Central Metallic Casket Co.

In the Matter of CENTRAL METALLIC CASKET Co. and CASKET WORKERS UNION, LOCAL No. 166, UPHOLSTERERS INTERNATIONAL UNION OF NORTH AMERICA . Case No. 13-CA-218.-Decided September 28,1950 DECISION AND ORDER On January 25, 1950, Trial Examiner W. Gerard Ryan issued his Intermediate Report finding that the Respondent had engaged in unfair labor practices within the meaning of Section 8 (a) (1), 8 (a) (3), and 8 (a) (5) of the Act, and recommending that the Respondent cease and desist therefrom, and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent and the Charging Party filed exceptions to the Intermediate Report and supporting briefs. The Board' has reviewed the Trial Examiner's rulings made at the hearing and finds that no prejudicial errors were committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, briefs, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, to the extent that they are consistent with our Decision and Order herein? The Trial Examiner's conclusion that the Respondent violated Section 8 (a) (5) and (1) of the Act is premised upon: (1) The Respondent's institution, on February 14, 1949, of the "bonus plan," 3 which substantially changed the established wage plan for employees represented by the Union.; 4 and (2) the Respondent's individual deal- ings with such employees both before and after the institution of the 1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Reynolds , Murdock, and Styles]. 8 The Respondent's request for oral argument is hereby denied, as the briefs and the record adequately present the position of the parties. 3In brief, the "bonus plan" involved a change-over from a piecework system of wage computation to an hourly rated system having "bonus" or incentive pay features. In operation , the plan effected an increase in average hourly wages in the case - of about 24 of the approximately 36 employees in the appropriate unit and a reduction in the wages of the remaining 12. 4 There is no question that, as the parties stipulated, the Union constituted at all times here material , the statutory representative of the employees affected by the bonus plan. 91 NLRB No. 88. 572 CENTRAL METALLIC CASKET CO. 573 bonus plan. The Trial Examiner interpreted these acts as unlawful interferences with the employees' right to bargain collectively, despite the undisputed fact that the Respondent had theretofore conferred with the Union about the bonus plan in a series of bargaining meetings taking place in December and January 1949. He found, as to these meetings, that the Union had not at any time agreed to the Respond- ent's proposed institution of the "bonus plan" and that its negotiations with the Union on the bonus plan during such meetings did not entitle the Respondent to believe that further negotiations on the subject would be futile. Hence, in determining the legal validity of the Respondent's acts, the Trial Examiner treated such acts as having taken place at a time when negotiations were still pending.5 In its exceptions, the Respondent contends, in part,' that on January 24, 1949, "good faith" negotiations between it and the Union had reached an impasse and that in the face of such an impasse, it was privileged to take the action which the Trial Examiner found to be violative of the Act. It is true that ordinarily a good-faith bargaining impasse connotes the futility of further negotiations and, in the case of the employer- party to the collective relation leaves that employer free to take cer- tain economic steps not dependent upon the mutual consent of the union.? We may assume, without deciding, that such an impasse had been reached at one stage of the negotiations here. We are of the opinion, however, that even in the face of such an impasse, the Re- spondent was not privileged to engage in the conduct upon which the complaint is based. The existence of a bargaining impasse does not destroy either the authority of the representative to act within the sphere of its repre- sentation nor the right of the employees to seek by collective action (which may take the form of either further negotiation or concerted application of economic pressures) to persuade the employer to accept the collective position of the group as to the particular terms which 5It is well established that unilateral changes in employment terms and individual deal- ings with employees about such changes are proscribed at a time when negotiations between an employer and a union having representative status are pending. May Department Stores Co. v. N. L. R. B., 326 U. S. 376; Medo Photo Supply Corp. v.. N. L. R. B., 321 U. S. 678. See also Tomlinson of High Point, Inc., 74 NLRB 681, 687, 715 and Allen-Morrison Sign Co., Inc., 79 NLRB 901, 903, 908, where we held that the employer's unilateral action dur- ing pendency of negotiations was not excused by virtue of the fact that he had merely notified the union of the proposed action. ° We find no merit to the Respondent's alternative contention that by January 24, the Union had orally agreed to the Respondent's proposed institution of the bonus plan. The Trial Examiner fully considered the same contention on the merits and found that no agreement was reached in these negotiations. We adopt this finding as it is based upon preliminary credibility determinations, which in accordance with well-established precedent, we do not disturb. See Wilson & Company, Inc., 88 NLRB 1. * See J. I. Case Company v. N. L. R. B., 321 U. S. 332; W. W. Cross, Incorporated, 77 NLRB 1162 ( and cases therein cited). 