with Dick Hall. Said motions were denied. Respondent's motion to strike all the testimony was similarly denied. Ruling was reserved on Respondent's motion to dismiss the allegations charging violations of Section 8 (a) (3) ; that motion is disposed of in the body of this report. At the conclusion of the hearing the General Counsel's motion to conform the pleadings to the proof in matters such as names, dates, etc., was granted without objection. The parties were afforded an opportunity to make oral argument and to file briefs, proposed findings of fact, and conclusions of law. Oral argument was waived. Briefs have been received from the General Counsel and the Respondent. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is an Arkansas corporation with its principal office and place of business at Little Rock, where it was engaged during the period covered by the 2 Respondent also stipulated at the hearing that the Union was a labor organization within the meaning of Section 2 (5) of the Act. 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaint in the business of fabricating steel tanks and culverts. During the year preceding the filing of the complaint; Respondent purchased and had delivered to its Little Rock plant, steel and other raw materials valued in excess of $200,000, of which approximately 95 percent was purchased outside the State of Arkansas. During the calendar year 1948, Respondent' s gross sales were $446,185.76, of which approximately half were to out-of-State points : Respondent does not dispute that it is engaged in interstate commerce within the meaning of the Act, and the undersigned finds that it is so engaged. 1I. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of America, A. F. L., is a labor organization admitting to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. Background; summary of main, events and issues Respondent's plant was a small one, employing between 18 and 33 employees during the period covered by the complaint. It was managed by John M. Davis, Jr., Respondent's president, by John A. Hall, superintendent, and by Richard A. (Dick) Hall as foreman.' Concerted activities arose among the employees in October 1947, as a result of contracts by Thomas M. Conway, then district representative of the Union, who on November .1, wrote Respondent informing it that the Union represented a majority of the employees and requesting recognition. Recognition was not accorded, and a representation petition was filed on November 19. In December, Respondent consented to an election and arrangements were made for the holding of the election on January 8, 1948. The General Counsel introduced evidence to the effect that on Christmas Eve, Davis made certain statements of a coercive nature and also announced a bonus and a pay increase allegedly as an inducement to forsaking union activity, and that on various occasions between November 1 and January 31, Dick Hall made to a number of employees a variety of coercive statements and that he also caused or encouraged the circulation of two antiunion petitions. The Union won the election on January 8, by 14 votes to 13. Respondent's objections to the conduct of the election were overruled by the Regional Director, whose action was sustained by the Board on Respondent's appeal. Thereafter on January 27, the Union, through Conway, began negotiations with Respondent for a contract. On the same day Respondent laid off five employees (who the complaint alleges were discriminatorily discharged) for the asserted reason of shortage of steel and lack of orders' Negotiations were continued on various dates through March 9. Each party blames the other for the breaking off of the negotiations, and neither has made any attempt to resume negotiations. On February 9, the Union had filed a charge asserting Respondent had dis- criminatorily discharged the five employees. On March 12, it filed an amended charge to which was added a charge of refusal to bargain. The amended charge was served on Respondent on May 6, 1948. On July 22, 1948, Respondent an- nounced and inaugurated unilaterally a 10-percent wage increase. s Respondent stipulated that both Halls were supervisors within the meaning of the Act. In March, letters were written offering reinstatement "temporarily." DIXIE CULVERT MANUFACTURING COMPANY 561 The main issues raised by the pleadings, litigated at the hearing, and argued in the briefs are (1) whether Davis and Dick Hall made the various statements of a coercive nature attributed to them and whether said statements and Davis' announcement of the Christmas bonus and wage increase constituted interfer- ence, restraint, or coercion; (2) whether the alleged discharges or lay-offs on January 1927, were discriminatory ; (3) whether the Respondent refused to bargain on and after January 27; and (4) whether the granting of the July wage increase constituted interference. The evidence surrounding the alleged coercive statements will be summarized together. The July wage increase will be discussed in connection with the refusal-to-bargain questions to which it relates. B. Interference, restraint, and coercion A number of witnesses for the General Counsel' testified to a variety of state- ments and inquiries by Dick Hall on frequent occasions between November 1 and January 31, 1948. Many of such statements were of similar character and content, and in frequent instances they were made in the presence of a group of employees. It is therefore considered unnecessary to summarize in detail the testimony of the individual witnesses. Suffice it to say that the composite of such testimony is that on frequent occasions Hall interrogated employees con- cerning their union membership and activities, as to their attendance at union meetings, and as to how they intended to vote in the impending election, and that Hall stated that if the Union came in the weekly working hours would be cut to 40,° thereby resulting in a reduction in total pay. Less frequently testified to were statements that employees who joined the Union or voted for the Union would be laid off or discharged ; that employees who signed up with the Union would not get any more overtime work ; that if the Union won the election the management would gradually get rid of the union men, or would shut the plant down and later hire new men in place of union men ; that because certain employees had voted for the Union, Hall wanted more work and less talk ; that Hall promised an employee a better job to vote against the Union, and that he requested a group of employees to attend a union meeting and report back to him what they had learned. A number of witnesses also testified to Hall's sponsorship of two antiunion petitions early' in November, and to his direct and indirect attempts to procure the signatures of employees thereon.' In rebuttal of this evidence, much of which was of a cumulative nature, Re- spondent offered the testimony of Dick Hall who admitted most of the incidents testified to by the General Counsel's witnesses. In some instances Hall denied the specific statements attributed to him but in most instances he admitted having 5 Roy E. Stogner, Bennie F. Holley, James R. Bone, Jodie Lee Porter, James B. York, and Raymond C. Lindsey. 6 Respondent's working schedule for a number of years and throughout the period cov- ered by the complaint was 52 hours. 7 Respondent disclaimed knowledge of the first petition but admitted possession of and produced the second, which was offered in evidence by the General Counsel. It was dated November 12, 1.947, and bore 21 signatures under the following heading: To whom it may concern, The undersigned hereby requests that you do not sign a contract with the International Brotherhood of Boilermakers, Iron Ship Builders and Helpers of America, A. F. of L. as we do not as employees, desire to work under a contract with the Union. 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the conversation, but under his version he said little or nothing which was of a coercive or intimidatory nature. Illustrative of his explanation was that made of his alleged statement that if the Union came in the working hours would be cut back to 40, resulting in a reduction of weekly pay. He testified that he simply explained to the men that unions generally favored a 40-hour week and that what the result would be if the Union were voted into the plant would depend upon negotiations between the company and the Union. Hall admitted enraging in frequent conversations with groups of employees during which the subject of the Union was discussed "openly and freely," but he explained that the men always felt free to do what they wished about the Union, and that "they felt free to discuss it, talk about it, and just have a friendly conversation between themselves and between some of them and myself." Hall further testified that sometimes he would enter the conversation through direct questions and that his motive in joining the groups and participating in the discussions was to break up the conversations (which had become more fre- quent after the inception of union activities) as quickly as possible and get the men back to work. A consideration of the entire testimony makes it clear that Hall's uncorrobo- rated testimony is inadequate to overcome the cumulative and preponderant weight of that of the six witnesses for the General Counsel. It is therefore concluded and found that Hall in fact made the statements and inquiries sub- stantially as testified to by the witnesses for the General Counsel as summarized above, and that by said acts and statements Respondent engaged in interference, restraint, and coercion in violation of Section S (a) (1) of the Act. There is no substantial dispute as to-the content of the statements made by Davis during his speech on Christmas Eve.' Davis began by referring to the fact that the company had had a fairly successful year and that it would pay a. Christmas bonus of $50 to employees with 6 months' tenure and $25 to those with less than 6 months, and that it was also granting a 5-cent an hour wage increase. Davis also referred to the impending election on January 8, stated that it seemed that some of the employees were not satisfied with the way the plant was being run and wanted to bring in outside assistance to help run it; that before he would permit an outsider to come in and tell him how to run his bus- iness, he would padlock the doors ; and that the employees should "think it over" before they voted. 