Larrance Tank Corp.

352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Green, Jean Whatley, all other office and clerical employees, and supervisors, constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9 (c) of the Act. [Text of Direction of Election omitted from publication in,this volume.] LARRANCE TANK CORPORATION and INTERNATIONAL BROTH ERHOOD OF BOILERMAKERS , IRON SHIP BUILDERS AND HELPERS OF AMERICA, LOCAL 592; AFL. Cases Nos. 16-CA441 and 16-CA-26/.. May 9, 1951 Decision and Order On December 29, 1950, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above -entitled proceeding , finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action , as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Re- spondent filed exceptions to the Intermediate Report and a supporting brief. The Board 1 has reviewed the rulings of the Trial Examiner and finds that 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, finding merit in the Respondent's exceptions, hereby adopts only such of the Trial Examiner's findings and conclusions as are consistent with this Decision and Order. On'February 21 and March 29, 1950, respectively , as found by the Trial=Examiner , the Union filed charges and amended charges in Case No. 16-CA-241 alleging , inter alia , that the Respondent had refused to bargain in violation of Section 8 (a) (5) and (1) of the Act. On April 7, 1950 , the Respondent and the Union executed a settlement agreement with respect to the charges in that case. The settlement agreement required the Respondent to post notices for 60 days stating that it would not interfere with, restrain , or coerce its employees in the exercise of their rights under the Act, and that it would bargain collectively with the Union . The record establishes that the Respond- ent posted such notices for the required period, and that the Regional Director was advised that the notices had been posted . The Trial Examiner in the instant case relies on conduct of the Respondent '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 [ illembers Houston, Reynolds, and Styles]. 94 NLRB No 71 LARRANCE TANK CORPORATION 353 occurring prior to the execution of the settlement agreement as evi- dence of unfair labor practices. It is the Board's established practice not to consider as evidence of unfair labor practices conduct of a Respondent antedating a settlement agreement, unless the Respondent has failed to comply with the settle- ment agreement or has engaged in independent unfair labor practices since the settlement.2 Moreover, in determining whether such inde- pendent unfair labor practices have occurred after the settlement, the Board will not appraise a Respondent's post-settlement conduct in the light of its conduct prior to the settlement. No reasons appear why we should not follow that policy here.3 In the instant case, however, in finding that the Respondent did not bargain in good faith after the settlement, the Trial Examiner took the view that the Respondent's conduct after April 7, 1950, was of the "same type" as its prior conduct, and part of the "same scheme or plan." It is clear, therefore, that the Trial Examiner's evaluation of the Re- spondent's post-settlement conduct was colored by its presettlement conduct. This approach is, as already indicated, inconsistent with the Board's policy. And when, in accord with this policy, we exclude from consideration the Respondent's presettlement conduct, we find that the General Counsel has failed to establish by a preponderance of the evidence that any violations of the Act occurred after April 7, 1950. The only evidence of such alleged post-settlement violations consisted of the remarks of Larrance, the Respondent's president, concerning (1) the meaning of the settlement agreement, (2) the field construction rates, (3) the Union's request for an equalization of the wage increases granted on February 1, 1950, and (4) paid holidays. Such remarks, considered apart from the Respondent's presettlement conduct, do not in our opinion establish that the Respondent failed to bargain in good faith after April 7, 1950. The remarks concerning the meaning of the settlement agreement were made during a discussion of the Respond- ent's refusal to agree to the Union's union-security proposals. In this context, such remarks evidence no more than the Respondent's assertion of its right not to agree to the Union's proposals. Moreover, as found by the Trial Examiner, the Respondent later made a counterproposal of a maintenance-of-membership provision and there is no basis for concluding that the Respondent refused to bargain in good faith on the union-security question. The remarks concerning the field construe- 2 Rice-Stix of Arkansas , Inc, 79 NLRB 1333. ' In finding that the settlement agreement did not bar consideration of the Respondent's presettlement conduct, the Trial Examiner relied in part on the failure of the record to reveal that the Regional Director was satisfied that the Respondent had complied with the provisions of the settlement agreement. As noted above, the record affirmatively shows that the Respondent posted the notices called for by the settlement agreement for the required period The Regional Director, however , presumably was of the belief that the Respondent's conduct after the settlement constituted a violation of its terms so as to entitle the Board to go behind it, and therefore issued a complaint to test the very issue which is now before us. 953341-52-vol 94-24 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lion rates, the Union's request for an equalization of the February 1 wage increases, and paid holidays demonstrate, on this record, no more than the Respondent's opposition to any contract changes which would increase its costs. The Trial Examiner also considered, in evaluating the Respondent's good faith, the fact that the Respondent unilaterally granted several bonuses during 1950. However, the question whether the Respondent failed to bargain in good faith by granting such bonuses was not liti- gated at the hearing; in fact the General Counsel affirmatively stated at the hearing, and does not now contend to the contrary, that the granting of such bonuses was not being urged as a per se violation of the Act. Under these circumstances, we do not agree with the Trial Examiner that the fact that such bonuses were granted may properly be considered in evaluating the Respondent's good faith. We have found that the Respondent did not engage in any inde- pendent unfair labor practices after the execution of the settlement agreement. Accordingly, we shall not consider as evidence of unfair labor practices any conduct of the Respondent which antedated that agreement. We shall, therefore, dismiss the complaint in its entirety. Order IT IS HEREBY ORDERED that the complaint herein be, and it hereby is, dismissed. Intermediate Report and Recommended Order Evert P. Rhea, Esq., for the General Counsel. Warren F. Chrisman, Esq., and T. D. Nicklas, Esq., of Bledsoe ,& Nicklas, of Lawton, Okla., for the Respondent. Mr. Charles J. Trepagnijer and Mr. Clarence C. Rehl, of Houston, Tex., for the Union. STATEMENT OF THE CASE These proceedings involve allegations that Larrance Tank Corporation , herein called Respondent , refused to bargain ( 8 (a) (5)) and interfered with, re- strained , and coerced its employees in the exercise of their rights guaranteed under the National Labor Relations Act, as amended , herein called the Act (8 (a) (1) ). After issuance of a complaint and filing of an answer a hearing in the above matter was conducted on October 10, 11, 12, and 13, 1950, at Lawton, Oklahoma, before the undersigned Trial Examiner . The General Counsel of the National Labor Relations Board' and Respondent were represented by counsel and the Union by its officials, and the parties participated fully therein. The evidence reveals ( 1) that Respondent is engaged in commerce within the meaning of the Act,' (2) that International Brotherhood of Boilermakers, Iron Ship Builders and Helpers of America, Local 592, AFL, herein called the Union, is a labor organization within the meaning of the Act, (3) that the unit appro- 1 References hereinafter to the General Counsel are to his representative at the hearing. 