The Timken Roller Bearing Co.

In the Matter of THE TIMKEN ROLLER BEARING COMPANY and UNITED STEELWORKERS OF AMERICA, (C. I. 0.) Case No. 8-C-1815.-Decided August 06, 1946 Mr. Louis S. Belkin, for the Board. Messrs. Lynch, Day, Lynch, Cope and Ketterer, by Messrs. John G, Ketterer, Don W. Raley, and G. H. Turner, of Canton, Ohio, for the respondent. Messrs. Herschel Kriger, I: W. Abel, and Finas Reynolds, on Canton, Ohio, and Mr. Frank Donner, of Washington, D. C., for the Union. Mr. Sidney Grossman, of counsel to the Board. DECISION AND ORDER On February 6, 1946, Trial Examiner Horace A. Ruckel 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 Inter- mediate Report attached hereto. The Trial Examiner also found that the respondent had not engaged in other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed as to them. Thereafter, the Union and the respondent filed exceptions to the Intermediate Report and supporting briefs. Oral argument, in which the respondent and the Union participated, was held before the Board in Washington, D. C., on May 21, 1946. The Board has reviewed the Trial Examiner's rulings made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate,Report, the exceptions and briefs of the parties, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner except as they are inconsistent with our findings and order hereinafter set forth. 1. In-view of the circumstances hereinafter disclosed, we are unani- mously of the opinion that the Union may not now invoke our aid with respect to the issue concerning the Employees' Manual. On 70 N. L. R. B., No. 39. 500 I THE TIMKEM ROLLER BEARING COMPANY 501 June 13, 1945, following the respondent's refusal to bargain as to this matter, the Union, pursuant to the terms of the 1943 agreement under which the parties then were operating, submitted this contro- versy to the American Arbitration Association for arbitration. The respondent, although at first refusing to refer this matter to arbitra- tion, subsequently consented that there be submitted to the arbitrator only the question as to whether the dispute is arbitrable within the meaning of the 1943 agreement. On July 2, 1945, the Union also filed its original charge before the Board as to this issue. It'did not there- after attempt to withdraw from the arbitration proceeding, as stated by the Trial Examiner, but on July 6, 1945, it, advised the American Arbitration Association that "the arbitrator selected should determine whether or not the case is arbitrable and if so, he should also determine the merits of the case.". Although in the course of the arbitration hearing, the Union requested that further consideration of the case be suspended pending disposition of the charges before the Board, the arbitrator nevertheless completed the hearing and, on September 28, 1945,1 before the issuance of the complaint herein, rendered a decision on the merits in favor of the respondent. It is evident that the Union has concurrently utilized two forums for the purpose of litigating the matter here in dispute. Although the arbitrator determined the issues before him within the framework of the 1943 agreement and expressly refrained from prejudicing the rights of either party before the Board, it would not comport with the sound exercise of our administrative discretion to permit the Union to seek redress under the Act after having initiated arbitration pro- ceedings which, at the Union's request, resulted in a determination upon the merits? In the interest of ending litigation and otherwise effectuating the policies of the Act, we shall dismiss that portion of the complaint relating to the respondent's refusal to bargain as to the Employees' Manual. Although, for the reasons stated above, we have dismissed the com- plaint as to the Employees' Manual, we do not concur with the re- spondent's contention that by submitting this matter to arbitration it fulfilled its obligation to bargain. As indicated in the Intermediate Report, the record discloses that the respondent in fact refused to bargain as to this issue for the reason that the promulgation and is- suance of an employees' manual rests within its managerial preroga- ' The Trial Examiner inadvertently refers to this date as November 10, 1944. z We do not thereby imply that the determination of an arbitrator is binding upon the Board. Section 10 (a) of the Act provides that the power of the Board to prevent unfair labor practices affecting commerce "shall be exclusive and shall not be affected by any other means of adjustment or prevention that has been or may be established by agree- ment, code , law, or otherwise." Cf. N. L. R. B. v. Newark Morning Ledger Company, 120 F. ( 2d) 262 (C. C A. 3), cert. denied 314 U. S. 693; N. L. R. B. v. Walt Disney Pro- ductions, 146 F. (2d) 44 , 48 (C. C. A. 9), cert. denied 65 U . S. 1025. 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tive. In support of its position, the respondent also asserts that em- ployees aggrieved by the improper' administration of rules contained in the Manual may seek redress through the contract grievance procedure. The Employees' Manual includes various rules which affect working conditions in the plant and some rules afe of the type which, without adequate qualifications and safeguards, may be unduly restrictive of legitimate concerted activities .3 An employer has an affirmative duty, as a continuing part of the collective bargaining process, to negotiate as to such matters with the employees' statutory representative. This view is not inconsistent with management's right, as enunciated by the arbitrator, to formulate and publicize rules of conduct for its employ- ees; it simply means that, insofar as the exercise of this managerial prerogative affects the employees' working cgnditiolis in their day-to- day relationship with their employer, the representative of the unit has a right to be consulted. Nor is collective bargaining, as thus viewed, delimited by a grievance procedure, established by contract, as exists here, which normally entails the presentation of claims by indi- viduals or small groups respecting their own individual or group in- terests. Any other view would preclude the statutory representative from bargaining as to matters concerning which no individual griev- ance may exist but which affect the working conditions of the employ- ees collectively .4 We therefore agree with the Trial Examiner that the respondent's refusal to negotiate as to the Employees' Manual was not in conformity with the requirements of the Act, but in the circum- stances of this case, we shall not as a matter of policy exercise our jurisdiction to sustain his findings with regard thereto. 