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shall govern the employment relation. Accordingly, as we have fre- quently held, a bargaining impasse does not relieve an employer from the continuing duty to take no action which the employees may inter- pret as a "disparagement of the collective bargaining process" s or which amounts in fact to a withdrawal of recognition of the union's representative status or to an undermining of its authority.9 That the Respondent, after failing to persuade the Union to accept the bonus plan, sought to subvert the collective bargaining process and to undermine the authority of the statutory representative , is established by the record facts including : ( 1) The undertaking of Rapp, the Respondent's general manager, immediately following the employees' collective rejection of the bonus plan, to hold extended individual con- ferences with the three employee members of the bargaining commit- tee (Barrett, Remer, and Walker) who he regarded as being prin- cipally responsible for blocking union acceptance of the plan; 10 (2) Rapp's refusal during such conferences to grant the proper request of Barrett and Remer that the outside union agent be included in the discussions ; n (3) Rapp's attempt, during the conferences with Union Steward Barrett to obtain, not only Barrett's individual acquiescence to the plan, but also his active support and promulgation of it among the employees ; (4) the later application by the Respondent of coercive discharge pressures , for the purpose of obtaining from employee leaders of the Union , written evidence of their individual agreements to the bonus plan terms. Such pressures were applied despite the fact that the employees expressly advised the Respondent's agents that they considered such individual agreements to be inconsistent with See N. L. R. B. v. Crompton-Highland Mills, Inc., 337 U. S. 217. ° See the Crompton-Highland Mills case footnote 8, supra. See also the following cases in which we held that employers could not deal individually with employees who are on strike pursuant to a union determination to apply that form of economic pressure on an employer to enforce a demand such employer rejected in the course of prior bargaining: Sam'l Bingham'8 Son Mfg. Co., 80 NLRB 1612; Cathey Lumber Co., 86 NLRB 157 ; Cin- cinnati Steel Casting Company, 86 NLRB 592: Anchor Rome Mills Co., 86 NLRB 1120. 10 In testifying as to the negotiating conferences on the bonus plan held in December and January, Rapp described Barrett, Remer, and Walker, as the only three members of the bargaining committee who adamantly opposed union agreement to the plan. 11 See Air Associates Incorporated, 20 NLRB 356, 362, enforced with modifications not material here, 121 F. 2d 586 (C. A. 2), where we held that the employer's attempts in that case to persuade individual employee members of the bargaining committee to accept a proposal apart from the outside union agent, were per se violative of the Act. We there pointed out that "not only does such a practice by an employer 'undercut' the authority of a chosen representative to act within the sphere of representation in regard to the execution of a collective bargaining contract but it subjects the employees to the very pressures collective bargaining would obviate." CENTRAL METALLIC CASKET CO. 575 their obligations to the Union and they desired an opportunity to discuss the matter with the Union before responding to the demand.12 They were denied that opportunity and were discharged.13 We conclude as did the Trial Examiner that at all times subsequent to February 3,1949, the date when the Respondent first conferred with individual employees, the Respondent interfered with, restrained, and coerced the employees comprising an appropriate unit,14 in the exercise of their right to be represented by the Union, thereby. violating Sec- tion 8 (a) (5) and (1) of the Act. We also agree with the Trial Examiner's finding that the Respond- ent would not have discharged Barrett, Remer, and Walker if these employees had complied with the demand of the Respondent's agent that they sign the written instruments, setting forth the changed em- ployment terms encompassed in the bonus plan. As noted above, the employees' resistance to the Respondent's demand was a legally pro- tected exercise of the rights guaranteed by Section 7 of the Act. It, follows, therefore, that in discharging these employees for that reason,. and in refusing to reinstate them, the Respondent violated Section 8 (a) (3) and (1) of the Act. 12 It is well established that even in the absence of a majority bargaining representative, an employer may not apply such intimidating pressures for the purpose of obtaining from employees either individual agreements inconsistent with their union obligations or any other affirmative manifestation of their abandonment of such obligations . See for example, Port Gibson Veneer d Box Company, 70 NLRB 317, enforced with modifications not mate- rial here , 167 F. 2d 144 ( C. A. 5) ; Bear Brand Hosiery Company , 40 NLRB 323 , 339-340, enforced 131 F . 2d 731 (C. A. 7) ; Adel Clay Products Company, 44 NLRB 386, enforced 134 F. 2d 342 ( C. A. 8). Compare Sam'l Bingham's Son Mfg. Co., 80 NLRB 1612. In the instant case , the Respondent's conduct is aggravated by the fact that immediately preceding the February 15 demand for individual agreements , the Union notified the Respondent , in effect, that it was temporarily suspending the taking of the strike action in protest to the installation of the bonus plan , in the interest of exploring the possibility of settlement of the dispute through arbitration procedures . Such notice may well be regarded as a renewed request to reopen negotiations , thus ending the privileges Respond- ent might otherwise possess in an impasse situation . For, if the duty to bargain is an operative one, an employer cannot even accept employee proffers to deal with him on an individual basis , even though he has not directly solicited such proffers (Mello Photo Supply Corporation v. N. L. R. B., 321 U. S. 678 ), much less solicit such individual agreement. 13 In the light of the foregoing conduct , we are convinced also that the Respondent's general promulgation and institution of the plan on February 14 necessarily represented to the employees that the Respondent no longer recognized the right of the Union further to bargain collectively on their behalf with respect to the bonus plan, and accordingly constitutes additional evidence of violation of Section 8 (a) (5) and ( 1) of the Act. See the cases cited in footnote 7, supra. 34 we adopt the Trial Examiner's unit findings in full . We note in so doing that the unit is an employer-wide production unit of the type we have traditionally held to be appropriate and that the parties so conceded by their stipulations at the hearing and by the absence of exceptions to the Trial Examiner 's unit determinations. In view of the state of the record as a whole , including the stipulation of the parties that the employees of the Respondent constituted the appropriate unit, we are satisfied that any question concerning the expired multiemployer contract or the multiemployer negotiations , is not an operative factor in considering the conduct here alleged to be violative of the Act . Accordingly , we neither adopt nor pass upon the contents of footnote 6 of the Trial Examiner's Intermediate Report or the applicable paragraph in the text. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Remedy Consistent with our usual practice, we shall order the Respondent to cease and desist from the specific violations found. In addition, because we regard the Respondent's unlawful activities as manifesting the general opposition to its obligations under the Act and a purpose to dissipate the collective strength of the employees' consummated organization, we deem it necessary to prevent, by issuance of a broad cease and desist order, any attempts of the Respondent to thwart the rights guaranteed employees by Section 7 of the Act. As affirmative measures, we shall direct the Respondent to : (1) Reinstate with back pay the employees it has discriminatorily dis- charged and refused to reinstate; and (2) upon request bargain col- lectively in good faith with the Union as the representative of the employees in the unit hereinbefore found to be appropriate. Since the issuance of the Trial Examiner's Intermediate Report, the Board has adopted a method of computing back pay different from that prescribed by the Trial Examiner 15 Consistent with the new policy, we shall order that the loss of pay be computed on the basis of each separate calendar quarter or portion thereof during the period from the Respondent's discriminatory actions to the date of a proper offer of reinstatement. The quarterly periods, hereinafter called "quarters," shall begin with the first clay of January, April, July, and -October. Loss of pay shall be determined by deducting from a sum equal to that which the employee would normally have earned for each quarter or portion thereof, his net earnings,ls if any, in other employ- ment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. We shall also order the Respondent to make available to the Board upon request payroll and other records to facilitate the checking of the amount of back pay due 17 We do not agree with the Trial Examiner that effectuation of the policies of the Act requires that we should additionally command the Respondent to revoke the bonus plan and revert to the method and rate of pay existing prior to the institution of the plan 18 The bonus plan 'IF. W. Woolworth Company, 90 NLRB 289. " Crossett Lumber Company, 8 NLRB 440 ; Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 17 F. W. Woolworth Company, supra. 18 We note that the Union in its exceptions desires that the bonus plan revocation order recommended by the Trial Examiner be broadened to command the payment to employees adversely affected by the bonus plan of the sums they lost by reason of the changed method of payment. The Respondent , on the other hand, objects to the order framed by the Ex- aminer and to any expansion . For the reasons set forth above, we find merit in the Respondent' s exceptions. CENTRAL METALLIC CASKET CO. 577 neither encompasses any illegal conditions of employment, nor any operative bars on the Union's utilization of the collective bargaining procedures. Moreover, the order effectively insures to the Union the full enjoyment of its rights in the future to use the bargaining processes for the purpose of presenting to the Respondent any demands for the revocation of the bonus plan or for the restitution of wage payments to the employees such plan adversely affected. We assume, of course, that the Respondent will comply with the order in good faith. Under those circumstances , an order of the type recommended by the Trial Examiner or requested by the Union would appear to represent an unnecessary economic determination of the merit of the Union's bargaining position on the desirability of the bonus plan?9 ORDER Upon the entire record in this case and pursuant to Section 10 (c) of the Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Central Metallic Casket Co., and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to recognize or to bargain collectively in good faith with Casket Workers Union, Local No. 166, Upholsterers International Union of North America, as the exclusive representative of all pro- duction employees of the Respondent, except foremen, foreladies, office employees, chauffeurs, salesmen, and officials. (b) Taking any unilateral action, or dealing individually with employees in derogation of their bargaining representative, with re- spect to any matter properly the subject of collective bargaining; (c) Discouraging membership in Casket Workers Union, Local No. 166, Upholsterers International Union of North America, or in any other labor organization of its employees, by discharging or refusing to reinstate any of its employees or in any other manner discriminating in regard to their hire and tenure of employment, or any term or condition of employment; (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Casket Workers Union, Local No. .166, Upholsterers International Union of North America, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining, or other mutual,aid and protection, or to °'s Compare Inland Steel Company, 77 NLRB 1 ; Weyerhauser Timber Co., 87 NLRB 672. 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refrain from any and all such activities, as guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by a collective bargaining agreement meeting the conditions set forth in the proviso to Section 8 (a) (3) of the Act, and requiring membership in a union as a condition of continuing employment. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to Ordo Barrett, William F. Remer, and Anton Walker immediate and full reinstatement to their former or substantially equivalent positions 20 without prejudice to their seniority and other rights and privileges, and make each of them whole, in the manner set forth in the Section entitled The Remedy for any loss of pay he may have suffered by reason of the discrimination of the Respondent against him ; (b) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the right of reinstatement under the terms of this Order; (c) Bargain collectively, upon request, with Casket Workers Union, Local No. 166, Upholsterers International Union of North America, as the exclusive representative of all employees in the unit described in 1 (a) above, with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment; (d) Post at its plant in Chicago, Illinois, copies of the notice at- tached hereto and marked Appendix A.21 Copies of said notice, to be furnished by the Regional Director of the Thirteenth 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; (c) Notify the Regional Director for the Thirteenth Region in writing within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. 