2 Respondent operates a place of business in Lawton , Oklahoma , where it manufactures and sells metal tanks. In the course of its business Respondent 's purchases approximate $200,000, of which 6a to 70 percent represents materials received from outside Oklahoma. Respondent 's sales exceed $462,000 and 6 percent thereof represents deliveries to points and places outside Oklahoma. LARRANCE TANK CORPORATION 355 priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act consists of all production and maintenance employees employed at Respondent's Lawton, Oklahoma, plant, exclusive of all clerical employees, janitors, watchmen, and supervisory employees, and (4) that the Union repre- sents for the purposes of collective bargaining a majority of the employees in the aforesaid unit. There is no dispute concerning these matters. The disputed matters concern (1) Respondent's good- or bad-faith bargaining, (2) the alleged interference, restraint, and coercion, which Respondent denies, and (3) the effect of a settlement agreement executed by the parties and of the 6-month limitation of the Act. These matters are developed herein by first outlining the facts and then discussing the issues involved.' _ Sequence of Events On September 29, 1948, the Union was certified as the exclusive representative of Respondent's production and maintenance employees.' Thereafter Respond- ent and the Union executed a contract (herein called the 1948 Agreement), effective October 22, 1948, and to remain "in full force and effect until October 22, 1949 " On September 27, 1949, an election pursuant to Section 9 (e) (1) of the Act was conducted and on October as 1949, the Regional Director for the Sixteenth Region of the National Labor Relations Board certified that a majority of employees eligible to vote had authorized the Union to make an agreement re- quiring membership in the Union as a condition of employment, in conformity with Section 8 (a) (3) of the Act` On September 28, 1949, R. P. Duncan, Sr. (shop representative for the Union), and Fred Larrance, Sr. (president of Respondent), conferred a concerning changes in the 1948 Agreement which the Union desired before signing a new agreement. At this meeting Respondent was given a handwritten document outlining the Union's proposals (Appendix A) which Respondent was to study. The primary purpose of this meeting was to apprise Respondent of the Union's desires and extensive bargaining discussions did not ensue. Nevertheless Respondent did indicate generally its position with respect to the union proposals. Concerning the union proposal of a "union shop clause" Larrance said "he never had signed a union shop clause and he would not," and that "he wouldn't discriminate against any man in his shop whether it [he]_ belonged to the union or not." Concerning the union proposal regarding compensation for work on Saturdays and for holiday pay,7 Larrance stated the 1948 "agreement was a fair agreement to all parties concerned." 8 8 The findings of fact are based upon my consideration of the entire record and my observation of witnesses. All evidence on disputed points is not described so as not to burden unnecessarily this Report However, all has been considered and where required resolved Such testimony or other evidence as is in conflict with the findings herein is not credited. See 16-RC-163. There is a conflict as to the actual count but it does not appear necessary to resolve this conflict. 8 There is a conflict as to whether the union committee was also present. However, a resolution of this conflict is not required. 7 Union proposal reads : "Amend Article 4. Clarify and rewrite if necessary. Satur- day is not written in the article. Six paid holidays ; straight time if not worked and double time if worked." 8 The 1948 Agreement did not in precise language state the rate of compensation for work on Saturday'and provided for time and a half for work performed on Sunday, New Years Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, and Christmas. 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Concerning the union proposal of a probationary period for new employees of 30 instead of 90 days Larrance stated he couldn't agree to that, "it would take 90 days to see whether he wanted to keep that man or not"-to try him in various departments of the shop. The 1948 Agreement provided for a three-step grievance procedure (to the foreman, to the plant superintendent, and finally to the president of the Com- pany ) and stated , "The President of the Company shall render his decision in writing within a period of ten days " The Union proposed that the time for the decision of the president of the Company be reduced to 3 days and that a fourth step, arbitration, be added to the grievance procedure. Concerning the time for his decision Larrance said "he couldn 't agree. He said he might be out of town and he would need those ten days to write the letter." Duncan asked Larrance at that time if a representative was left in charge couldn't he do it, and Larrance said he (Larrance) attended "to those matters." Concerning arbitration Larrance said "he didn't like for other men to come into his business, he thought he was capable of handling everything." Larrance indicated he was not averse to certain nonsubstantial changes of language of the article of the 1948 Agreement dealing with paid vacations but indicated he (Larrance) thought the Union was requesting "entirely too much time" in its request for substitution of sixty ( 60) for fifteen ( 15) in the following sentence: An employee shall not be considered in continuous service if he is absent more than fifteen (15) work days in any calendar year without permission from the plant superintendent or management. Larrance "kind of laughed" at the suggestion that employees be paid at the rate of time and a half for work in lieu of vacation. In its proposals the Union requested that the next contract contain a clause that it was effective from "year to year thereafter" instead of for 1 year or to a specified date. Larrance said "he didn't deal in future§"and only was signing a one-year contract." Concerning the union proposal of a seniority list with rates of wages each month, Larrance commented he "didn't think it was necessary." Concerning the union request for a wage increase of 15 cents per hour, Lar- rance "made some discussion on how did we expect him to give a raise when his production cost had gone up nearly double in the past year." On September 28, 1949, Larrance stated he "couldn't tell much about this handwriting" (list of union proposals) and it was agreed that the Union would submit a more detailed statement. Such a statement was' submitted and dis- cussed at the next meeting on October 17, 1949.'0 At the October 17, 1949, meeting, Duncan presented Larrance with a detailed statement of the Union's proposals (Appendix B) and discussion of these proposals ensued. One of the union proposals was that: All employees of the company covered by this agreement shall be members of the Union and in good standing, or shall become members in thirty (30) days of employment. "The record reflects that Larrance , Sr , is president , general manager , directing power, and guiding light of Respondent , that lie establishes policies and decides problems of management-that the Company is his "life " '0 The record also reflects that a typewritten copy of the longhand document left with L.arrance on September 28 was mailed to him after the September meeting LARRANCE TANK CORPORATION 357 In any case all new employees shall be subject to acceptance of the company. All new employees will be allowed thirty (30) days in which to qualify. During this thirty (30) days' qualifying period the company may discharge for any reason, but no employee shall be discharged by reason of his union activities as long as such activities do not interfere with his work. Em- ployees who continue in the employment of the company for thirty (30) days shall thereupon be credited with seniority as of the effective date of his hire. Larrance indicated that the above union-security clause was not satisfactory, that he had never signed an agreement with such a clause, and that he was opposed to it because he "wouldn't discriminate against any employee in his shop." Larrance stated at this and the other meetings where this clause was discussed that he didn't believe that he "should cause any employee working for me to join any union, church, or any other organization to earn a living." Larrance objected to the proposed reduction of the probationary period (from 90 to 30 days) stating that "thirty days wasn't long enough for a man to get broke in and know his way around in our shop, and to prove to the shop superintendent or myself that he was capable of doing any class of work that we put him on." Larrance "tried to maintain the ninety day clause." The Union proposed : Time and one half rate shall apply on all work performed on Saturday and Sunday. Work performed on the following holidays : New Years Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, and Christ- mas, shall be paid at the rate of double time, if not worked shall be paid at straight time. Should any of the above mentioned holidays fall on Sunday then the day observed by the state or nation shall be considered as the holiday. Premimum payments shall not be duplicated for the same hours worked, and to the extent that hours are compensated for at premium under one provision ; they shall not be counted as hours worked in deter- mining premium pay under the other provision.' Duncan testified Larrance said "No" to this proposal but that he might have said "he would take it under advisement for study." The record as a whole indicates that there was considerable discussion of this proposal and that probably Larrance did request time to consider the matter further and the undersigned so finds. At the October 17 meeting the Union renewed its request for a reduction from 10 to 3 days for the time in which the president of the Company must render his decision with respect to grievances. Larrance again stated his opposition to such a reduction stating that he attended to that "kind of a business" and that 3 days was not sufficient time as he might be away "from the office from ten days to two weeks." In its proposals of October 17 the Union again suggested arbitration as a fourth step in the grievance procedure and suggested a panel of three arbiters-the third to be selected by the first two (one by the Company and one by the Union) and if the first two could not agree then the U. S. Conciliation Service "shall appoint the third arbitrator." Larrance again stated he was opposed to this provision "The 1948 Agreement provided for time and a half for work in excess of 8 hours in any 1 day and 40 hours in any 1 week and fixed Monday through Friday as the regular workweek. It also provided for time and a half for work performed on Sunday and the above-named holidays. It did not provide for holiday pay unless work was performed. 