2. We do not agree with the Trial Examiner's finding that, by uni- laterally requesting employees'to work overtime without consulting the Union, the respondent refused to bargain. At the hearing, Reynolds, president of the Union, testified that, following the plant's reversion from a 48-hour week to a 40-hour week after V-J day, employees were required to work overtime to such an extent that a majority were work- ing 48 hours a week. The Union contends that, by thus extending the work-week without union approval, the respondent violated the terms 3 For instance, rules which prohibit distribution of literature and other printed matter on company premises or engaging in strikes and other interruptions of work. See also Intermediate Report, footnote 7. Various penalities are prescribed in the Employees' Manual for violations of the rules. A Cf Matter of Aluminum Ore Company, 39 N. L R. B. 1286, 1296, enf'd as mod. 131 F. (2d) 485 (C C. A. 7) ; Matter of Westinghouse Air Brake Company, 25 N L R. B. 1312, 1326-1327,,enf'd as mod. 120 F. (2d) 1004 (C. C. A. 8) ; Matter of South Carolina Granite Company, 58 N. L. R. B. 1448, 1461. For similar reasons, as well as those stated by the Trial Examiner in his Intermediate Report, the respondent's contention, in justifying its refusal to bargain with respect to other issues, that employees have not presented grievances in connection with such issues, is likewise unsound. THE TIMKEM ROLLER BEARING COMPANY 503 of the 1943 agreement,5 and thereby unilaterally changed the length of the work-week in violation of Section 8 (5) of the Act . On the other hand, the respondent maintains that, because of a labor shortage and other reasons, it offered overtime to employees upon a voluntary basis and that employees were not penalized for their refusal to comply. Glenn, the respondent's general superintendent, testified that as of the week beginning August 19, 1945, about 25 percent of the employees in about 80 percent of the departments were offered overtime work and that by October 7 , 1945, the offer was extended to about 50 percent of the employees in about 95 percent of the departments." He also testi- fied that about 60 percent of the employees to whom such offer was made reported for work during a 2-week period following V-J day, but the number thereafter decreased to about 2 percent as a result of Union opposition . The evidence also reveals that at a conference with the respondent on August 27, 1945, the Union objected to any practice that would preclude employees from working overtime in certain instances. Especially important, the 1943 agreement contemplates that em- ployees may work overtime and provides a deterrent in the form of premium wages for work performed in excess of 8 hours a day or 40 hours a week .7 That was the parties' bargain , and could only have meant that they always anticipated that individual employees would be expected to work additional hours from time to time, without new collective negotiations being necessary in each instance. In this context, we are unable to find, as did the Trial Examiner, that consultation with the Union is necessary when employees are asked to work overtime, nor are we able to read any such provisions into the agreement. The evidence is not sufficient to warrant a finding that the respondent effectuated a change in the length of the workweek, as alleged in the complaint." Notwithstanding plant reversion to a 40- hour week after V-J day, the respondent and the Union contemplated that there would be some overtime . Although the respondent extended the offer of overtime to a substantial number of employees , this, in itself, does not establish a change in the workweek . We therefore The contract provisions referred to by the Union are :' SECTION III. (2 ) The normal hours of work shall be eight (8) per day and forty (40) per week. * * * (3) There shall be no change in the daily hours of work unless such change be first mutually agreed upon between the Company and the Union. O Employees in the percentages mentioned did not work overtime, as stated by the Trial Examiner, but were offered overtime. I See Intermediate Report, footnote 9, for the language of the 1943 agreement relating to overtime work. I The complaint alleges, in substance, that the respondent unilaterally announced and effectuated an eight-hour increase in the workweek for a substantial portion of the employees without consulting the Union, and that the respondent refused to accede to a request to bargain as to the change in working hours. 504 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD shall dismiss that portion of the complaint relating to the respondent's refusal to bargain as to the so-called overtime issue. 