't'hese findings represent a composite of the testimony of Stogner, Holley, Bone, Porter, and Lindsey. Davis' testimony is not In substantial conflict. Though he denied making any specific reference to the Union, he admitted the reference to outside "assistance" or "interference," admitted reference to pad- locking the doors, and admitted that aside from the Union he "knew of no other outside assistance that was coming in at that time." It is concluded and found that Davis' statements were substantially as tes- tified to by the General Counsel's witnesses ; that said statements contained a clearly implied threat to close the plant if the Union came in; and that Respond- 81he only other statements attributed to Davis are that he told one or more employees prior to the election that lie would appreciate them voting for the company. Davis denied making any such statements. It is considered unnecessary to resolve that conflict, since it is found that the statements, even if made, contained no promise of benefit and were privileged as free speech. Tennessee Coach Company, 84 NLRB 703. -DIXIE CULVERT MANUFACTURING COMPANY 563 ent thereby engaged in interference, restraint, and coercion in violation of Sec- tion 8 (a) (1) of the Act.' Davis also testified that in announcing the bonus and the wage increase he had stated, pursuant to an understanding with Conway, that he had discussed the bonus and the wage increase with Conway and that they met with his approval. Though none of the General Counsel's witnesses testified that Davis referred to having obtained Conway's approval, none was questioned specifically about such a statement, their testimony contained no denial of Davis' testimony on the point, and the General Counsel did not recall any of the witnesses to procure rebuttal of Davis' testimony. It is therefore found that Davis did announce that he had cleared such matters with Conway. An issue also arose whether Davis had in fact obtained Conway's approval. Davis testified that in an earlier conference with Conway and Mr. Sabella, Field Examiner of the Board, in which the consent election had been agreed to, he had broached to Conway Respondent's desire to pay a Christmas bonus and .to grant a 5-cent an hour increase, and he inquired whether Conway would object. Conway admitted the subject was mentioned but disagreed as to what he said in response. According to Davis, Conway agreed to the proposal on condition that Davis, in announcing it to the men, would state that the matter had been cleared with Conway. Conway denied, however, that he expressly approved the proposal, testifying that he said only that "That comes under the heading of your business or something to that effect." Conway also quoted Sabella as saying something to the effect that "It might not be a good policy for the company to give any wage increase or bonus at a time the case was before the Labor Board." Conway admitted, however, that he did mention to some of the employees that Davis had stated that he was going to give a Christmas bonus and a wage increase, but Conway could not recall whether he (Conway) told any of them that he had helped them get it. Sabella was not called as a witness. It will be seen that Conway admitted that Davis did'mention the subject to him and admitted that he in turn mentioned it to some of the employees. It has also been found that Davis in fact informed the employees when making the announcement that the proposals had been cleared with Conway and had re- ceived his approval. It seems highly probable, in view of the impending election and the obvious effect that such economic benefits might have in causing a de- fection of union support, that Conway would either have objected strenuously or would have imposed the condition testified to by Davis, i. e., that Davis announce to the men that the matter had been cleared with Conway. Indeed, by imposing such a condition Conway could well claim for the Union a major share of the credit for the payment of the increase, if not, indeed, for the Christmas bonus. It is therefore concluded and found that Conway did in fact expressly or tacitly approve Davis' proposal. It is therefore found, under these circumstances, that neither the payment of the bonus nor the granting of the 5-cent an hour increase constituted inter- ference, restraint, or coercion. Cf. Mallinckrodt Chemical Works, 79 NLRB 1399. ° Respondent argues that since the Union won the election , all its earlier acts and state- ments were demonstrably without coercive effect, that such conduct ceased more than a year ago, that there remains nothing to prevent, correct, or remove, and that therefore the issuance of a corrective order would be both unnecessary and futile. The Board has repeatedly rejected such contentions. 877359-50-vol. 87-37 { 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The lay-off on January 27, 1948 On January 27, 1948, Respondent laid off Hendrickson, York, Lindsey, Stegner, and Edmonson for the asserted reasons of shortage of steel and lack of orders. The men were informed that when the work picked up they would be notified by registered letter and that they should report within 3 days. For evidence to .support the claimed discriminatory motive, the General Counsel points to that summarized under Section B, supra, particularly to certain statements made by Dick Hall. Those statements will now be more fully adverted to. Bone testified that in a conversation. in November, Hall stated to him that he could close down the shop and lay off those who were for the Union and after 5 days he could hire new employees in their places and that he could use as the reason the lack of steel. Bone also testified that about 2 weeks after the election Hall had a conversation with him in which Hall referred to the fact that two employees had recently quit and added, "It seems to me like all you union boys are quitting," and added that he "would be glad when all of them quit and see them gone from there." Porter testified that sometime during the month of November 1947, he over- heard a conversation between Hall and Bone in which Hall said that if the Union won the election they would gradually get rid of the union men, and furthermore, if they had to in order to beat the Union, they would shut the plant down, lay off everyone, and rehire new men in place of .union men. Porter also testified that 2 or 3 days after the lay-off Hall told him that "We don't intend to put any of them back that we laid off." York testified that Hall said to him on an occasion in November, "Well, York, you know all these boys that goes union will lose their jobs." Lindsey testified that the day before the election Hall told him, among other things, that employees who voted for the Union would not be there very long. The testimony of these witnesses has been credited, and it is found that Hall in fact made the statements attributed to him. Were there no more in the record, these statements would well support an inference that the lay-off was discriminatory (there being evidence that the five employees were all union members and that Respondent, through Hall's inquiries and discussions, was aware of the fact). However, the Respondent offered affirmative evidence that the lay-off was forced by economic conditions„ that the impending lay-off was discussed with Conway on January 27, at the inception of the bargaining negotiations, and that Conway approved the basis on which the selection for the lay-off was made. Respondent's evidence establishes beyond question that economic conditions justified a lay-off or a shut-down. The major portion of its business had formerly been with the larger oil companies. Most of this was being lost in the late fall of 1947, as the result of a change in the policy of such oil companies, the first effect of which was reflected in the cancelation of a large order by the Texas Company on November 17. Though Respondent immediately set about developing new business from the independent oil companies and from other sources, there was no indication for some months to what extent it would be successful in obtaining new customers. The question of the probable necessity for a lay-off had been discussed between Davis and John Hall as early as November and December, and had been men- DIXIE CUL17ER'T MANUFACTURING COMPANY 565 tioned to Conway in an early conference," and in December Davis had sought the advice of Respondent's counsel, W. H. Holmes. Holmes advised Davis that because of the pendency of the representation proceeding and the impending elec- tion, he should under no circumstances consider reducing the pay rolls prior to the election ; that after the election, if the Union was selected as bargaining agent, there would be "plenty of time to talk about laying men off." In the meantime Respondent continued to operate its normal weekly schedule of 52 hours and began stacking up on its yard tanks which had been produced without immediate prospects of sale. The Union having won the election and bargaining negotiations having opened, Respondent on January 27 informed Conway and Worthsmith (secretary of the local Union) of the immediate necessity for a lay-off. In addition to the lack of orders there had also occurred a drastic shortage of steel which left Respondent with enough raw materials to run the plant for only about 4 days. These facts; were made known to Conway and his suggestions were solicited as to a proper' basis for effecting the lay-off. Conway's first reaction was to question the neces- sity for any lay-off, arguing that it would be preferable for Respondent to cut its workweek from 52 hours to 40 and retain all the men 11 Davis and Holmes explained that the 52-hour workweek had been in effect for a number of years, that the employees were accustomed to total pay based on their earnings for the longer workweek, and that Conway's suggestion if adopted would result in penalizing the older employees. They continued to urge the necessity for a lay-off and inquired whether Conway would approve if the selection were made on the basis of the seniority provision in its proposed contract." The evidence is in conflict as to Conway's response. Conway testified that he stated that he did not know the seniority of any of the employees, and inasmuch as Respondent had not agreed to a seniority clause, he could not tell them which employees to lay off, and that "that would come under the heading of their business." Davis and Holmes testified that Conway agreed to the lay-off on the basis of seniority, though at that time no seniority list had been prepared and it was not known who would be selected. Worthsmith, called by the General Counsel in rebuttal, testified at first that although Conway was informed that because of a "shortage of steel and nm orders," Respondent would have to lay off five men, no reference was made to the basis of their selection. On cross-examination he admitted, however, that the subject was mentioned and that he himself commented, "That is just seniority." It is concluded and found from the testimony as a whole that Respondent in- formed Conway and Worthsmith of the basis on which it proposed to select the men for lay-off and that Conway tacitly, if not expressly, approved. Actually, whether or not he approved, it appears that the basing of the lay-off on the seniority clause of the Union's proposed contract was proper and left the Union. 10 Conway admitted that in a meeting on November 12, Holmes told him, among other things, "conditions are poor clown at our plant. We are not able to get orders, new orders . . . we are having difficulty getting steel and we may even have to lay off some of the men." [Emphasis supplied.] "This suggestion if it had been adopted would, in the light of the then known condif- tions, have accelerated the exhaustion of the scant steel supply and would have resulted. in a complete shut-down shortly. 12 Respondent informed Conway, however, that it was otherwise reserving its objectibnss to the seniority clause as drawn. 