20 See the Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 837. Also Macon Textiles, Inc., 80 NLRB 1525. u In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted in the notice, before the words : "A Decision and Order" the words: "A Decree of The United States Court of Appeals Enforcing." CENTRAL METALLIC CASKET CO. APPENDIX A NOTICE TO ALL EMPLOYEES 579- 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, as amended, we hereby notify our employees that : WE WILL NOT in any 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 CASKET WORKERS. UNION, LocAL No. 166, UPHOLSTERERS INTERNATIONAL UNION OF NORTH AMERICA, or any other labor organization, to bargain col- lectively through representatives of their own choosing, to engage in concerted activities 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 rights may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment as authorized in Section 8 (a) (3) of the National Labor Relations Act. WE WILL OFFER Ordo Barrett, William F. Remer, and Anton Walker, immediate and full reinstatement to their former or sub- stantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. WE WILL BARGAIN collectively upon request with the above- named union as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment, or other conditions of employment. The. bargaining unit is : All production employees, except foremen, foreladies, office employees, chauffeurs, salesmen, and officials. All our employees are free to become, remain, or refrain from becoming or remaining members of the above-named union or any other labor organization, except to the extent that such right may be effected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized in Section 8 (a) (3) of the National Labor Relations Act. We will not discriminate in regard to hire or tenure of employment or any terms or conditions of 917572-51-vol. 91-38 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment against any employee because of membership in or ac- tivity on behalf of any such labor organization. CENTRAL METALLIC CASKET CO., Employer. Dated ------------------ By ----------------=------------------ (Representative) (Title) NOTE : Any of the above-named employees presently serving in the Armed Forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. 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 Morris Slavney, Esq., for the General Counsel. Mr. C. E. Hall, 1911 West Roosevelt Road, Chicago, Ill., and Mr. P. H. Rapp, 2333 Logan Blvd., Chicago, Ill., for the Respondent. Jacob M. Gross, Esq., 105 West Monroe St., Chicago, Ill., for the Union. STATEMENT OF THE CASE Upon a charge filed on February 16, 1949, by Casket Workers Union, Local Number 166, Upholsterers International Union of North America, herein called the Union, the General Counsel of the National Labor Relations Board, called herein respectively the General Counsel and the Board, by the Regional Direc- tor of the Thirteenth Region ('Chicago, Illinois), on October 26, 1949, issued a complaint against Central Metallic Casket Co., herein called the Respondent, al- leging that the Respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the Labor Management Relations Act, 1947, herein referred to as the Act. Copies of the complaint, the charge upon which it was based together with notice of hearing thereon, were duly served upon the Re- spondent and the Union. With respect to unfair labor practices, the complaint alleges in substance : (1) that on and after February 3, 1949, the Respondent during the pendency of negotiations with the Union, attempted to induce employees in an appropriate unit individually to agree to new wage rates without notice to or approval of the Union, and unilaterally instituted changes in the wage rates of the em- ployees in the unit, without notice to or approval of the Union thereby refusing to bargain collectively with the Union ; and (2) that on or about February 15, 1949, the Respondent discriminatorily discharged employees Ordo Barrett, Wil- liam Remer, and Anton Walker and has since refused to reinstate them because of their union membership and activities, particularly because they refused to execute individual contracts which the Respondent was unilaterally attempting to force upon them. The Respondent did not file a written answer. At the hearing, the Respond- ent's representative, under oath, orally admitted certain allegations of the CENTRAL METALLIC CASKET CO. 581 complaint but denied the commission of any unfair labor practices. The General Counsel stated that an answer in such form was acceptable to him. Pursuant to notice a hearing was held on December 13 and 14, 1949, at Mid- land Building, 176 West Adams Street, Chicago, Illinois, before W. Gerard Ryan, the undersigned Trial Examiner , duly designated by the Chief Trial Examiner. At the conclusion of The evidence, opportunity was afforded to the parties for oral argument. The General Counsel argued orally. The parties were also afforded an opportunity to file briefs, proposed findings of fact and conclusions of law. Briefs have been filed by the Respondent and the Union. On the entire record in the case, and from my observation of the witnesses, I make the following : FINDINGS OF FACT 1 I. THE BUSINESS OF THE RESPONDENT The Respondent is an Illinois corporation with its principal office and place of business in Chicago, Illinois, where it engages in the manufacture and sale of caskets. In the course and operation of its business the Respondent causes and has continually caused at all times mentioned herein, large quantities of raw materials used by it in the processing of its finished products to be pur- chased and transported in interstate commerce to its plant in Chicago, Illinois, from and through the States of the United States other than the State of Illinois. During he calendar year 1948, the value of the raw materials so purchased and transported exceeded $100,000, of which approximately 70 per- cent was shipped to the Respondent at Chicago from points outside the State of Illinois. In that same year the value of the finished products manufactured by the Respondent was in excess of $150,000 of which approximately 95 percent was shipped to points outside