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because he "didn't think they should bring too many people that are unconcerned." Further discussion was to be held concerning this proposal.12 Concerning the union proposal of 60 instead of 15 days' absence as necessary to constitute a break in continuous service, Larrance said, "No, the days to 60 was no." Concerning the Union's request for time and a half for vacation time worked, Larrance indicated that costs had nearly doubled in the past year and that this proposal was not agreeable because of the high costs. Larrance again opposed the request that the contract "run year to year" automatically, stating again that he "didn't deal in futures." It appears, how- ever, that he explained that his opposition was because of the uncertainty of future business. The Union renewed its requests for wage increases asking for $2.25 per hour for mechanics and $2 per hour for helpers when engaged in "field construction" work and for a general increase in pay for all employees of 15 cents per hour. Concerning "field construction" work, Larrance stated he "didn't do much field construction work, if practically any . . ." and did not say whether he agreed with the union proposal. Larrance voiced opposition to the request for a 15-cent per hour increase again asking how he could be expected "to give a raise when his production cost had nearly doubled in the past year." Throughout this and the other negotiating meetings, Larrance indicated he was satisfied with the 19913 Agreement and that he would agree to renewing it. At the conclusion of the meeting Larrance agreed to take the union proposals and study them with his attorney. Thereafter, Larrance conferred with an attorney in Oklahoma City. There is a conflict in the record as to whether or not there was a bargaining conference held on October 27, 1949 The undersigned believes and finds that the preponderance of evidence establishes that such a conference was held on or about that date. At this meeting the proposals of the Union submitted on October 17 (Appendix B) were again discussed. Larrance reiterated his posi- tion concerning (1) union shop and his objection to requiring any man to join a church, club, or union of any kind; (2) a reduction from 10 to 3 days as the time within which the president of the Company must render his decision con- cerning grievances stating the time was too short-he might be_ away or taken up with business where he couldn't get there in 3 days; (3) arbitration, and again stated he "felt they was qualified to handle the affairs" ; (4) the proposal of 60 instead of 15 days' absence as necessary to constitute a break in service; (5) an automatic renewal clause, stating he desired to have-the contract termi- nate each year; (6) field construction work, and inquired whether the rate re- quested applied to "imperfect work that left the shop which he had to assign men at a later date outside the shop to correct"; and (7) a wage increase of 15 cents per hour, and he added that "his wages were as high as his competi- tors."" Sick leave and paid holidays were also discussed and Larrance stated "his costs were so high now that he couldn't give any increase whatever, "At one of the meetings Larrance stated he would accept an arbitration clause if a judge were substituted in place of a U. S. Conciliator. It is not clear whether this suggestion was made on October 17 or later. The undersigned believes it was made at a later meeting 13 In his brief the General Counsel states that at this meeting the Company refused a request for a copy of the current payroll. The record reflects that a payroll list was requested but that this request had no bearing "to the Agreement" and was "not a part of the negotiation" and that the Respondent didn't answer such request one way or the other except that it was not furnished. As hereinafter noted at a later date a payroll list was supplied upon request. LARRANCE TANK CORPORATION 359 [and] sick leave and paid holidays could be considered increases." The pro- posal that the probationary period be reduced from 90 to 30 days was again discussed and Larrance again voiced his objections to such a reduction and indi- cated that he thought the period should be longer, not shorter. The record also reflects that Larrance suggested a probationary period of 6 months. Rehl's testimony to this effect is corroborated by Respondent's written proposals, here- inafter discussed, and is credited. There is considerable discussion concerning the Union's request for time and- a half for work performed on Saturday and Larrance indicated he was amenable to the applicable paragraph of the 1948 Agreement but was opposed to the pro- posed revision. Certain nonsubstantial language and spelling revisions were discussed. Some were agreed upon, some were taken under consideration by Larrance, and one- a request to revise a phrase to provide for 64 hours with pay instead of 64 hours' straight-time pay vacation-was rejected by Larrance. The October 27 meeting was concluded with an agreement that another meet- ing would be held November 1, 1949. Prior to the November 1, 1949, meeting the Union requested that Respondent present for consideration a complete proposal. On November 1, 1949, a pro- posed contract was submitted and discussed along with the Union's proposals of October 17 (Appendix B). This proposed agreement contains the same pro- visions as the 1948 Agreement except that article 10, dealing with vacations, contains minor revisions indicating that length of service for vacation purposes shall be computed from October 22, 1948, and other clarifying language; and article 7, dealing with the probationary period for new employees, establishes a 6-month (1948 Agreement provided for 3 months) probationary period, and except for two new clauses. One of the new clauses states : Article 5-B -Employees covered by this contact when used on outside construction work shall receive the same compensation as if they were working in the shop, except that the company will pay all reasonable trans- portation and living expenses actually incurred in doing such work. Any such work shall not cause employees to earn less than eight (8) hours pay in any one day. The other new clause states : Article 15.-The right of management to grant merit increases is hereby recognized by all parties. No merit increase to be granted without first discussing it with the Union. The Union objected to article 2 of the company proposal," noted that it was the same as article 2 of the 1948 Agreement, and contended that the new contract should reflect the wishes of the employees as expressed at the election on Septem- ber 27, 1949 (U. A. election). The Union again sought its proposed union-shop clause. Larrance repeated his position that he would not compel his employees to join any church, club, or union and that he would never sign an agreement with the union-shop clause in it. The Union protested the absence of a clause specifying the rate of pay for work performed on Saturday and again sought its proposal of October 17 (see Appendix B). Larrance stated the provisions of the 1948 Agreement, which are the same as those in Respondent's proposed agreement, were clear to him and that he wouldn't "pay time and a half on Saturday." ' "Article 2.-No discrimination shall be made against any employee on account of membership or non-membership in any church, society, political party, fraternity or union." 