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD without ground for objection (assuming the lay-off could not otherwise be shown to be grounded in discriminatory motivation). Conway's only suggestion was that a lay-off might be avoided by a reduction in the workweek. Respondent's objection to this was reasonable, and its decision to effect the lay-off instead obviously came, as Conway expressed it, "under the heading of their business." Without arguing this point, however, the General Counsel insists that Re- spondent's excuses of shortage of steel and lack of business are irreconcilable; that there was in fact no need for a lay-off on January 27, or at least, that the need was no greater then than it had been earlier ; that Respondent's shortage of steel was a chronic one to which it had adjusted its operations, and that the shortage had been at earlier times approximately as acute as on January 27; that by that date Respondent had also been largely successful in obtaining from the independent oil companies business to replace that of the majors." These arguments are based entirely on inferences and conclusions drawn from Re- 'spondent's evidence, none being offered in rebuttal. It is first found that there is no inconsistency in the two defenses, shortage of steel and lack of orders. To the contrary they were to an extent supple- mentary of each other, and it was their cumulative force that culminated in Respondent's decision to effect a lay-off. True, Respondent had survived earlier emergencies in steel shortages, though none was as acute as that which existed on January 27; but on that date it had not been successful in obtaining new business, and the evidence is undisputed that its yard was stacked with tanks for which no immediate sale was in prospect. Under these circumstances the decision to effect a lay-off was clearly within the realm of management preroga- tives. The chief defect in the arguments of the General Counsel is the failure to consider the fact that a lay-off had been under consideration certainly as early as December but was suspended on advice of counsel pending the holding of the election in order to avoid the possible filing of unfair labor practice charges. It seems clear that a lay-off or a shut-down any time after the in- ception of union activities would have rendered Respondent suspect of at- tempted interference with its employees' rights to organize. Under these cir- cumstances, Respondent's action in continuing operations as usual until after the election and after the inception of bargaining negotiations, pursuant to Holmes' advice, appeared both proper and wise. Nor does the General Counsel attempt. to suggest that Respondent should have made the selection on some different basis. Indeed, it is difficult to see how he could do so, since Respondent followed to the letter the seniority clause in the Union's proposed contract." Evidence of events subsequent to the lay-off supports the view that the lay-off was nondiscriminatory. Around February 18, Respondent received a large con- tract from Sears Roebuck Co. for septic tanks (a relatively new line with Re- spondent). Steel receipts in February and March also began to approach normal 13 The General Counsel here points to the fact that in the first 4 months of 1947, only 42 percent of sales was to the independents, whereas in 1948 this had increased to 85 per- cent. This comparison obviously involves a fallacy, since the decrease in total sales, which was attributable entirely to the loss of business with the majors, would automatically have swelled the percentage or proportion which sales to independents bore to the total. ''That an employer followed a seniority system or practice in effecting discharges or lay-offs has many times been considered by the Board as a persuasive circumstance indi- cating a nondiscriminatory motive. Nor does the fact that an employer had not previously followed a seniority rule necessarily affect the result. Victor Manufacturing and Gasket Company, 79 NLRB 234. DIXIE CULVERT MANUFACTURING COMPANY 567 requirements. On March 16, Respondent, pursuant to the understanding at the time of the lay-off, dispatched registered letters to Hendrickson, Stogner, and Edmonson, informing them.that "work is now available for you,"" and that unless they reported within 3 days, Respondent would presume they wished "to permanently terminate your connection. . . On March 25, similar letters were sent to Lindsey and York. The offers of reinstatement were in the order of seniority. No other employees had been hired in the meantime. Only Stogner reported, and he was reinstated. In the light of all the evidence it is concluded and found that the condition of Respondent's business did not warrant the retention of all of its employees on January 27, and that the lay-off was justifiable. It is also found that the Union, through Conway, approved the basis on which the lay-off was made, but that regardless of such approval, the selection on the basis of seniority was proper. It is further concluded and. found that the evidence offered by the General Counsel does not sustain his contention that the lay-off and the refusal to re- instate was discriminatory, and it will therefore be recommended that the com- plaint be dismissed insofar as it charges a violation of Section 8 (a) (3). D. The refusal to !bargain 1. The appropriate unit; the Union's representation of a majority therein All production employees of Respondent, exclusive of office and clerical em- ployees, foremen, night watchmen, and supervisory employees with authority to hire and fire or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. On or about January 8, 1948, a majority of Respondent's employees in said unit designated and selected the Union as their representative for the purposes of collective bargaining with the Respondent, and said majority representation has continued since that date.'1 It is further found that on January 8, 1948, and at all times thereafter the Union was and now is the exclusive representative of all employees in the aforesaid unit for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 2.. The refusal to bargain A series of bargaining conferences were held beginning January 2717 and ending March 9 (on January 27; February 2, 3, 14, 17; March S and 9). All meetings were held iiiHolmes' law of&ce, the Respondent being represented by is The letters also stated that Respondent found "that temporarily we have need again of your services." Davis' testimony was that at that time business prospects and the steel situation had not improved to the point that Respondent could safely offer more than tem- porary reemployment. His testimony is unrebutted and is credited. Furthermore the pay-roll records show that though only one of the five employees reported, Respondent did not increase its force for more than 2 months. It is therefore found that Respondent was justified in offering only temporary reemployment at the time since that was all that was available. 19 Respondent introduced no evidence that the Union's majority representation had been lost, but contended that the Union had abandoned the negotiations on March 9 , 1948, and thereafter no longer attempted to serve as the bargaining representative. 17 Although. Davis and Holmes were under the impression that conferences were held earlier, possibly on January 16 and 20, they testified to no occurrences at such alleged meetings. Conway's testimony that the first meeting was on January 2.7 was based on notes and memoranda and is accepted. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dayis and Holmes. Conway represented the Union throughout, and in the first conference he was accompanied by Worthsmith. After the meeting on February 3, feeling that no progress was being made, Conway. called on the services of the Federal Mediation and Conciliation Service ; and thereafter, beginning with the conference of February 14, its Commissioner Wheeler participated in the conferences. Negotiations terminated at the conference on March 9, when the Union with- drew, contending that Respondent's position was such that it was futile to engage in further negotiations. Respondent contends to the contrary that it had bar- gained in good faith, that substantial progress had been made and 'was being made, and that at the time of the Union's withdrawal from the negotiations, it stood ready to continue bargaining. It is clear from all the testimony that the parties negotiated extensively during their several conferences, though as will be subsequently pointed out, little was accomplished on the important issues that constitute the core of the usual col- lective bargaining contract. Whether Respondent refused to bargain as charged turns, therefore, on whether Respondent's participation in the bargaining nego- tiations was with a good faith intent to reach an agreement. It will be nec- essary to analyze the evidence somewhat in detail in resolving that question. Conway, Davis, and Holmes testified to the bargaining negotiations," Con- way's testimony being in considerably more detail than Davis' or Holmes"° By and large there were no substantial conflicts in their over-all accounts, although there were variances on some details, the more significant of which will be pointed out. At the first conference on January 27,' Conway presented for consideration the Union's draft of a proposed contract, and discussions proceeded on the basis of its provisions until the conference of March 8. On that date, Respondent pre- sented its draft of a counterproposal, and discussions on March 8 and 9 were based on it. 2° It is considered unnecessary to summarize in detail the negotia- tions at the several conferences, except for the last one on March 9. It is clear from the testimony as a whole that at the conferences from January 27 through February 17, inclusive , there was general discussion and negotiation of the various clauses of the Union's proposed contract, though not all of the clauses were discussed at each conference. As was to be expected, discussion centered around the more important provisions of the contract, i. e., wage rates, hours, overtime, grievances, and seniority. Before summarizing the evidence on those issues and the progress (or lack of progress) on each, brief reference will be made to the minor issues. 1. Term The Union was seeking a contract for 1 year to date from the signing of the agreement and to be renewable from year to year unless terminated by notice 60 days prior to any annual expiration date. Respondent contended that the 18 Worthsmith 's brief testimony in rebuttal bore on the question of the lay-off. 10 In relating the details of the negotiations it has, therefore , been necessary to rely largely on Conway's testimony. Holmes' testimony was in fact quite general ; he professed no ability to recall details , admitting frankly, "I couldn 't repeat in the morning a word we say here tonight." 20 Since reference to and comparison of the various clauses in the respective contracts will facilitate an understanding of the evidence and the issues between the parties, both drafts are attached hereto as appendices ( Union's, Appendix B ; Respondent's, Appendix C). DIXIE CULVERT MANUFACTURING COMPANY 569 yearly term should run from the election (January 8) 921 and it refused to consider contracting for a full annual term from the date of signing. That position was maintained throughout the negotiations and was carried over into its counter- proposal. Moreover, its draft contained no provision for renewal. This issue was not resolved. 2. Vacations The Union's proposal for vacations was bottomed on the employee's entire length of service. Respondent maintained, however, that the length of service which should control the length of the vacation should date from the election or from January 1, 1948. The Union's proposal also was that 1,040 hours' work in any one year should qualify an employee for a vacation, whereas, Respondent's proposal in this regard required the performance of 40 hours work in any 50 weeks. This issue was not resolved. 