the State of Illinois. I find that the Respondent .has been and is engaged in interstate commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Casket Workers Union, Local Number 166, Upholsterers International Union of North America, American Federation of Labor, is a labor organization within the meaning of the Act admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain 1. The appropriate unit and representation by the Union of a majority therein At the hearing, the Respondent admitted in its answer to the complaint, and I find, that all production employees of the Respondent, except foremen, fore- ladies, office employees, chauffeurs , salesmen, and officials, constitute an appro- priate unit for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment , and for other conditions of employment within the meaning of Section 9 (b) of the Act. z In making the findings herein, r have considered and weighed the entire evidence. It would needlessly burden this report to set up all the testimony on disputed points. Such testimony or other evidence as is in conflict with the findings herein is not credited. 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent further admitted in its answer that at all times mentioned herein the Union has been and now is the duly designated representative of all, the employees of the Respondent in the aforesaid bargaining unit. I therefore, find that at all times mentioned herein, the Union was, and now is, the duly designated bargaining representative of all the employees in the appropriate bargaining unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 2. Background of events . From 1938 to 1944, the Respondent and the Union negotiated and entered into yearly contracts covering wages, hours, and other terms and conditions of employment of Respondent's employees. In 1944, an association of casket manufacturers in Chicago was formed, known as the Chicago Group of Casket Manufacturers, hereinafter referred to as the association, of which the Respond- ent was a member. Beginning in 1944, the Union bargained with the association for the members of the association and has since entered into yearly contracts with the association. On May 20, 1948, a contract was executed between the association and the Union which,by its terms was retroactive to February 1, 1948, and was to terminate on February 1, 1949. As a member of the association, the Respondent executed that contract which provided in part as follows : This agreement is effective as of the 1st day of February, 1948, and shall continue in full force and effect until the 1st day of February, 1949, unless either party shall give notice in writing to the other at least sixty (60) days before the expiration of the term of this agreement or any ex- tension thereof, of any intentions to change, modify, alter or amend any or all of the terms of this agreement, all of its terms and stipulations shall continue in full force and effect for an additional period of one (1) year from the date of the expiration of this agreement or any extension thereof --------------------- On November 28, 1948, in order to terminate the contract on February 1, 1949, the Union notified in writing all the casket manufacturers, including the Re- spohdent, that it desired to make certain changes in the contract and requested that a date be set for a conference. Negotiations for a new contract were held between the Union and the association on December 2, 23, 30, 1948, and February 18, March 2, and May 19, 1949. In addition, the Union and the Respondent con- ferred on December 9, 14, 16, 21, 1948, and January 10, and 24, 1949, concerning the Respondent's proposal for new rates of pay and a production schedule with a bonus plan which involved abolition of piecework pay and substitution of pay for day work, based on hourly rates. The Union opposed the Respondent's proposal. No agreement was reached at the meeting of January 24, 1949, between the Union and the Respondent! P Peter A. Rapp, vice president and general manager of the Respondent, testified that at the meeting held on or about January 24, 1949, the Union agreed to accept Respondent's proposals on new rates of pay and later withdrew its consent after the Respondent had inaugurated the new plan on February 14, 1949. In a letter dated March 5, 1949, to the Respondent, the Union protested that it did not nor had not agreed to any changes in the rates of pay. John Villwock's testimony that neither he nor the Union had agreed to accept the Respondent's new wage plan is credited. CENTRAL METALLIC CASKET CO. 583 3. The refusal to bargain and the discharges of Ordo S. Barrett, William F. Remer, and Anton Walker It has been stipulated in'the record that the Respondent's plant was shut down and a temporary layoff of its employees occurred from January 30 to February 10, 1949. During the shutdown and beginning with February 3, 1949, individual em- ployees were called into the Respondent's office and informed that their rate of pay was being changed from piecework to day work, based on hourly rates. At no time following the last meeting between the Respondent and the Union on or about January 24, 1949, did the Respondent negotiate or attempt to negotiate further with the Union. There is no evidence in the record that the Union and the Respondent had, on January 24, 1949, or thereafter, bargained in good faith to an impasse with respect to wages, so that.further negotiations would be futile. Indeed, the record shows, the contrary, namely, that the employees, including the union shop steward and union committeemen had agreed to work beginning February 14, 1949, to try the new wage proposal on a tentative basis, subject, however, to final approval by the Union. Then, during the pendency of negotia- tions for a new contract, the Respondent, on February 15, 1949, as the complaint alleged and the evidence proved, individually and unilaterally attempted to induce its employees to agree in. writing to new wage rates and discharged three employees for refusing to sign separate agreements. Its employees were indi- vidually notified that their pay would be computed on an hourly basis, effective February 14, 1949, and on that date the Respondent eliminated piecework rates and unilaterally instituted hourly rates in lieu of piecework rates. It is well settled that unilateral changes in wages in the midst of wage negotiations with the Union violate Section 8 (a) (5) of the Act a