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' The Union objected to article 5-B (set forth above) and again sought "field construction" rates (see Appendix B). It was noted that Respondent's pro- posal was, in effect, the same as-the 1948 Agreement except that it specifically eliminated "field construction" rates. Larrance again voiced his objection to such rates claiming that most of his outside work (work away from the shop) was corrective-to correct work leaving the shop not in perfect condition. The Union contended that a 6-month probationary period was unreasonable and too long and again sought a 30-day period. Larrance reiterated his objec- tions to a shorter period and stated he would like to have 6 months to test "qualifications." The record also reveals that a discussion ensued concerning the clause that "one hired after a break in service" shall be on a temporary basis. However, the record only reveals that the Union objected to this and that Larrance stated the clause expressed what "had been their usual policy, and they [he] wanted to continue that way." The Union noted the absence from Respondent's proposed agreement of a clause covering arbitration and again sought such a clause and as grounds therefor discussed the handling of a prior grievance. Larrance again stated that "he was qualified to handle his own business, and didn't see any reason why anybody else had to be in there to help us settle it." The Union renewed its request that the time within which the president of the Company should render his decision concerning grievances be reduced from 10 to 3 days. Larrance repeated his assertion that he might be away from the shop and that 3 days did not give him enough time. The Union objected to the new clause concerning merit increases (see above) and stated that merit, task, and bonus systems were generally unsatisfactory in operation, were contrary to union policy, and that the clause as written did not provide for union agreement prior to granting of such increases but only provided for discussion of such increases. Larrance favored a merit system as a reward for better quality work and stated that he wanted the right to merit individuals that he thought "worthy of meriting." The Union objected to the termination clause of Respondent's proposed agree- ment and again sought an automatic renewal clause "so that we wouldn't have to be back down here every hear [year] if it wasn't the request of the employees." Larrance stated he would not sign a contract that would continue itself year to year, that he wanted a contract that would terminate at the end of each year, and that he "wasn't bargaining in the future." The union proposal of 60 days' unexcused absence (instead of 15 days) to constitute a break in continuous service was again discussed and Larrance renewed his protest that 60 days was too long. At the meeting on November 1, 1949, Respondent requested that the Union present a proposed agreement. Such an agreement was prepared and discussed at the next meeting of the parties on November 22, 1949. This proposed agree- ment is the 1948 Agreement altered as follows : 1. In lieu of the provision stating "no discrimination shall be made against any employee on account of membership or non-membership in any church, society, political party, fraternity or union" (article 2) the Union proposed an article entitled "Union Security" and providing as follows : The Union has been authorized under provisions of the Labor-Management Relations Act of 1947 to make an agreement with the Company requiring membership in the Union as a condition of employment. It is agreed, there- fore, as a condition of employment, all production and maintenance employ- ees as of the date of the signing of this agreement shall be members of the LARRANCE TANK CORPORATION 361 Union and remain members in good standing with the Union during the life of this Agreement. All new employees shall become members of the Union within thirty (30) days of the date of employment and remain members in good standing with the Union during the life of this agreement. 2. The Union proposed an increase in the minimum wage rate. 3. The union proposal adds Saturday as a day when time and a half rates should be paid for work performed.16 4. The Union proposed a new clause entitled "Outside Work" and reading as follows : Article 5B.-Employees covered by this Agreement when used on outside work shall receive the established outside wage rate, i. e. $2.25 per hour for Mechanics and $2 00 per hour for Helpers. And in addition, the company will pay all reasonable transportation and living expenses actually incurred in doing such work. Any such work shall not cause the employee to earn less than eight (8) hours pay in any one day. The wage rates stated above shall not apply in any case where manage- ment is compelled to use employees away from the plant to rectify work of an imperfect nature which had first been performed in the plant. 5.- The Union proposed a 30-day probationary period (instead of the 3-month period established in the 1948 Agreement) for new employees or "one hired after a break in continuous service." 6. The union proposal does not contain the following sentence : When it becomes necessary for the Company to temporarily transfer em- ployees, the Company shall have the right to select them upon their ability and fitness to perform the work. 7. The union proposal provides that the president of the Company shall render his decision concerning grievances "within a period of five (5) dayss16 (instead of 10 days as provided for in the 1948 Agreement) and adds arbitra- tion as a fourth step in the grievance procedure. 8. The union proposal does not contain the provision of the 1948 Agreement which provided for bulletin boards for announcements of union meetings and other union affairs. 9. The union proposal reduces the minimum number of hours of work required for vacation pay from 1,800 to 1,500.1q 10. The union proposal states the agreement "shall remain in effect until October 22, 1950 and year to year thereafter. Either party may reopen agree- ment for changes by giving sixty (60) day notice prior to the anniversary date. . . ." The Union's proposed contract was submitted to Respondent on November 22, 1949, and used as the basis for the negotiations at the meeting on that date. Concerning union security, the principal point of discussion, Jefferson M. Johnson, one of the union representatives at this meeting, testified credibly : 15 It is noted that this proposal does not seek holiday pay unless work is performed on those days. Compare article 5 of Appendix B. 16 As noted above prior to this written proposal the Union sought such decision within 3 days 17 It is noted that the earlier proposals did not provide for such a reduction and that this -written proposal did not suggest sixty (60) instead of fifteen (15) days' absence as necessary to constitute a break in continuous service. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. All right. Now, did you make any explanation about that Article, or do you recall? A. We read the Union Security Clause , the Article 2, and Mr Fred Larrance , when he read that Article, just took the contract and dropped it over on the table. Q. What did he say, if anything? A. "I will not sign a contract with Union Security Clause like that is in there." Q. Did he mention that he would consider the matter at a later time, or anything of the kind? A. Re said he would never consider it, that he would not sign a contract with the Union Security in there. Q. Did he mention anything about any other proposals that he might make on this subject matter? A. No sir. He said that he would not sign a contract that would have his whole shop join the Union , and he would not sign a contract that, in effect, have other employees join the Union. Q. Now, did you then go to Article 5-B in your discussion , Mr. Johnson? A. No, sir. There was a little bit more brought out on this Union Security. Q. All right, sir. What was said as to that? A. Well, I told Mr. Fred Larrance that we had an election , and the men voted, a majority of the men voted for a Union Shop, and it was that the whole country was run on a basis of a vote, and the will of the majority, and I asked him if he wouldn't try it. The majority of the men in the shop voted for it, so the majority of the men so thought it would be a good thing for the shop, and that I thought that it was the majority , that the majority should rule. Q. (By Mr. Rhea.) What did Mr. Larrance say, if anything , Mr. Johnson? A. Mr. Larrance said that he would still not, said it was just like joining a church or anything, that he wouldn't have a man join the Union unless the man was willing of his own free will to join the Union . He wouldn't insist or post any bulletin board advising them to incorporate, and that he would not, still would not sign the contract with a Union Security in it. Q. Do you remember anything else that was said either by you or Mr. Larrance? A. No sir, but Mr..Conley brought out to Mr. Fred Larrance , then said, "You will not sign a contract with Unidii Security in it at all? Mr. Larrance said, "No, I will not." 18 Concerning the union request for "field construction" rates, Larrance stated that most of Respondent 's outside work was "rectification work" and that "it would be impossible for him to meet the competition of the outside contractors." Larrance also raised an issue as to whether the rates requested were the pre- vailing "field construction" rates in the territory of his shop. Merit systems were again discussed but neither party varied from their previously stated positions." Concerning wage increases Larrance stated that he was willing to continue the then prevailing wage scale but that business was slow because of the coal strike and "he couldn't afford to pay any more money." is No issue was raised at the meetings of the parties or herein as to whether the union- security proposals contain provisions not sanctioned by Section 8 (a) (3) of the Act and no finding will be made with respect to this matter. 