3. Holidays The Union's proposal.was for six holidays with pay when they occurred during the regular workweek and for double pay for holiday work plus regular holiday pay. When this clause was under consideration at the February 2 meeting, Holmes stated that Respondent was paying for five holidays and he thought that was enough. He also objected to the provision for regular holiday pay in addition to double pay for holiday work. At the next meeting Conway agreed to delete the provision for such additional holiday pay. Respondent's counterproposal, submitted on March 8, provided for six holidays but provided for holiday pay only when the holidays fell on the first 5 days in the workweek (i. e., Monday through Friday). It also provided that "Holiday pay hours are to be excluded from the workweek." This issue was not resolved. 4. Union agent and responsibility The Union's proposal was that the International Union should be liable for the acts of the local representative designated by the Union only when such acts had first been approved in writing by the International president's office. Respondent contended that the International Union should be liable for the acts of both the local representative and the International representative and that it should not be obligated to determine whether either or both acted within the scope of their authority. This issue was resolved. 5. Shop steward Respondent flatly refused to agree to the provision for a shop steward either in connection with the proposed grievance procedure or otherwise, Davis stating that he would not have a steward in his shop telling him how to run his business. The Union finally agreed to abandon the provision for a shop steward on condi- tion that some acceptable arbitration procedure be agreed upon. Though Re- spondent indicated a willingness prior to the last conference to consider that proposal, Respondent's counterproposal contained no arbitration clause, and the issue was not resolved. n Conway testified that Holmes contended that the election had not been fairly conducted (though Respondent's objections had been overruled by the Regional Director and by the Board) and that lie intended to file for a new election in 1 year from January S. Neither Holmes nor Davis denied Conway's said testimony. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. Job classifications . The Union proposed a definite scale of wage rates for specific job classifications. Respondent objected to any job classifications; contending that in its small plant, such a provision was not feasible and that it wished to move'its men around the plant wherever and whenever it-desired. In one of the later conferences (March 8), Conway agreed to abandon the provision for job classifications in return for a flat wage increase of 10 cents an hour across the board, and in the final conference he agreed -to drop job classifications in return for an increase of 5 cents an hour. The issue was hot resolved. There were no substantial issues betWeeh the parties in the phrasing of the statement of such general principles as "Intent" and "Recognition," nor on such•mihor protisions' as those for a bulletin'board and for show-up time. The negotiations on the major issues will.be'treated in more detail. 1. Wage rates Bargaining over this issue' was continuous throughout the conferences. The Union proposed a fixed wage scale for various job classifications which involved increases of from 25 cents to. 45 cents.an hour over Respondent's existing rate's` Respondent objected to any job classifications on the grounds which have already been stated. It also contended that business conditions rendered-an increase out of the question and stated it would not even guarantee to maintain existing rates for the.term of the. contract. Conway testified, however, that in one of the latter conferences, Holmes suggested Respondent's willingness to guarantee the existing, rates, but Holmes testified that he suggested leaving, the wage scale open for negotiations during the term of the contract. Davis' testimony corro- borates Holmes'. Their version is credited. In any event, on March 8, Respondent presented its draft of a counterproposal. Its provisions for wage rates included union recognition that unfavorable busi- ness prospects rendered it "most impracticable for employer at this time to grant additional increases in the hourly wage rates," and it concluded with the following clause : Employer agrees that it will undertake , but without positive commitment, to maintain employment in its plant at the present level, and unless restricted by scarcity of materials and slackening of demand for its manu- factured articles , it will not cause any additional layoffs of employees or reduction in the base hourly wage scales now prevailing in its plant. As is seen, Respondent 's proposal fixed no wage rates whatever , nor did it contain any guarantee to maintain existing rates, nor did it provide that wage rates during the contract term might be the subject of further negotiation as business conditions might change . It effectually reserved to Respondent full unilateral control over wage rates , which, as the clause was drawn, it could with full freedom raise or lower as it saw fit. Conway testified that after seeing Respondent's draft at the conference on March 8, he agreed to abandon the Union 's demand for job classifications and to accept a straight 10 cents an hour increase across the board, . and that at the ^ According to Davis, the increases would have ranged from 50 percent to 90 percent over existing rates. DIXIE CULVERT MANUFACTURING COMPANY 571 final conference on March 9, he dropped to a 5 cents an hour increase." The happenings at that conference will be summarized separately. 2. Hours and overtime Respondent had previously operated under a weekly schedule of 52 hours, consisting of five 91/2 hour days, plus 41/2 hours on Saturday. It had paid for overtime beyond 40 hours in a week at time and a half , obviously pursuant to the requirements of Section 7 of the Fair Labor Standards Act (29 U. S. C. Sec. 201, et seq.) since its employees , being engaged in the production of goods which were being shipped in interstate commerce (see Division I, supra ) were within the coverage of that Act. The Union 's proposal was for a 40-hour week , Monday through Friday, and for a daily schedule of 8 hours . Time and a half was provided for hours beyond 8 in a day and for Saturday work, and double time was provided for Sunday. Section IV of the hours and overtime clause (Article III) also provided that "All overtime work shall be equally divided among the employees."- Respondent objected to the daily schedule, contending that it should be per- mitted to retain the existing schedule of 91/2 hours. It also objected to double time on Sunday, contending for time and a half in accordance with its existing practice. Respondent also objected to the provision that overtime should be divided among the employees, contending that it "should be the judge of the em- ployees that will get to do the overtime work." 28 No progress has been made on these questions up to the time of the submission of Respondent's counterproposal . Its draft when submitted, through giving lip service to the 40-hour week, was so drawn as to enable Respondent to maintain its existing schedule of 52 hours without change and without added expense 26 and to fix unilaterally the daily hours of work . Its draft contained no pro- vision for daily overtime and nothing on the subject of the division of overtime work. In other words, Respondent's draft enabled it to retain full control over the daily and weekly schedule of hours worked in accordance with its previous prac- tices, as well as full control over the distribution of overtime work The appar- ent recognition of the 40-hour week was hollow and meaningless since Respondent still proposed to continue its existing schedule of 52 hours without added expense. 3. Seniority The seniority clause in the Union 's proposed contract was first discussed in detail at the second conference on February 2. Section I of the Union's seniority clause (Article IX) contained the statement of the principle that : 23 Davis testified that either at the second or third meeting ( February 2 or 3) Conway had agreed that job classifications were not workable in Respondent's plant and stated that the men had agreed to accept a straight 30 cents an hour increase. Davis also testified that Conway did riot recede from his demand for the 30 cents an hour increase until after final negotiations had broken off on march 9, when Conway returned to the room and sug- gested "Come on, give me-be a good sport and give me a 5¢ an hour increase." Holmes' testimony contained no support for Davis' claim that Conway once sought a 30 cents an hour increase . Conway' s testimony is credited in view of his better recollection of details as established throughout the testimony of the three witnesses. u Based on Conway 's testimony , which is accepted . It is corroborated by Respondent's counterproposal , which by omitting Section IV of the Union ' s clause , supra, would have enabled Respondent to retain full unilateral control over overtime work. zs As shown above, Respondent had previously paid time and a half for overtime beyond 40 hours in a week , pursuant to the requirements of the Fair Labor Standards Act. 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD if, due to lack of work, the employer deems it advisable to reduce forces, the last' man hired, shall be the first man laid off, and, in rehiring the last man laid off shall be the first man rehired. . . . Section II provided : Seniority shall be the determining factor regarding layoff and re-employ- ment, transfers, demotions, promotions, or other job changes where the necessary skill and ability are present to perform the work required. Respondent 's position as expressed by Davis and Holmes (as testified to by Conway)" was that "they felt that they should be the sole judge of a man's seniority and whether the man with the longer seniority should be laid off or the man with the shorter seniority," and "they wanted to be the sole judge of who should be laid off and so forth. That was strictly their part of the business." [Emphasis supplied.] Respondent did not depart from its position that it should retain and exercise full unilateral control over seniority. To the contrary, its draft contained pro- visions which would enable Respondent to do just that. Thus, as against Sec- tion II of the Union's seniority clause above quoted Respondent's draft provided: Seniority shall be the determining factor regarding lay off and re-employ= went, transfers, demotions, promotions, or other job changes where Employer finds that employees with higher seniority have equal or greater individual qualifications to perform the work required . [Emphasis supplied.] An additional clause was inserted which cemented Respondent's unilateral control. Individual qualifications of employees shall include skill, ability, aptitude, efficiency, health and energy to do a good day's work. Employer shall be the sole judge of the foregoing individual qualifications of its employees. (Em- phasis supplied.) Conway testified, however, that in the final meeting he agreed to accept Re- spondent's seniority clause as in its entirety.27 • 4. Grievance procedure The Union's proposal provided a grievance procedure centering around the shop steward. Employee grievances were to be reported to the steward who was to attempt a settlement with the foreman . If the foreman 's decision was not satis- factory, provision was made for an appeal to the superintendent . If adjustment was not made at that level , it was provided that the local union's president should submit the grievance to the management. Respondent's refusal to permit a steward in the plant has already been referred to. Conway finally agreed to waive the provision for a steward provided some acceptable arbitration clause could be agreed upon. However, though Holmes testified that the Respondent agreed to give consideration to an arbitration clause, its counterproposal submitted on March 8 contained none. Indeed, it provided for recognition by the union of its "open door policy" ; that is, that any employee 20 No express denial of his testimony was made by Davis or Holmes. As will be shown, infra, Respondent's position as revealed by its counterproposal corroborates Conway's testimony. 