Ordo S. Barrett, panel and frame worker, was first employed by the Respond- ent in March 1934. He continued to work until July 1942, when war restric- tions prevented the making of metallic caskets and he was laid off. He returned to work for the Respondent in 1946 or 1947 and with the exception of 3 months continued thereafter to work for the Respondent until he was discharged on February 15, 1949. Barrett was union shop steward in his department and on the bargaining committee of the Union. The proof is adequate, and I find, that the Respondent knew that Barrett was a member of the Union. He attended all the meetings with the shop committee, the Respondent, and the Union. Barrett corroborated the testimony of John Villwock, business representative of the Union, that there was no agreement reached on the wage plan proposed by the Respondent. On February 4 or 5, 1949, Rapp asked Barrett to contact the em- ployees about his proposed new plan. On February 9, in response to a request from the Respondent, Barrett went to see Rapp, in Rapp's office. In addition to Rapp, those present were Superintendent Allaire, Foreman John Forke, and employee William F. Remer. Barrett testified that Rapp announced that he had a new plan and when Barrett asked Rapp if he did not think the business representative for the Union should be present, Rapp replied : "No, that isn't necessary, what the hell do we care about the union or anybody else? We are 3 N. L. R. B. v. Crompton -Highland Mills, 337 U. S. 217 ; Great Southern Trucking Co. V. N. L. R. B., 127 F. 2d 180 , certiorari denied 317 U. S. 652 ; Medo Photo Supply Corp. v. N. L. It. B., 321 U. S. 678; May Department Stores v. N . L. R. B., 326 U. S . 376; Tower Hosiery Mills, Inc., 81 NLRB 658. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interested in our own little shop, Central Metallic. We want to keep it in a nice little happy family." Rapp did not deny Barrett's testimony nor is it elsewhere contradicted in the record. Barrett testified that hours of discussion took place and as union steward of the shop he wanted to see what Rapp was offering; and that he was willing to try the plan subject to Union approval. Barrett returned to work on Friday, February 11, 1949, and also worked on Monday, February 14. On Monday, February 14, during the afternoon, the Respondent posted on the time clock in the plant a notice that piecework was abolished and new rates of pay were in effect. That same evening at 5 p. in. a special union meeting was held at which Rapp's plan was discussed and Villwock told the workers present that they could not accept nor sign any papers, pending approval from the inter- national union because the Union was then in negotiation for a new contract. On February 14, 1949, a letter from the Union was prepared and sent to the Respondent, which the Respondent admits receiving, in which the Union pointed out among other things that the Respondent's changes in rates per hour were in violation of the National Labor Relations Act and stated further that the Union was permitting its members to work "under duress" until such time as arbitration of the matter is concluded. The next day, February 15, employee Stanley Sowinski was asked by the Respondent's superintendent, Allaire, to sign the following which was dated February 14, 1949, and provided : I, the undersigned, hereby agree that beginning today, February 14, 1949, my hourly rate of pay will be $- per hour. Working hours are from 8 a. in. to 4:30 p. in. with one-half hour for lunch. Time and one-half will be paid for all work performed before 8 a. in. and after 4: 30 p. m. also, for all work performed over forty hours per week. Sowinski pointed out to Allaire that no wage. rate was contained on the paper and then Allaire wrote in the rate. Allaire asked him to read it and inquired if he would sign it. Sowinski replied, "Well, as far as the union says not to sign that, could I go up and get the steward down and see what he has to say about it? I would like to talk to him." Allaire replied, "0. K. Go up and get him, when he comes down here he is going to sign it too, otherwise he is going to be fired if he doesn't." Sowinski then went and told Barrett he was wanted in Allaire's office. Upon his arrival, Allaire asked Barrett what he thought of the new plan. Barrett replied, "If it's O. K. with the union, it's O. K. by me." Allaire then handed Barrett a paper similar to the one Sowinski had been requested to sign. A lengthy conversation followed between Barrett and Allaire during which Barrett, as the union steward, pointed out to Allaire that according to the union contract he could not sign a special contract ; that the Union was their sole bargaining agent and if there were any contracts to be signed Allaire should have Rapp sign the contract that was in negotiation now, or else call the union representative in on this. Allaire replied, "We don't need the union representative." Then three times in succession Allaire asked Barrett if he was going to sign it and when Barrett refused for the third time, Allaire told him, "Well, you are all through, Barret .. , you are fired. You are canned. You can get out." After Barrett was discharged, Remer and Walker were immediately summoned to Allaire's office, and were also discharged in like manner when they refused to sign the statement' When Walker pro- * Remer and Walker were union members and committeemen of which Respondent had full knowledge. CENTRAL METALLIC CASKET Co. 585 tested that his bargaining agent is the Union and "nobody else," Allaire replied, "You are fired.. If you don't sign this thing you are not a loyal employee and you are fired." The testimony of Barrett, Reiner, and Walker is corroborated by the testimony of Sowinski. Further corroboration that they were fired be- cause they would not'sign, and not discharged for cause is the testimony of em- ployee Walter Pasinski that when he refused to sign, Allaire informed him that Barrett and Reiner had been fired for refusing to sign the paper. As its defense, the Respondent offered the testimony of its vice president and general manager, Peter H. Rapp. The Respondent did not cross-examine either Barrett, Reiner, or Walker and their testimony stands uncontradicted. Neither did the Respondent call Allaire nor any witness who might have given direct testimony to support the defense. Rapp testified that Barrett, Reiner, and Walker had been discharged for cause and that