19 Larrance again urged a merit system as an incentive measure. LARRANCE TANK CORPORATION 363 Larrance again stated that he was willing to renew the 1948 Agreement but the Union stated that was not satisfactory. The November 22 meeting ended with an understanding that the parties would try to meet again "before Christmas." Early in December 1949 Respondent was told that the union representatives were "tied up with other matters and that they would get in touch" with Respondent "to make an appointment for another meeting." Thenext,meeting was not held until April 13, 1950. Around Christmas 1949 Respondent, without consulting the Union, granted a Christmas bonus, which approximated 1 week's salary. On February 1, 1950, Respondent, without consulting the Union, increased the wage rates-5 cents per hour to some employees and 10 cents per hour to others. The Union first heard about these increases on February 8, 1950, and on the following day criticized Respondent for granting them without notification to the Union. Larrance testified that following Respondent's past practice he granted the Christmas bonus 20 Concerning the February increases Larrance testified : My reason was that January, we had a very light January this year, and the weather conditions,21 our business picked up. We were making a little money, and I thought the boys were entitled to it, and gave it to them. On or about February 10, 1950, Herman E. Soloman, one of the employees who received a 5-cent increase, called upon Larrance and asked for an explana- tion of why some employees received 5 cents while others received 10-cent increases. Larrance explained that it depended upon the type of work the employee performed and at the end of the conference told Soloman: "If it hadn't been for the union, we would have given you boys a raise a long time ago." 22 On February 21, 1950, the Union filed with the Regional Director for the Six- teenth Region a charge n alleging that Respondent was engaging in unfair labor practices within the meaning of Section 8 (a) (1), (3), and (5) of the Act. An amended charge filed March 29, 1950, also alleged violations of these sections of the Act. On April 7, 1950, the parties executed a settlement agreement," which was approved by the Board's Regional Director on April 10, 1950, providing for the posting of a notice for 60 days and for compliance with the terms thereof. Under the terms of the notice Respondent was inter alga "to bargain collectively upon request." The settlement agreement also provided for notification to the Regional Director of the steps taken by Respondent to comply with the agreement and for withdrawal of the charge when the Regional Director "is satisfied that the provisions of this agreement have been carried out." Respondent posted the notice provided for in the settlement agreement and on or about April 17, 1950. advised the Regional Director that such notice was posted. No further information concerning this matter was given to the Regional Director except for the filing of the charges mentioned hereinafter. There is no evidence that the Regional Director was "satisfied that the provisions of this agreement have 20 The General Counsel stated that he was not contending that the giving of the Christmas bonus was per se a refusal to bargain. (See J. B. Cook Auto Machine Company, Inc., 84 NLRB 688, enforced 184 F. 2d 845 (C A 6). However, the undersigned believes that the circumstances concerning such bonus are relevant and material in evaluating Respondent's good or bad faith during the negotiating meetings. 21 Weather mild in January. Respondent's shop is not heated. 22 The record as a whole indicates a greater likelihood that the above statement was made than it does that such statement was not made and Larrance' s denial thereof is not credited. 23 16-CA-241. 14 Informal settlement agreement-NLRB Form 551. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been carried out" or that withdrawal of the charge, which was contingent upon compliance with the terms of the settleinent agreement, was made effective. After an exchange of correspondence concerning a satisfactory date, the parties scheduled a conference for April 13, 1950. The Union's proposed con- tract was used as the basis for negotiations at this meeting and each of the pro- visions of this proposal was discussed. At the conclusion of the meeting, the parties were in accord concerning (1) the preamble, (2) union recognition, (3) hours of work (workweek), (4) pay for work during lunch period, (5) minimum pay and reporting time, (6) seniority, (7) time within which the president of the Company was to render his decision concerning grievances (the parties compromised on three working days), (8) vacations (the parties compromised on 1,650 hours as the minimum number of hours of work required for vacation purposes), (9) payday, (10) medical treatment, and (11) agreement qualifica- tions (saving clause of agreement). However, the primary discussions at this meeting concerned (1) union security, (2) "field construction" rates, (3) pro- bationary period, (4) arbitration, and (5) duration of the agreement. Larrance repeated his objection to requiring employees to join any organiza- tion as a condition of employment and stated that the union-security proposal did not "fit" his shop, that "We understand our people here, and I am not in a position to tell anybody they should join the Union" and "We don't want that." Larrance was asked, "How do you know that your people don't want it? Have you been talking to them?" At that point, Mr. Parker Z` jumped up and said, "Yes, I have talked to the men in the shop and they don't want it. They don't want it put in the agreement." When it was suggested that the parties consider another provision of the Union's proposal and "come back a little later" to union security, Larrance stated, "I don't care how many times you bring it back. I don't care for it, don't like it, don't want it." Larrance opposed "field construction" rates and said "that if he would put that into the agreement, that it would be taking work away from his employees, and he would not be able to pay such rates." After "quite some discussion" the clause concerning this subject matter was passed and was to be considered at a later date. Larrance said he couldn't go along with a 30-day probationary period, that he would like to'have 90 days, and "that he couldn't tell that an employee would be or any value to him until he was in the employ of his company for 90 days." Lar- rance also suggested as a compromise a 60-day probationary period but the parties were not able to compromise their differences. Concerning arbitration, Larrance took the, position •that he did not need any outsiders to help him settle his difficulties and if he had to have them that he did not want the conciliation service. He suggested that a "judge sit in the place of the United States Conciliation Service." When the Union rejected this suggestion , Larrance said, "I don't want no part of it, if you can't put a Federal Judge or a County Judge in place of a Federal Conciliation Service." Larrance again voiced his objection to an automatic renewal clause and said "he would like to have an agreement terminate at the anniversary date, just a one year agreement." 2S Parker denied making the statement attributed to him and testified he asked the question "What if some of the men in the shop refused to join the Union?" On the basis of the entire record, the undersigned believes and finds that Parker made the statement attributed to him. Respondent contends that Parker's statement, whatever it may have been, is not imputable to it. This contention is rejected. Parker is Larrance's son-in-law and attended the meeting at Larrance 's request and it appears clear from the record that he was there as a participant for Respondent . Whether the statement was violative of the Act as contended by the General Counsel is discussed hereinafter. LARRANCE TANK CORPORATION 365 At this meeting on April 13, the union representative asked for a payroll list of the employees and their current rates of pay and discussion concerning wages was deferred pending preparation of this information. During the meeting of April 13, the parties also discussed sick leave, paid holidays, a no-strike, no-lockout clause, and a proposed revision of the rec- ognition clause. A written instrument embodying the union proposals con- cerning these matters (Appendix C) was left with Larrance to study and answer, at a later date. At the conclusion of the April 13 meeting, the parties agreed to meet again on April 20, 1950, and another meeting was held on that date. The union-security clause proposed by the Union was the principal subject discussed at this meeting and was discussed several times throughout the meeting. Larrance repeated his opposition thereto-that he did not believe in forcing anyone to belong to any organization in order to work for him. At the request of the union negotiator, Trepagnier, Respondent submitted a proposal on union security, reading as follows : Article 2.