27 As will appear from the summary of the final conference, infra, all of Conway's pro- posals and concessions then made were conditioned on the granting of a 5 -cent an hour increase. DIXIE CULVERT MANUFACTURING COMPANY 573 or group of employees should be free to enter, the office of the management during working hours at any time for the purpose of presenting or discussing a grievance; but in apparent recognition of the provisions of Section 9 (a) of the Act, it also provided that "the union shall be given the opportunity to have a representative, present at the adjustment of grievances." This issue was not resolved, though Conway made certain proposals relating thereto at the final conference, the happenings at which are next summarized. The final conference on March 9 28 Respondent had submitted its counterproposal at the conference on March 8, and after some discussion of its provisions 29 it was agreed that Conway should consider the draft overnight and that a further conference would be held the next day. As the conference opened on March 9, Commissioner Wheeler stated that it appeared that the parties were getting close to a contract, that the Union had some proposals to make, and he suggested that Conway mention them. How- ever, Davis intervened and asked permission to speak. He reviewed the course of the negotiations and stated that he considered his proposed contract was quite fair'to all parties concerned. Conway testified that Davis also stated flatly that he would not change a word of it. Davis' and Holmes' version was that Davis said he would stand by the contract and was "not inclined" to change any part of it as Conway expressed regret that the Respondent had taken such a position, since he had come prepared to make certain concessions. He then outlined his pro- posals in detail as follows : The Union would waive its demand for job classifications and accept a straight 5 cents an hour increase across the board provided Respondent would agree to the following changes in its proposal : 1. Add "Saturday" to Section III, Article IV, and delete the last sentence of said section. 2. Delete Section I, Article VI, and add an arbitration section. 3. Delete Article VII. . 4. Change Article X, Sections I, II, and III, to provide a 40 hour vacation with pay to all employees on the payroll for over one year. 5. Change Article XII to provide for a term of one year from date of signing. 28 The findings in this section are based on a composite and reconciliation of the testi- mony of Conway, Davis, and Holmes, which is not in significant conflict except on certain details later specifically referred to. 20 Conway testified that it was at that meeting that he dropped to an increase of 10 cents an hour and agreed to waive job classifications. His testimony to that effect has been credited. There was also some discussion of a possible arbitration clause. 30 On questioning by the Trial Examiner, Holmes would not testify positively that Davis' statement had included the qualifying phrase "not inclined" : Trial Examiner DOWNING. Did lie say he would agree to any changes at all? Did he say he would agree to any changes? The 'WITNESS. No, sir, he didn't say that; he said lie was inclined to stand by it. Trial Examiner DOWNING. Did he say "inclined"? The WITNESS. I wouldn't say here to you right now he said the word "inclined" or "I won't change a word in it." I don't remember the word inclined. Far be it for me to sit here and tell you--I couldn 't repeat in the morning a word we say here tonight. Conway's testimony is corroborated by the turn of events immediately following, and is credited. 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With the exception of these changes the Union was willing to accept Respond- ent's contract. As will be seen by reference to Respondent's contract (Appendix C) this amounted to a complete capitulation by the Union on such essential issues as hours, overtime, seniority, and job classifications. Nevertheless, Respondent evinced no interest in bargaining further, npr was there any real discussion of Conway's proposals." At one point Conway testified on cross-examination that he tried to go into the contract (by the making of the foregoing proposals), but he added, "We didn't get very far with that." 3z This was because Davis effec- tually shut off further discussions by reiterating his position, "We feel that the company's proposal is fair and I will not change one word of it." n Conway then stated that in view of the company's attitude there was nothing more he could do,3' and Wheeler thereupon adjourned the meeting. Holmes accused Conway of breaking off negotiations but Conway denied that be had done so in view of Re- spondent's attitude.' The final parting was cordial; the parties shook hands and Holmes invited Conway to come in to see him at any time.38 Subsequent events Conway left Little Rock immediately and did not return prior to the hearing. Neither party attempted to contact the other. On March 12, the Union through Conway filed the amended charge with in- cluded among other things a charge that Respondent had refused to bargain. 31 Davies' testimony reveals on its face that Respondent made no attempt to consider or discuss Conway 's proposals . Thus he testified that Conway "proceeded to tell us several of the concessions that he had been prepared to grant at the meeting that day," and that : After we listened to them Mr . Conway and Mr. Wheeler got up and we all shook hands. 11 Holmes' testimony , though not entirely clear, indicates his impression or recollection that there was discussion of a possible arbitration section and of other provisions. How- ever, neither Conway nor Davis testified to any discussion of Conway's proposals. Their testimony is accepted . Holmes was apparently referring to the earlier discussion of Respondent's contract on March S. 33 Conway 's version. Again Davis testified that his statement was that he was "not inclined" to change any part or section of the contract. It has been shown (footnote 30, supra) that Holmes would not support Davis' testimony that he used the qualifying phrase. Conway's version is accepted since it is clear - that Davis clearly intended to express the unqualified position that he would not consider any change in the company's proposed contract. Respondent's reaction to Conway's concessions and proposals indicated plainly that its position was adamant and that Davis was representing that the company's counterproposal was to be its final word. If the contrary were true, no reason appears for its failure to consider the extensive concessions made by Conway. Certainly his proposals laid the basis for further discussions and negotiations on all of the points in dispute. 31 Conway's testimony. According to Davis, Conway said, "\Ir. Davis has stated his position so we might just as well break off negotiations." 35 Holmes' testimony that he did not realize that negotiations were being terminated is disproved by his claim that Conway was guilty of breaking off negotiations and by his statements (testified to by Conway and not denied) that at the conclusion of the conference Holmes in bidding Conway goodbye said among other things, "It is too bad that we couldn't reach an agreement because I had fully intended to write in to your International Union and compliment you on the fine manner in which you conducted our meetings here," and "I hope that our not being able to reach an agreement here will not cause you to lose your job with the union.". 31 Davis and Holmes testified that immediately after the meeting broke up, Conway returned, stuck his head back into the room, and asked Davis to grant a 5 cents an hour increase and sign a contract. Conway did not deny the incident, but as found above he had proposed during the meeting that Respondent grant such an increase. DIXIE CULVERT MANUFACTURING COMPANY 575 This charge was served on Respondent May 6. On June 1, Respondent wrote the Regional Director a letter stating its position with reference to the charge. On July 22, without attempting to contact the Union, Respondent announced and inaugurated unilaterally a flat 10-percent wage increase.87 In November 1948, Davis and Holmes participated in a conference with Board representatives and with J. H. Winger, a representative of the Union, looking to a possible disposition of the charges. They testified that they then indicated to Winger a willingness to resume negotiations. However, Holmes on questioning. by the Trial Examiner testified that he did not know whether the Respondent was willing to bargain at any time after the amended charge was filed. He- testified that in the November conference "we had been in there discussing the- matter of the layoff" and that in putting the inquiry to the union representative. "do you want to bargain?" he was "testing him out." He then testified as; follows on questioning by the Trial Examiper : Q. Do I understand then that in November if the question of the layoff could have been taken out of the case, the company would have been willing to bargain? [Emphasis supplied.] A. I think so; yes, sir. Q. Is that still the respondent's position? A. No, sit; it isn't now because we think they have handled this wrong and because we think that they have waited so long now that the bargaining has been broken off since March 8 or 9 of 1948 and here it is past the twentieth of April, more than 13 months since they have refused to sit around a conference table with us and we think that they have forfeited their rights- We may be wrong about that; I don't think they want to bargain. Concluding findings The foregoing summary of the bargaining negotiations, particularly as they relate to the major issues which go to the heart of the usual collective bargaining agreement (wages, hours, overtime, and seniority), reveals that while going through the motions of bargaining,' Respondent consistently maintained a posi- tion under which it would have been enabled to retain full unilateral control. To insist on unilateral control over such essential factors is not to bargain in good faith; it is the negation thereof.3D These conclusions are supported by Respondent's position at the. final confer- ence. Negotiations had then lasted for a period of approximately 6 weeks, proceedings on the basis of the Union's draft of a contract. Respondent's first counterproposal, submitted the day before, had revealed that Respondent was still insisting on unilateral control over the most essential issues. Furthermore, when Wheeler opened the final meeting by stating that the parties seemed to be getting close to a contract and that the Union was prepared to announce a number of concessions, Davis intervened and stated Respondent would stick 17 This amounted to from G to 9 cents an hour. Is Its actions reveal that it was engaged in mere "surface bargaining " (N . L. R. B. V_ Whittier Mills, 111 F. 2c1 474 , 478 (C . A. 5) ), and that it "was giving the union a run- around while purporting to be meeting with the union for the purpose of collective bar- gaining" (N. L. R. B . v. Athens Manufacturing Co., 161 F . 