he had instructed the superin- tendent to discharge them because .of reports reaching him that they had "dis- turbed other fellows, workers around them ; made their objections known all over the shop; probably tried to rally somebody around their cause." Rapp further testified that the paper which Barrett, Reiner, and Walker had been asked to sign was not an agreement or contract but an "acknowledgement" of their pay rates which the Respondent requested for its auditing department ; that Rapp had already given orders to the superintendent to discharge them before they were asked to sign the "acknowledgment" and they would have been discharged whether they had signed the paper or not. Rapp further testi- fied that he had suggested to the auditing department that when they were go- ing to get the "acknowledgements" it have a representative of the shop committee present and that is; why Sowinski (who was a union shop committeeman) was there "who represented the employees." Barrett, Reiner, and Walker all denied Rapp's accusations and each affirma- tively testified that they had not left their work and their production on the day complained of was the same as other days. The Respondent failed to pro- duce any production records. Rapp's testimony that Barrett, Reiner, and Walker would have been discharged, even if they had signed the "acknowledge- ments" is incredible and therefore rejected by me. The Respondent in its brief further urges that it is now and has been a member of the association above referred to, Chicago Group of Casket Manufacturers, and as such is bound by the present contract between the association and the Union, dated September 30, 1949, even though the Respondent did not sign it. It fur- ther states in its brief that no wage rates other than minimum hiring rates are included in the contract and that. Respondent does not now nor has it ever had uniform wage rates for work classifications ; that these rates in the past and now are bargained for separately by individual members of the association because there are variances in plant operations of similar classifications of work. This however, I find to be insufficient to explain the Respondent's unilateral dealing with its employees to the exclusion of the Union. To advance that the Respon- dent like other members of the association, may bargain separately with the Union for uniform wage rates in its own plant, falls far short of justifying the Respondent's actions in dealing directly with its individual employees. The substance of Respondent's defense seems to be: (1) that the Union had agreed to the new wage plan and then after it had been put into effect on February 14, 1949, rescinded its approval; (2) that although it did not and has not signed .586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the agreement extending the 1948 contract it still is a party thereto and is bound by its terms since the agreement was executed by the association in which the Respondent is a member; (3) that the Respondent was acting under the provi- sions of the 1948 contract when it tried to obtain an "acknowledgement" for changed pay rates which provide for adjustment of the trouble, first, between the steward, employee, and the foreman ; second, between the steward, shop committee, and the superintendent 6 With respect to (1), supra, I have already found to the contrary, namely, that the Union did not consent to the Respondent's proposal concerning new wage rates. With respect to (2), supra, it appears to me to be unnecessary to find whether or not the Respondent is a party to the extension agreement. The acts com- plained of are violative of the Act without regard to whether the Respondent was a party to the extension agreement. Reduced to simplest terms, the facts are and I so find, that the Respondent discharged three employees all of whom were most active in the Union and whose activities were fully known to the Respondent because they refused to sign separate individual contracts with it and refused to bargain with the Union concerning its unilateral action. The record clearly -shows antiunion animus on Respondent's part and an intransigent attitude that its changed wage rates would be agreed to separately by individual employees under penalty of discharge. With respect to (3), supra, even under the terms of the 1948 contract, the Respondent would not be entitled to arbitration because the "dispute" pro- ceeded no further than subdivisions 1 and 2 of Section 2, Article 24. The dis- -charged employees invoked subdivisions 3 and 4 when they sought to bring in the union representative and the Union. They were discharged for their temerity.' It Is further unnecessary in my opinion to make any finding upon the collateral Issue as to whether the Respondent withdrew from the associa- tion. The proof submitted by General Counsel does not depend upon whether or not the Respondent was a member of the association. If it continued to be a member, the fact that the association bargained with the Union to the extent of -obtaining an extension of the 1948 contract during the summer of 1949 can not immunize the Respondent for its refusal to bargain with the Union insofar as the acts complained of in the month of February 1949 are concerned. If the The pertinent part of the 1948 contract, Article 24 provides : ARTICLE 24. GRIEVANCE MACHINERY. Section 1. * * * Section 2. In the event of a disagreement arising during the life of this contract as to interpretation of the same, the employees shall continue to work pending an adjust- ment of the trouble in the following manner: 1. Between the Steward, Employee and the Foreman. 2. Between the Steward, Shop Committee and the Superintendent. 3. Between the Union Representative, Shop Committee and Management. 