-The Company recognizes and will not interfere with the right of its employees to become and remain members of the Union, and it fur- ther agrees that there shall be no discrimination against, or interference with, restraint or coercion, of any employee by the Company or any of its agents on account of membership or non-membership in the Union. The Company does not require its employees to be members of the Union. The Union, its members or its agents, agree that they will not intimidate or coerce any employee of the Company or discriminate against any em- ployee because of non-membership in the Union. The Union further agrees that it will not solicit membership or conduct any business of the Union on Company paid time or plant property. Trepagnier told Larrance that the Union could not send that clause to the international office of the Union for approval because it amounted to a re- linquishment of "our bargaining rights" and indicated that he needed a union- security clause in any agreement submitted to the international office. Trepag- nier requested that Respondent submit another proposal. Larrance answered, "That is it or we go back to the old agreement. I am ready to sign the '48 agree- ment just as it is." Trepagnier asked Larrance whether he would "go along with the union security clause if the Union withdrew some of its demands" (indicating he would accept the 1948 agreement if it was revised to include the Union's proposed union-security clause) and Larrance answered, "No, never will, as long as I am running this business there will never be a Union Security Clause signed by me " The settlement agreement and notice pursuant thereto, mentioned above, were called to Larrance's attention and he answered, "Yes, I know its there, I signed it but it don't mean anything. All it says, it has to be on the Board sixty days. You can't do nothing about it." Trepagnier asked, "Would you sit here for sixty days and say no continuous?" And Larrance answered, "I guess I could." Larrance was accused of refusing "everything we try to discuss" and answered, "Well we don't want that clause in there. Now, what is wrong with the old agreement9 Why can't we keep this old agreement?" Trepagnier suggested that Larrance contact his attorney about "good faith" bargaining and Larrance said he didn't need his attorney. At the April 20, 1950, meeting, Respondent furnished the payroll list previously requested by the Union and a discussion ensued concerning the February 1 wage increases -Larrance was criticized for granting the wage increases with- out notice to the Union and at a time when he (Larrance) was telling the union negotiators that wage increases were not possible "because of the cost." Lar- 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ranee was asked to "equalize the ten cents that you gave, and give another nickel to the others." Larrance answered, "No, I don't intend to give any more. That is all they are going to get." Concerning the union request for paid holidays, Larrance stated he might be able to go along with two paid holidays but "I will take away the bonus." 28 Larrance opposed sick leave with pay as being subject to abuse and too costly. The April 20 meeting concluded with an accusation that Larrance was refusing to bargain and a statement that the Union was not "getting anywhere." The following morning (April 21, 1950) Trepagnier contacted the U. S. Conciliation Service and thereafter a meeting with Conciliator Eaton Walker was scheduled for May 2, 1950. When the parties assembled on May 2, 1950, Walker, the conciliator, 27 inquired as to the issues in dispute and there ensued a discussion concerning (1) the Union's proposed union-security clause, (2) the February 1, 1950, wage'increases and the Union's demands for further wage increases, (3) "field construction" rates, (4) paid holidays, and (5) arbitration. Talk concerning union security consumed most of the morning session and the parties maintained their respective positions concerning this matter-the Union sought its proposed union-security clause and Respondent refused to sign an agreement containing such clause and sought either the 1948 Agreement or the clause proposed by it at the April 20 meeting (clause set forth above). The parties and Conciliator Walker discussed the wage increases of February 1 and Larrance's failure to notify the Union about such increases and the Union requested a 15 cents per hour increase to all employees retroactive to Feb- ruary 1, 1950. The Union's request for "field construction" rates was again discussed and Larrance said "that if he put that into the agreement it would deprive his employees of some work which he might get on the outside, and it would cut take-home pay down quite a bit." Paid holidays were again discussed and Larrance said, "May I suggest, have ,two paid holidays, and the elimination of the bonus still goes." 28 Arbitration was again discussed and Larrance "insisted on a Judge to sit in place of a federal conciliator." Larrance wanted the District Judge of Comanche County in place of the conciliator. With the approach of noon hour, Walker suggested a recess until after lunch. During the noon recess, Conciliator Walker met with Respondent's representa- tives and explained to them the operation of a maintenance-of-membership clause. When the parties met again after lunch, Larrance stated he would like to present a proposal which he believed agreeable and he would like to have Walker explain it as he (Larrance) "dui not understand all the paragraphs" Walker started talking about maintenance of membership but was interrupted by Trepagnier's 21 The record reflects that Respondent pays Christmas bonuses and other bonuses. Larrance did not specify what bonus he would take away, but the record reveals, by infer- ence, that it was the Christmas bonus. Also Larrance testified he was "kidding" and was not "aiming to" take away the bonus. However, the record does not reflect that such "kidding" and intention were made clear at the meetings of the parties To the contrary, the record reveals that this suggestion was made in earnest and was made at more than one meeting (see outline of May 2 meeting). 27 The testimony concerning the May 2, 1950, meeting is thoroughly conflicting and contradictoiy and the findings of fact with respect to this meeting result from my attempt to reconcile the evidence and determine what probably occurred 28 The record also reflects that possibly at one of the meetings Respondent offered three paid holidays and the Union a "choice of which ones they wanted " However, an analysis of the record casts considerable doubt as to whether such an offer was made and if so the details concerning the time, place, and circumstances and the Union's reaction thereto. A finding that such offer was made appears unwarranted ` LARRANCE TANK CORPORATION 367 statement "Hell no, we can't take that." This meeting ended with a statement by Trepagnier that he was "going to refile all my charges" and ask for 15 cents an hour retroactive to February 1. No further meetings have been held. On May 15, 1950, Trepagnier, as district representative, for the Union, filed with the Regional Director for the Sixteenth Region a charge 20 alleging viola- tions of 8 (a) (1), (3), and (5) of the Act. This charge was amended on September 18, 1950, to allege violations of 8 (a) (1) and (5) of the Act and on that date (September 18, 1950) the case involving the earlier charges (16-CA-241) and the case involving these charges (16-CA-264) were con- solidated and the complaint upon which the instant matter arises (premised upon all of the charges mentioned above) was issued. Sometime during 1950 and prior to October 10, 1950, the date that the hearing in this matter opened, Respondent "paid several bonuses " 30 The record reveals that these bonuses were paid without consulting the Union 3 8 (a) (1) As proof of the allegations that Respondent interfered with, restrained, and coerced employees in the exercise of their rights under the Act, the General Counsel relies upon the above facts concerning the alleged refusal to bargain, the statement by Parker ( that he had talked to the men in the shop and they did not want a union-shop clause), the statement of Larrance to Soloman (that the employees would have received a wage increase sooner if it hadn 't been for the Union ), and upon the testimony of Charles Blosser, set forth below (con- cerning two instances of interrogation of him by his supervisor , Reuben Hollander). Blosser testified : Q (By Mr Rhea ) Now, Mr. Blosser , tell us what was said between you and Mr. Hollander . What did Mr. Hollander say? A. Well, I don't know exactly how he worded it. He just said he didn't see what good it could possibly do if I got into the Union, and asked me if I belonged to it, and I said, "No." Trial Examiner WHEATLEY. I can 't hear you, Mr. Blosser. Would you mind stating what you said again? The WITNESS. Well, he asked me if I was in the Union , and I told him, "No," and he just said if I did he didn' t see what possible good it could do me. I don 't know exactly how he said it. I never paid too much attention to it to tell you the truth. Q. (By Mr. Rhea ) You mentioned in your earlier remark that you haven 't mentioned now- 20 Case No. 16-CA-204. 