2d 8 (C . A. 5) ). 39 It is well settled that an employer 's insistence on reserving to himself the right to take unilateral action with respect to such matters is the negation of the collective bar- gaining envisaged by the Act. South Carolina Granite Company, 58 NLRB 144&_ V-() Milling Company, 43 NLRB 348. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by its proposed contract and would not change any part of it. In other words, Respondent's proposal was to represent the final word and there was no ground for further consideration or changes. That such was respondent's position was emphasized by the fact that after Conway mentioned a number of important matters on which lie was prepared to yield and to make concessions, neither Davis nor Holmes evinced the slightest interest in discussing Conway's proposals or in exploring the possibility of further concessions. Indeed Davis foreclosed further negotiations by reiterating his statement that he considered his con- tract to be fair to all parties concerned and that he would not change any part of it. This was not a case where an impasse in bargaining had been reached. That principle has been considered as limited to cases where there has been a bona fide but unsuccessful attempt to reach an agreement with the Union, or where .the Union bears the guilt for having broken off relations, N. L. R. B. v. Andrew .Jergens Co., 175 F. 2d 130 (C. A. 9). Here it is found that the Respondent refused to bargain in good faith. The undersigned is convinced from the evidence that the Union made every reasonable attempt to reach an agreement with the Respondent and that it abandoned its efforts only when it was apparent at the final conference that further efforts would be futile,40 and that the only reasonable course remaining to it was the submission of the issues to the Board on charges filed. The Toledo Desk and Fixture Co., 75 NLRB 744. Under the foregoing circumstances, Respondent's granting of a unilateral wage raise in July was obviously in furtherance of its prior refusal to bargain in good faith and furnishes additional evidence of its bad faith toward the Union. Thus, though aware as early as May 6 of the Union's charge of a refusal to bargain, Respondent granted an increase substantially in excess of that which the Union had finally proposed. Cf. N. L. R. B. v. Crompton-Highland Hills, Inc., 337 U. S. 217, Craddock Terry Shoe Corp., 73 NLRB 1339. Its explanation that it was unaware of Conway's whereabouts as excusing its failure to attempt contact with and resumption of negotiations with the Union obviously does not ring true. The amended charge was signed by Conway and gave the Union's address and telephone number. Nor did Respondent at- tempt contact locally with Worthsmith, who was known by Davis and Holmes to be an officer of the Union's local and who was or had been a client of Holmes' law firm. Equally unpersuasive was Davis' excuse that he assumed the increase would be agreeable to the Union because of Conway's statement in approving the Christmas bonus and increase that he would not stand in the way of the employees receiving an increase in wages. Nor was Respondent's offer, during the November 1948 discussion of the charges, to resume bargaining negotiations made in good faith. Holmes' "test- ing out" offer to Winger to resume negotiations was plainly conditioned upon the prior removal from the case of the charge of the discriminatory lay-offs. It is therefore concluded, and found on the basis of the entire evidence that Respondent by its said acts, on January 27, 1948, and since, refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit in violation of Section 8 (a) (5) of the Act and thereby engaged in interference, restraint, and coercion of its employees' rights as guaranteed by Section 7, in violation of Section 8 (a). (1) of the Act. It is also found that the granting of the unilateral wage increase on July 22 con- stituted, independently, an act of interference and a violation of Section 8 (a) (1). 40 Cf. N. L. R. B. v. Highland Shoe, Inc., 119 F. 2d 218, 220-224 (C. A. 1). DIXIE CULVERT MANUFACTURING COMPANY 577 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE It is found that the activities of the Respondent set out in Division III hereof, occurring in connection with the operations of the Respondent described in Divi- sion I hereof , have a close , intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent, Dixie Culvert Manufacturing Com- pany, has engaged in unfair labor practices within the meaning of Section .8 (a) (1) and (5) of the Act (61 Stat. 136), it will be recommended that it cease and desist therefrom and that it take certain affirmative action in order to effectuate the policies of the Act. It having been found that from January 27 , 1948, and thereafter, Respondent has refused to bargain collectively with International Brotherhood of Boiler- makers, Iron Shipbuilders and Helpers of America , A. F. L., as the exclusive representative of its employees in an appropriate unit, it will be recommended that the Respondent, upon request, bargain collectively with said Union. It having been found that the Respondent has engaged in certain acts of inter- ference, restraint, and coercion, it will be recommended that the Respondent cease therefrom. The violations of the Act which the Respondent committed are, in the opinion of the undersigned, persuasively related to other unfair labor practices pro- scribed by the Act, and the danger of their commission in the future is to be anticipated from the Respondent's conduct in the past. The preventive purposes of the Act will be thwarted unless the order is coextensive with the threat. In order, therefore, to make more effective the interdependent guarantees of Sec- tion 7, to prevent a recurrence of unfair labor practices , and thereby minimize industrial strife which burdens and obstructs commerce , and thus effectuate the policies of the Act, it will be recommended that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Since it has been found that Respondent did not discriminatorily discharge, lay off, or refuse to reinstate Max Hendrickson , James B. York, Raymond Lind- sey, Roy Stogner, and Leslie Edmonson, it will be recommended that the com- plaint be dismissed in that respect. Upon 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 Brotherhood of Boilermakers , Iron Shipbuilders and Helpers of America, A. F. L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. All production employees of Respondent, exclusive of office and clerical employees , foremen, night watchmen, and supervisory employees with authority to hire and fire or effectively recommend such action, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. At all times since January 8 , 1948, International Brotherhood of Boiler- makers, Iron Shipbuilders and Helpers of America , A. F. L., has been and now 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is the exclusive representative of all the employees of the Respondent in the unit above described for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on or about January 27, 1948, and at all times thereafter, to bargain collectively with International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of America, A. F. L., as exclusive representative of all its employees in the aforesaid 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, Respondent has engaged in and is engaging in unfair labor practices Within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commleice within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the foregoing 'findings of fact and conclusions of law and upon the entire record of the case, the undersigned recommends that Dixie Culvert Manufacturing Company, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with International Brotherhood of Boiler- makers, Iron Shipbuilders and Helpers of America, A. F. L., as the exclusive representative of all its employees in the unit heretofore found appropriate with respect to rates of pay, wages, hours of employment, or other conditions of employment ; (b) Interrogating its employees concerning their union membership and ac- tivities, as to their attendance at union meetings, and as to how they intended to vote in elections conducted by the National Labor Relations Board; (c) Threatening to padlock its doors if the Union came into the plant; threat- ening to cut employees' working hours and to reduce their total take-home pay if the Union came into the plant ; threatening to lay off or discharge employees, who voted for or joined the Union, and to deprive union members of overtime work and of other privileges; (d) Promising employees better jobs to induce employees to abandon their support of the Union ; (e) Directing and seeking employees' assistance in ascertaining union activities ; (f) Permitting, encouraging, and/or causing to be circulated on its time and property petitions directed against the Union ; (g) Promising, announcing, and/or granting unilaterally, without first bar- gaining with the Union, wage increases to its employees in the unit described herein ; and (h) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of their right to self-organization,'to form labor organiza- tions, to join or assist International Brotherhood of Boilermakers, Iron Ship- builders and Helpers of America, A. F. L., or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and•all such activities except'to the .extent that such right may be affected by an agreement requiring membership in 'DIXIE CtTLVERT MANUFACTURING COMPANY 579 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 undersigned finds will effectuate the policies of the Act : (a.) Upon request, bargain collectively with International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of America, A. F. L., as the exclusive bargaining agent of all its employees in the bargaining unit described herein with respect to rates of pay, wages, hours of employment, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement ; (b) Post at its Little Rock, Arkansas, plant, copies of the notice attached hereto marked Appendix A. Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said, notices are not altered, defaced, or covered by any other material ; and (c) Notify the Regional Director for the Fifteenth Region (New Orleans, Louisiana), in writing within twenty (20) days from the receipt of this Inter- mediate Report and Recommended Order what steps Respondent has taken to comply herewith. It is further recommended that unless on or before twenty (20) days from the date of the receipt of this Intermediate Report and Recommended Order Re- spondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring Respondent to take the action aforesaid. It is further recommended that the complaint be dismissed insofar as it alleges that the Respondent discriminatorily discharged and failed or refused to reinstate Max Hendrickson, James B. York, Raymond Lindsey, Roy Stogner, and Leslie Edmonson in violation of Section 8 (a) (1) and (3) of the Act. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board 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, 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. Immediately 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. Statements of exceptions and briefs shall designate by precise "citation the por- tions 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. 877359-50-vol. 87--38 580 DECISIONS OF NATIONAL LABOR RELATIONS 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, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 22nd day of July 1949. GEORGE A. DOWNING, 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 Labor Management Relations Act, we hereby notify our employees that : WE WILL NOT refuse to bargain collectively with INTERNATIONAL BROTHER- HOOD OF BOILERMAKERS, IRON SHIPBUILDERS AND HELPERS OF AMERICA, A. F. L., as the exclusive representative of all employees in the appropriate unit described below. WE WILL NOT interrogate our employees concerning their union member- ship and activities, as to their attendance at union meetings, and as to how they intend to vote in elections conducted by the National Labor Relations Board. WE WILL NOT threaten to padlock our doors if the Union comes into the plant; threaten to cut employees' working hours and to reduce their total take-home pay if the Union conies into the plant ; threaten to lay off or dis- charge employees who voted for or join the Union, and to deprive union members of overtime work or of other privileges. WE WILL NOT promise employees better jobs to induce them to abandon their support of the Union. WE WILL NOT direct and seek employees' assistance in ascertaining union activities. WE WILL NOT permit, encourage, and/or cause to be circulated on our time and property petitions directed against the Union. WE WILL NOT promise, announce, and/or grant unilaterally, without first bargaining with the Union, wage increases to our employees in the unit described herein. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS AND HELPERS OF AMERICA, A. F. L., or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, and to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8 (a) (3) of the Act. WE WILL BARGAIN collectively, upon request, with INTERNATIONAL BROTHER- HOOD OF BOILERMAKERS, IRON SHIPBUILDERS AND HELPERS OF AMERICA, A. F. L., as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, wages, hours of employment, DIXIE CULVERT MANUFACTURING COMPANY 581 and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All our production employees at our plant in Little Rock, Arkansas, ex- clusive of office and clerical employees, foremen, night watchmen, and supervisory employees with authority to hire and fire or effectively recommend such action. All our employees are free to become or remain members of said Union or any other labor organization. DIxIE CULVERT MANUFACTURING COMPANY, 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. APPENDIX B UNION'S PROPOSAL This Agreement entered in to the ------------------------ between the Dixie Culvert Manufacturing Company, hereinafter referred to as the "Employer", and the International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of America, Lodge No. 66 hereinafter referred to as the "Union". Article I-Intent SEC. I. It is the intent and purpose of the parties hereto that this Agreement will promote and improve industrial and economic relations between the Em- ployer and the Union and will provide for orderly collective bargaining, will secure prompt and fair disposition of grievances. Article II-Recognition SEC. I. The Employer recognizes the Union as the sole and exclusive bargaining agency for the purpose of bargaining in respect to rates of pay, wages, hours of employment and all other conditions of employment for all of the Employers production and maintenance employees, excluding clerical employees, watchman and foreman with the authority to hire or fire or effectively recommend such. Article III-Hours of work, Overtime and Holidays SEC. I. Forty hours shall constitute a week's work, from Monday to Friday inclusive. The established schedule of hours shall be from 8 a. m. to 12 noon and from 12:30 noon to 4:30 P. M. 'SEC. II. Time and one-half shall be paid for work performed in excess of eight hours in one day and for hours worked on Saturday. Double time shall be paid for hours worked on Sunday. SEC. III. When the following legal holidays, New Year's Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day and Christmas Day, occur or are celebrated, during an employee's regular work week he shall receive said holi- days off duty with his regular straight time rate of pay, provided that he shall have been in the employ of the company at least thirty (30) calendar days. 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the event an employee is required to work on one of the above named holi- days he shall receive double time for such time worked, in addition to his regular holiday pay. However if any employee shall refuse to work on a holiday if he is requested by the Employer, he shall forfeit his holiday pay. If an employee shall be absent on his regular scheduled vacation when one of the above holidays occurs, he shall be paid for such holiday in addition to his regular vacation pay. SEC. IV. All overtime work shall be equally divided among the employees. Article IV-Show-Up Time SEC. I. Any employee reporting for work and given no work shall receive four (4) hours pay, unless employee had been notified the previous day not to report for work. Verbal notice by a foreman to an employee and Shop Steward or a notice placed on the bulletin board shall constitute sufficient notice to the affected employees. SEC. If. Any employee reporting to doctor as a result of an injury on job shall be paid for any time lost on first day of injury. Article V-Grievance Procedure -SEC. I. In the event a grievance arises between an employee or group of employees, and the Employer, such grievance shall be handled in accordance with the following procedure. SEC. II. The employee or employees having a grievance shall report same in a signed statement to Shop Steward who will in turn take up the grievance with the Foreman verbally. The foreman will attempt to make a satisfactory settle- ment and will advise the Steward of his decision. SEC. III. If the Steward and employee are not satisfied with the decision of the Foreman, then the Steward shall submit the grievance to the Superintendent verbally. The Superintendent shall make his decision within ten (10) days, of the time the grievance was submitted to him. If the Steward or employee is not satisfied with the decision of the Superintendent, then the Steward shall report the grievance to the Local Union's President who shall submit grievance to the management within ten (10) days and endeavor to reach an agreement. SEC. IV. Nothing contained herein shall be construed as limiting or abridging the right of the International Union to assign an International Representative to work with or assist any Local Union in the negotiation or application of the terms and conditions of this Agreement. Article VI-Agent of Union and Responsibility SEC. I. It is further understood and agreed that Local No. 66 shall designate the Local Representative who is duly authorized and will be consulted in all matters pertaining to the application of this Agreement. It being specifically understood that the International Union will only be liable for the acts of said Agent when such acts have first been approved in writing by the International President's Office. Article VII-Shop Stewards SEC. I. There shall be no less than one (1) nor more than two (2) Shop Stew- ards, these Stewards to be appointed by the Union. SEC. H. Shop Stewards may leave their work during their, regular working hours, without the loss of time for the purpose of adjusting grievances, the time to be agreed to by Foreman. DIXIE CULVERT MANUFACTURING COMPANY 583 Article VIII-Bulletin Board SEC. I. The Employer will provide a bulletin board in a suitable location in the plant for the use of the Union. Article IX-Seniority SEC. I. Seniority is defined as .the principle that if, due to lack of work, the employer deems it advisable to reduce forces, the last man hired, shall be the first man laid off, and, in rehiring the last man laid off shall be the first man rehired, until the list of former employees is exhausted. SEC. II. Seniority shall be the determining factor regarding layoff and re-em- ployment, transfers, demotions, promotions, or other job changes where the necessary skill and ability are present to perform the work required. SEC. III. Seniority shall be lost for the following reasons : a. Voluntary quitting. b. Discharge for cause. C. Layoff for twelve (12) consecutive months. d. If laid off employee is notified by company by registered mail sent to his last known address to return and fails to do so within five (5) days of mailing of letter unless a reasonable excuse shall be established. SEC. IV. Employees with established seniority who either volunteer or are called and inducted into the Service of the United States under Selective Service Act shall accumulate, without interruption, all seniority rights during the period of such service. SEC. V. Seniority shall be on a plant basis by job classification. If an employee is transferred to another job classification he shall carry his seniority with him. SEC. VI. Seniority list shall be maintained and kept up to date by Employer at all times and shall be available to the Union for the purpose of check at any time. A copy of the seniority list shall be supplied to the Stewards of the Union. Article X-Vacations SEC. I. It is understood and agreed by both parties to this Agreement that all employees within the bargaining unit of the Union who shall have been in the service of the company one year and less than three years and who shall have worked at least 1040 hours in the one year period shall receive a vacation equal to the number of days in the employer's regularly scheduled work week. All employees who shall have been in the service of the company three years and less than five years and who shall have worked at least 1040 hours in the preceding year shall receive a vacation of eight days if the company regularly scheduled work week is five days, or a vacation of nine days if the company regularly scheduled work week is six days. All employees who shall have been in the service of the company five years or more and who shall have worked at least 1040 hours in the preceding year shall receive the number of days at straight time pay that the company is then working in two regularly scheduled work weeks. SEC. II. Any employee who is laid off or quits his job, but has not received his vacatioia according to Article X, Sec. I, shall be paid such vacation time due him. SEC. III. Vacation periods shall be granted at the convenience of the company, but whenever possible, vacations will be given at times most desired by the employees, who will be permitted to indicate their choice by order of seniority. The employer may eliminate vacations entirely, but in such event, the employees 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shall receive vacation pay at straight time for any period to which he was entitled to vacations as set forth in Article X, Sec. 1. Article XI-Wage rates