4. Between the Union Committee and the Management Committee. (Then follows provision for arbitration in the event the matter cannot be adjusted satisfactorily as set forth above.) There is a suggestion in the record that the 1948 contract was extended for 30 days from February 1, 1949. No testimony was had concerning it and the matter was not litigated at the hearing. Even if the 1948 contract had been extended during February 1949, there is no proof in the record that the Respondent had complied with the provisions of Section 8 (d) of the Act before the effective date of the modifications in the manner, amounts, and manner of payment. In the fact of noncompliance, such modification effec- tuated by the Respondent would be directly violative of Section 8 (d) of the Act. CENTRAL METALLIC CASKET CO. 587 Respondent was not a member of the association such circumstance does not operate as a privilege to refuse to bargain with the Union with respect to its actions complained of in February 1949. Conclusions The preponderance of the evidence in this record overwhelmingly proves that the Respondent attempted to bargain individually in respect to wages with its employees in a unit appropriate for collective bargaining and refused to bargain collectively with the duly designated bargaining representative of all the employees in the unit ; that it established unilateral changes in wage rates without bargaining with the Union ; and that it discharged Barrett, Remer, and Walker for the sole reason that they refused to sign individual agreements as to their wages with the Respondent. There. can be no doubt that the paper which the employees refused to sign was a new agreement with respect to their wages, for a mere reading of the instrument shows it to be on its face an agree- ment concerning wages, hours, and working conditions, and not an "acknowledg- ment" such as an auditor would require. The Respondent admitted receiving notice from the Union in a letter dated February 14, 1949, that it protested the proposed changes and would permit its members to work "under duress." Not- withstanding that notice, the Respondent demanded the execution of the in- dividual contracts and discharged summarily Barrett, Remer, and Walker when they refused to sign them, thereby discouraging membership in the Union. I fail to see how the execution later of an extension agreement on September 30, .1949, between the association and the Union, to which agreement the Respondent claims to be bound, can be any defense to the Respondent's conduct in the month of February 1949, when it dealt, not with the Union, but individually with its employees to the derogation of the Union. Upon all the evidence, I find that in violation of Section 8 (a) (1) and (3) of the Act, the Respondent, by discharging Barrett, Remer, and Walker, and refusing them reinstatement to their jobs on February 15, 1949, discriminated with respect to their hire and tenure of employment, thereby discouraging membership in the Union, and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. I further find that on or about February 3, 1949, and at all times thereafter, the Respondent in violation of Section 8 (a) (5) of the Act refused to bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit, and by such conduct interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF TIIE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in the unfair labor practices set forth above, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. .588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I find that by merely ordering the Respondent to cease and desist from the unfair labor practices found above would not effectuate the policies of the Act -unless the Respondent is also ordered to restore the status quo. To permit the abolition of piecework and permit the bonus plan and new rates of pay to remain in effect would enable the Respondent to retain the fruits of its unfair labor practices and thereby give it an advantage at the bargaining table. I shall .therefore recommend that the Respondent revoke its new wage and bonus plan and revert to the method and manner of paying its employees in effect on February .11, 1949. Having found that the Respondent discriminated against Ordo S. Barrett, William F. Remer, and Anton Walker in regard to their hire and tenure of employment, thereby discouraging membership in the Union by discharging them and refusing them reinstatement to their jobs on February 15, 1949, I shall accord- ingly recommend that the Respondent offer to Ordo S. Barrett immediate and full reinstatement to his former job as panel and frame maker or a substantially -equivalent position ; to William F. Itemer immediate and full reinstatement to his former job as body maker and assembler or a substantially equivalent position ; to Anton Walker immediate and full reinstatement to his former job as rubber and polisher or a substantially equivalent position, without prejudice to their seniority or other rights and privileges, and that the Respondent also make each -of them whole for any loss of earnings suffered by them by reason of the Respondent's discrimination against them by payment respectively to each of them of a sum of money equal to that which each of them would normally have -earned as wages in their respective jobs from-the date of the discrimination .against them, February 15, 1949, to the date of the offer of reinstatement, less the .net earnings of each during that period.' Upon the foregoing findings of fact and upon the entire record in the case, .I make the following : CONCLUSIONS OF LAW 1. Casket Workers Union, Local Number 166, Upholsterers International Union of North America is a labor organization within the meaning of Section 2 (5) of the Act. 2. All production employees of the Respondent, except foremen, foreladies, office employees, chauffeurs, salesmen, and officials constitute a unit appropriate for collective bargaining within the meaning of Section 9 (b) of the Act. 3. Casket Workers Union, Local Number 166, Upholsterers International Union of North America, was on or about February 1, 1948, and at all times thereafter has been, the exclusive representative of all the employees in such unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By attempting to induce its employees to enter into separate agreements with respect to wages, hours, and other terms and conditions of employment, the Respondent has refused to bargain collectively with said Union in violation of Section 8 (a) (5) of the Act. 5. By discriminating in regard to the hire and tenure of employment of Ordo S. Barrett, William F. Remer, and Anton Walker, and thereby discouraging membership in Casket Workers Union, Local Number 166, Upholsterers Interna- tional Union of North America, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 7 Crossett Lumber Co., 8 NLRB 440, 497-498. CENTRAL METALLIC CASKET CO. 589 6. By said acts, the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act and has thereby engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) of the Act. [Recommended Order omitted from publication in this volume.]