30 Any contention that these bonuses were routine and therefore could be granted with- out consulting or advising the Union is without merit. ( See J B. Cook Auto Machtine Company, Inc , 84 NLRB 688. enforced 184 F 2d 845 (C A. 6) ) 0 Although the General Counsel stated that he was not contending that the 1950 bonuses constituted violations of the Act, the fact that such bonuses were granted and without consultation with the Union appears to be a proper subject matter for considera- tion in evaluating Respondent's good faith In this connection it is noted that the estab- lished wage payment structure, as provided in the 1948 Agreement and as discussed at the meetings of the parties, does not provide for bonuses and that the Union opposed such additions to the established wage payment structure (See John W. Bolton cf Sons, Inc, 91 NLRB 989 ) 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. One day he picked me up on the way home, asked me, said he heard I got in the.Union, and I told him I didn't. He said he didn't think so. He would have to have me to tell him before be believed it. Concerning the conversation on the way home, Blosser testified further : Well, he just happened to drive up, picked me up, and asked me, he said he had heard I got in the Union. I said, "No, I haven't yet." After I said, "No, I haven't," he said, "Well, I just wanted to hear it out of you." He would have to hear me say it before he believed it. Trial Examiner WHEATLEY. What did you say then? The WITNESS. That is all. That is the last he ever said to me about it. Blosser identified the date of these conversations to be "around March 15, 1950." Blosser's memory concerning these conversations was hazy. Furthermore, he testified that Hollander did not say anything to the effect that joining the Union would hinder him and that Hollander's statements and attitude were not such as to leave any impression that his joining the Union would hinder him. Blosser's testimony indicates that he was "peeved" at Hollander and that his testimony was because of this strained relationship with Hollander. Hollander denied talking to Blosser at any time at the shop concerning unions, and testified that while riding in his (Hollander's) automobile, Blosser said, "Wonder what those boys [meaning the union boys] are going to do next?" And he (Hollander) answered, "Why, I don't know but there had been some discussion down there." According to Hollander, they then discussed the "talk going around" and he (Hollander) said, "Well, I have been told that you belong to them [the union]. Why are you wondering [what they are going to do next] ?" Hollander testified Blosser then said, "Why should I? I'd be a damn fool for joining them. That just about would ruin me, wouldn't it?" And he (Hollander) answered, "No, not that I know. I think some of them 32 belong, and I don't think it's ruining them, and I can't see where it helps them, and I don't think it makes any difference." Hollander's testimony also indicates that Blosser testified against him because Blosser was "peeved" and that Blosser told him (Hollander) that the statements he (Blosser) had made concerning the conversation in Hollander's automobile were "a damn lot of -" (vulgar term which may be interpreted as meaning statements not entirely accurate). After observing the witnesses and analyzing the record herein, the undersigned accepts Hollander's testimony rather than Blosser's. Contentions Respondent denies that it refused to bargain collectively and contends that it has "on every occasion requested by said union bargained in good faith." Respondent also denies the allegations of interference, restraint, and coercion of employees in the exercise of their rights under the Act. Affirmatively, Respondent contends that it has complied with all the terms of the settlement agreement mentioned above and that therefore acts and conduct complained of and allegedly occurring prior to the date thereof should not be considered herein. Respondent further asserts that the charge and amendment thereto filed after the date of the settlement agreement (l6-CA-264) are new and separate charges from the charges filed prior to the date of the settlement agreement (16-CA-241) and that by filing the new and separate charges, without there having been a complaint issued on the earlier charges, the Union waived the acts 32 Welders. Blosser was practicing to become a welder. LARRANCE TANK CORPORATION 369 complained of in said earlier charges and that by virtue of Section 10 (b) of the Act "the acts complained of occurring more than 6 months prior to the filing of the charge on the seventeenth day of May 1950 are barred and should not now be considered." Respondent concedes that there are situations where the Board will look behind settlement agreements, but argues that not every violation of the Act will justify nullifying the settlement agreement and going behind it and that the facts in the instant proceedings do not warrant such a course of action. Lar- rance's statements of the April and May 1950 meetings, especially his remarks concerning field construction rates, the meaning of the settlement agreement, the Uniou's request for an equalization of the February 1 wages increases and concerning paid holidays readily distinguish the instant matter from cases involving isolated and unrelated antiunion conduct occurring after the date of settlement agreements. After careful consideration of this matter, the under- signed has concluded that under the facts herein the settlement agreement should not bar a consideration of the conduct complained of and allegedly occurring prior to the date of the settlement agreement It is noted that the acts and conduct complained of and occurring atter the date of the settlement agreement are of the seine type as those occurring prior to the date thereof and that it is contended, in effect, that they are of the same scheme or plan and related to the alleged violations prior to the date of the settlement agreement Furthermore, as noted above, the record does not reveal that the Regional Director has been satisfied that the provisions of the settlement agreement have been carried out or that withdrawal of the charges in Case No 16-CA-241, which was contingent upon compliance with the terms of the settlement agreement, has been made effective It must be presumed therefore that this proceeding (16-CA-241) has not been terminated and that the instant proceeding is a continuation thereof. Although the Act (Section 10 (b)) bars a complaint based upon any unfair labor practice occurring more than 6 months prior to the filing of the charge, it does not set a time limit within which a complaint must be filed '3 and the record herein does not reflect any unreasonable delay in issuing the complaint. The original charge (filed February 21, 1950) and all subsequent charges and amendments alleged that Respondent 'has engaged in and zs' engaging in" unfair labor practices within the meaning of Section 8 (a) (1) and (5) of the Act and Respondent has been on notice that the entire history of its relationship with its employees and with the Union from September 21, 1949 (6 months prior to the date of the charge) and thereafter has been subject to possible litigation. Thus, even assuming arguendo that the later charges had not been filed, it appears that the Act would not bar the complaint herein.