SEC. I. The minimum wage rates shall be as follows : Layout man------------------------------------------------ $1.35 per hour Welders----------------------------------------------------- $1.20 per hour Tackers----------------------------------------------------- $1.00 per hour Welder and Testers_________________________________________ $1.20 per hour Flanger----------------------------------------------------- $1.20 per hour Painter----------------------------------------------------- $1.20 per hour Roll and riveting machine Opt_______________________________ $1.20 per hour Truck drivers----------------------------------------------- $1.00 per hour Helpers----------------------------------------------------- $0.90 per hour When employees are transfered to a new job their rate of pay shall not be changed for a period of fifteen (15) working days. If they are retained on the new job after this probationary period the job rate called for by this schedule shall then be paid to them. Article XII-Check off of Union dues SEC. I. Upon receipt of written authorization by any employee the Employer shall deduct from the first pay each month and remit to the Local Union, such sum as the employee shall specify in said authorization. All money so deducted by the company shall be immediately forwarded to the Local Union's Secretary and Treasurer. Article XIII-Termination SEC. I. This Agreement shall remain in full force and effect until ------------- ---------------- and thereafter from year to year unless within the ten (10) day period immediately preceding the sixty (60) days prior to any date of expira- tion, notice is given in writing to the other party desiring a change. Anything in this Agreement found to be contrary to any State or National law shall be automatically voided. This Agreement subject to the approval of the Union's International President. INTERNATIONAL BROTHERHOOD OF BOILER- MAKERS, IRON SHIPBUILDERS AND DIXIE CULVERT MANUFACTURING HELPERS OF AMERICA, LOCAL No. 66 COMPANY ----------------------------------- ------------------------------------ ------------------------------------ ------------------------------------ ------------------------------------ ------------------------------------ ------------------------------------ ------------------------------------ Dixie Culvert Manufacturing Company, 1601 East 9th Street, Little Rock, Arkansas, Phone 42225. DIXIE CULVERT MANUFACTURING COMPANY 585 APPENDIX C RESPONDENT'S PROPOSAL This agreement entered into this ____ day of ____________, 1948, between the Dixie Culvert Manufacturing Company, hereinafter referred to as "Employer", and the International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of America, Lodge No. 66, hereinafter referred to as "Union". Article I-Intent SEC. I. It is the intent and purpose of the parties hereto that this Agreement will promote and improve industrial and economic relations between the Em- ployer and the Union and will provide for orderly collective bargaining. Article II-Recognition SEC. I. The Employer recognized the Union as the exclusive bargaining agent for the purpose of bargaining in respect to rates of pay, wages, hours of employ-. ment, and other conditions of employment for all of the Employer's production and maintenance employees , excluding clerical employees , watchmen and foremen, with authority to hire or fire or effectively recommend such. Article III-Union Membership SEC. I. Employer will not discriminate for or against any employee because of membership or non-membership in the Union. . SEC. H. Employer recognizes the.right of employees to join the Union for the purpose of collective bargaining or mutual aid or protection. . SEC. III. The Union recognizes that employees have the right to refrain from joining the Union. SEC. IV. Membership in the Union shall not be a condition of employment with the Employer. Article IV-Hours of Work SEC. I. Forty hours shall constitute a work week and shall be included in the period from 7: 30 A. M. on Monday to 6: 00 P. M. on Saturday of each calendar week. The Employer shall fix the daily hours of work. SEC. H. Time and one-half will be paid for work performed in excess of forty hours in any one work week. SEC. III. When the following legal holidays, New Year's, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day and Christmas Day, occur on either Mon- day, Tuesday, Wednesday, Thursday or Friday, employees shall receive said holi- day with regular straight time pay of eight hours, provided no employee will be given said holiday with pay unless he has been in the employ of the Employer for at least thirty calendar days. Holiday pay hours are to be excluded from the work week. In the event an employee is required to work on one of the above named holi- days, he shall receive double time for such work. However, if any employee shall refuse to work on a holiday on request by the Employer, he shall forfeit his holiday pay. If an employee shall be absent on his regular scheduled vacation when one of the above holidays occurs, he shall be paid for such holiday in addition to his regular vacation pay. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Article V-Show-Up Time SEC. I. Any employee reporting for work and given no work shall receive four (4) hours pay , unless employee has been notified the previous day not to report for work. Verbal notice by a foreman to an employee or written notice placed on the bulletin board shall constitute sufficient notice to the affected employee. Article VI-Grievance Procedure SEC. I. Because of the small number of employees working for the Employer, it is recognized that the Employer operates under the "open door policy," that is to say, that any employee or group of employees is free to enter the office of the management during work hours at any time for the purpose of presenting or discussing a grievance. SEC. II. Any individual employee or group of employees shall have the right at any time to present grievances to Employer and to have such grievances adjusted, without the intervention of the Union, but the Union shall be given the oppor- tunity to have a representative present at the adjustment of grievances. SEC. III . Nothing contained herein shall be construed as limiting or abridging the right of the. International Union to assign an International Representative to work with or assist any local Union , in the negotiation or application of the terms and conditions of this Agreement. Article VII-Agent of Union and Responsibility SEC. I. It is further understood and agreed that Local No. 66 shall designate a Local Representative who is duly authorized and will be consulted in all matters pertaining to the application of this Agreement . The International Union may assign. an International Representative to work with or , assist the Local Repre- sentative. It is specifically understood and agreed that the International Union will be liable. for the acts of both the Local Representative and the International Representative and Employer shall not be obligated to determine whether either or both act within the scope of their authority. Article VIII-Bulletin Board SEC. I . The Employer will provide a bulletin board in a suitable location in the plant for its use and the use of the Union and employees. Article IX-Seniority SEC. I. Seniority is defined as the principle that if, due to lack of work, the Employer deems it advisable to reduce forces, the last man hired, shall be the first man laid off, and, in rehiring the last man laid off shall be the first man rehired, until the list of former employees is exhausted. SEC. II. Individual qualifications of employees shall include skill, ability, apti- tude, efficiency, health and energy to do a good day's work. Employer shall be the sole judge of the foregoing individual qualifications of its employees. SEC. III. Seniority shall be the determining factor regarding layoff and re- employment, transfers, demotions, promotions, or other job changes where Em- DIXIE CULVERT MANUFACTURING COMPANY 587 ployer finds that employees with higher seniority have equal or greater individual qualifications to perform the work required. SEC. IV. Seniority shall be lost for the following reasons : a. Voluntary quitting. b. Discharge for cause. c. Layoff for twelve (12) consecutive months. d. If laid off employee is notified by Employer by registered mail sent to his last known address to return, and fails to do so within three (3) days of mailing of letter, unless a reasonable excuse shall be established. SEC. V. Employees with established seniority who either volunteer or are called and inducted into the Service of the United States under the Selective Service Act shall accumulate, without interruption, all seniority rights during the period of such service. SEC. VI. Seniority shall be on a plant basis by job classification . If an employee is transferred to another job classification he shall carry his seniority with him. SEC. VII. Seniority list will be posted by Employer quarterly on the bulletin board. Article X-Vacations SEC. I. It is understood and agreed by the parties to this Agreement that the employees of Employer, as hereinafter provided, who have, beginning January 1, 1948, performed forty hours of work in any fifty weeks in any calendar year shall be entitled to a vacation with pay during the following calendar year. SEC. II. Employees having worked one year and less than two years, and meet- ing the requirements of Sec. I of this Article, will be entitled to a vacation with pay of twenty hours at their respective base hourly pay. SEC. III. Employees having worked for Employer for more than two consecu- tive years, and meeting the requirements of Sec. I of this Article, will be entitled to a vacation with pay of forty hours at their respective base hourly pay. SEC. IV. Any employee who is laid off or quits his job, but has not received his vacation according to the terms of this Article, shall be paid such vacation time due him. SEC. V. Vacation periods shall be granted at the convenience of the Employer but whenever possible vacations will be given at times most desired by the employees who will be permitted to indicate their choice by order of seniority. Article XI-Wage Rate SEC. I. The Union recognizes that the Employer granted "across the board" a live cent per hour wage increase to all of its employees in December of 1947 and that because of the unfavorable prospects of the Employer for business during the year 1948 it is most impracticable for Employer at this time to grant additional increases in the hourly wage rate. SEC. II. Employer agrees that it will undertake, but without positive com- mitment, to maintain employment in its plant at the present level, and unless restricted by scarcity of materials and slackening of demand for its manufac- tured articles, it will not cause any additional layoffs of employees or reduction in the base hourly wage scales now prevailing in its plant. Article XII-Termination SEC. I. This agreement shall remain in full force and effect until January 9, 1949. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Anything in this Agreement found to be contrary to any State or National law shall be automatically voided. DIXIE CULVERT MANUFACTURING COMPANY By --------------------------------------- Employer INTERNATIONAL BROTHERHOOD OF BOILER- MAKERS, IRON SHIPBUILDERS AND HELPERS OF AMERICA, LOCAL No. 66 --------------------------------------- --------------------------------------- ---------------------------------------