- However, in fact, charges were filed afer the settlement agreement and, insofar as the issues her eul are con- cerned, they are in effect the earlier charges brought down to date. See The Kansas Milling Compawg v. N. L. R. B , 185 F. 2d 413 (C. A. 10), and Jersey City lVeldt,ag & Machine Workers, Inc, 92 NLRB 510. Under the circumstances revealed by this record, the undersigned rejects the contention that the charge and amendment thereto filed in 16-CA-264 are new and separate charges, that the Union waived the acts complained of in earlier charges, and that Section 10 (b) of the Act bars a consideration of the acts complained of occurring more than 6 months prior to the filing of the charge on the seventeenth day of May 1950 as Theme is no contention herein that the unfair labor practices complained of occu,red more than 6 months prior to the filing of the original chaige in 16-CA-24t 3s Supplied 953541-52-vol 94-25 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I The record is clear that Respondent did meet with the Union and discussed* various proposals but such conduct by Respondent does not necessarily satisfy its bargaining obligation , for the real question is whether or not the Respondent was dealing in good faith as required by the Act, or engaging in "surface bar- gaining" without any intent of concluding an agreement on a give-and -take basis. Good faith indicates a disposition or a willingness to reach a mutually satisfac- tory agreement with an attitude of reasonableness on both sides to attain that end. Neither side may enter negotiations with his mind hermetically sealed against entering into contractual relations or be capriciously unreasonable throughout the negotiations in order to prevent an agreement. Whether Re- spondent bargained in good faith is a question of fact to be'resolved from the. totality of the evidence and no one fact is necessarily determinative. Respondent's attempt to reserve to itself the unilateral power to decide mat- ters of earnings is incompatible with a bona fide endeavor to reach an under- standing with the chosen representative of its employees and manifests the negation of the collective bargaining envisaged by the Act. Furthermore, Respondent's unilateral action in increasing the pay of its employees on February 1, 1950, while maintaining at negotiating meetings its inability to grant wage increases , is per se violative of Respondent 's duty to bargain with the collective bargaining representative of its employees . In view of the statements of the General Counsel at the hearing , no finding is made as to whether the 1949 Christmas bonus and the bonuses granted in 1950 were per se violative of the Act. However, the undersigned has considered these unilateral alterations of existing wages and conditions of employment in evaluating Respondent's good faith and has concluded that they, when considered with other evidence in the case, reflect a predetermination not to make any effective concessions to the Union regarding wages and to reserve to itself the unilateral power to decide matters of earnings. Respondent's lack of good faith is further evidence inter alia by its position concerning field construction rates-first, that Respondent "didn't do much field construction work, if practically any . . ." and finally that if Respondent granted such rates, it would cut down on the amount of such work ; by Respondent's adamant attempts to maintain the 1948 Agreement ; by its attempts to obtain terms known to be particularly unacceptable to the Union and which were more advantageous to Respondent than the terms of the 1948 Agreement, by Re- spondent's positions on paid holidays-first, that paid holidays were too costly, and later, that two paid holidays could be granted but that in exchange therefor, employees would relinquish certain benefits more advantageous to them than two paid holidays ; by Larrance's remarks at the April 20 meeting concerning the meaning of the settlement agreement , and by Larrance's statement to Soloman that if it hadn't been for the Union, the employees would have received "a raise a long time ago." Considerable suspicion is cast upon Respondent 's "good faith" concerning union security in view of the election in which a majority of the employees authorized the execution of an agreement requiring membership in the Union as a condition of employment. In addition , Respondent's attempts to reserve to itself the unilateral power to decide matters concerning grievances, casts further suspicion upon Respondent's. good faith. Nevertheless, the ultimate finding herein that Respondent refused to bargain is not premised on Respond- ent's position concerning these matters since Respondent finally relented and indicated its willingness to consider a maintenance-of-membership clause and an arbitration clause, if a judge were substituted for a conciliator. LARRANCE TANK CORPORATION 371 In view of the foregoing, and upon a consideration of the record as a whole, I find that on September 28, 1949, and at all times thereafter, Respondent evi- denced an intention to avoid its duty to bargain in good faith and thereby refused to bargain collectively with the Union and interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act in violation of Section 8 (a) (5) and 8 (a) (1) of the Act. There is no question that Respondent violated Section 8 (a) (1) of the Act by its statement to Soloman that absent the Union, employees would have re- ceived a raise in pay sooner, and by its attempts to undermine the Union through unilateral wage increases. To find, as the General Counsel in effect argues, that Parker's statement that he had talked to the employees and that they did not want the union-security provisions proposed by the Union amounts to an admission and proof that Parker questioned numerous employees about their -union affiliation, requires, in the opinion of the undersigned, speculation and an unwarranted straining of Parker's statement. Ultimate Findings and Conclusions 86 In view,of the foregoing and upon a consideration of the entire record, the undersigned finds and concludes: 1. Respondent is engaged in commerce within the meaning of the Act. 2. International Brotherhood of Boilermakers, Iron Ship Builders and Help- ers of America, Local 592, AFL, is a labor organization within the meaning of the Act. 3. All production and maintenance employees employed at Respondent's Law- ton, Oklahoma, plant, exclusive of all clerical employees, janitors, watchmen, and supervisory employees, constitute a unit appropriate for purposes of collective bargaining within the meaning of the Act. 4. At all times material herein the Union has been the representative of a majority of the employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, or other conditions of employment. 5. That on or about September 28, October 17, October 27, November 1, and November 22, 1949, and on or about February 1, April 13, April 20, and May 2, 1950, and at all times thereafter, Respondent refused to bargain collectively with the Union as the exclusive representative of the employees in, the aforesaid unit. 6. That Respondent, by its aforesaid refusal to bargain, by unilateral wage increases, and by promises of benefit in return for relinquishment of union membership and activity, interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act. 7. That the afore-mentioned acts and conduct of Respondent constitute unfair labor practices within the meaning of Section 8 '(a) (1) and (5) of the Act and are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. The Remedy Respondent's illegal activities, discussed above, disclose an intent to defeat self-organization and its objectives, and an attitude of opposition to the purposes of the Act. Respondent's unlawful conduct and the underlying purposes mani- 31 Respondent's motions to dismiss, which were taken under consideration, are now disposed of in accordance with the findings and conclusions herein made. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fested thereby are related to other unfair practices proscribed by Section 8 (a) of the Act and danger of commission in the future of any or all of the unfair labor practices defined in Section 8 (a) of the Act is to be anticipated from Respondent's conduct in the past. The preventive purposes of the Act will be thwarted unless the order herein is coextensive with the threat. In order, there- fore, to make effective the interdependent guarantees of Section 7, and thus effectuate the policies of the Act, it will be recommended that Respondent cease and desist, not only from the unfair labor practices herein found, but also from in any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, and that Re- spondent take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has refused to bargain with the Union as the duly designated representative of its employees, it will be recommended that Respondent be required, upon request, to engage in good faith collective bar- gaining with the Union. [Recommended Order omitted from publication in this volume.] EDWARDS MOTOR COMPANY, INC. and INTERNATIONAL ASSOCIATION OF MACHINISTS, PETITIONER. Case No. 10-RC-12./13. May 9, 1951 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before John S. Patton, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Murdock and Styles]. Upon the entire record in this case, the Board finds : 1. The Employer, an Alabama corporation, is engaged in the sale and servicing of new and used cars and trucks, and the sale of parts and accessories for automobiles and trucks. It operates under a sales agreement with General Motors Corporation, Chevrolet Division. During the calendar year 1950 the Employer made purchases in excess of $1,300,000. Over $1,000,000 worth of these purchases were shipped indirectly to it from points outside the State of Alabama: All of the Employer's sales were made within the State of Alabama. On the basis of the foregoing facts we find that the Employer is en- gaged in commerce, and that it will effectuate the policies of the Act to assert jurisdiction in this case? ' Cf. Dorn's House of Miracles, Inc., 91 NLRB 632; Barter Bros., 91 NLRB 1480; Conover Motor Company, 93 NLRB 867. 11 NLRB No. 31.