3. The Trial Examiner found that the respondent unlawfully re- fused to bargain concerning a, lack of sufficient employees in the 10-inch mill and with respect to the working schedules of maintenance em- ployees. He inadvertently omitted to state that, by letter dated Octo- ber 17, 1945, subsequent to the strike, the Union requested a meeting as to these matters, and that in its response of October '19, 1945, the respondent refused to accede to this request. We hereby correct the Intermediate Report by including herein such omissions, and as thus corrected, all agree with the Trial Examiner's findings .9 By such refusal to bargain concerning a lack of sufficient employees in the 10- inch mill and by the refusal to bargain concerning the working sched- ules of maintenance employees, and by each of them, the respondent refused to bargain within the meaning of Section 8 (5) of the Act. 4. The Trial Examiner found that the respondent unlawfully're- fused to bargain with the Union (1) by unilaterally effecting a change in the working conditions in department 180 and by refusing to discuss the matter with the Union; (2) by refusing to bargain regarding the subcontracting of work; and (3) by refusing to bargain'concerning the work schedules of pitcrane hands in department 19,910 For the reasons stated in the Intermediate Report and those previously men- tioned hereinabove, we all agree with the Trial Examiner's findings as to these matters. By such acts, and each of them, the respondent re- fused to bargain within the meaning of Section 8 (5) of the Act. THE REMEDY The Union in its exceptions and supporting brief requests, in sub- stance, that the changes instituted by the respondent's unlawful uni- lateral action be revoked and that the working conditions existing prior to such unilateral action be restored. We have found that the respondent's unilateral action in changing the working conditions in department 180 without consulting the Union and its refusal to 0 We also concur with the Trial Examiner ' s conclusion that the existence of a strike allegedly in violation of a no-strike clause does not impair the obligation to bargain. It is the declared policy of the Act to mitigate and eliminate obstructions to the free flow of commerce by encouraging the practice and prpcedure of collective bargaining. A no- strike clause is designed to keep disputes from interrupting the respondent ' s operations but, as the case under consideration amply demonstrates it constitutes no guarantee that such interruptions will not occur . Unless the statutory duty to bargain collectively is held to remain in force even after a labor contract previously made has been broken, the purpose of the Act to promote industrial peace through collective bargaining will be attained only in small measure Consequently , the refusal of the respondent to bargain with the Union after the strike is a violation of Section 8 (5) of the Act . Cf N. L. R. B. v. Highland Shoe, Inc, 119 F. ( 2d) 218 (C. C. A. 1); Matter of Consumers Veneer & Lumber Company , 63 N. L R. B . 17, 25, 40. _ 10 In his concluding findings in the Intermediate Report , the Trial Examiner inadvertently referred to department 199 as department 180. THE TIMKEN ROLLER BEARING COMPANY 505 bargain with respect thereto is violative of Section 8 (5) of the Act. The Union's proposed remedy therefore is solely applicable to the unilateral change in working conditions effectuated by the respondent in this department. However, we note that the subject matter of the Union's complaint with respect thereto has now been settled by the terms of a new contract entered into by the parties subsequent to the close of the hearing herein?1 We, therefore, shall withhold the affirma- tive action requested by the Union. ORDER Upon the entire record in the case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, The Timken Roller Bearing Company, Canton, Ohio, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Refusing to bargain collectively with United Steelworkers of America (C. I. 0.), as the exclusive representative of all production and maintenance employees at the respondent's bearing, steel, and tube plants at Canton, Ohio, its steel and tube plant and bearing plant at Gambrinus, Ohio, and its plants at Wooster, Mt. Vernon, and Columbus, Ohio, excluding foremen, assistant foremen, or supervisors in charge of any class of labor, bricklayers, watchmen, guards, factory clerks or other clerical workers, and salaried employees, in respect to labor disputes, grievances, rates of pay, wages, hours of work, and other terms or conditions of employment and particularly with respect to the change of working conditions in department 180, the sub-contracting of work, the lack of sufficient employees in the 10-inch mill, the working schedules of the maintenance employees, and the working schedules of the pit-crane hands; (b) Unilaterally making changes without consulting the Union referred to above with respect to rates of pay, wages, hours of work, and other terms or conditions of employment; (c) Any other acts in any manner interfering with the efforts of United Steelworkers of America (C. I. 0.) to negotiate on behalf of the respondent's employees in the appropriate unit. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with United Steelworkers of America (C. I. 0.), as the exclusive representative of all produc- tion and maintenance employees at the respondent's bearing, steel, "At the oral argument before the Board, we granted the respondent 's motion, which the Union did not oppose, that the record be reopened and that the contract entered into between the parties on April 22, 1946 , be made part of the record. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and tube plants at Canton, Ohio, its steel and tube plant and bearing plant at Gambrinus , Ohio, and its plants at Wooster, Mt. Vernon, and Columbus , Ohio, excluding foremen, assistant foremen, or super- visors in charge of any class of labor, bricklayers , watchmen, guards, factory clerks , or other clerical workers, and salaried employees, in respect to labor disputes , grievances, rates of pay, wages, hours of work, and other terms or conditions of employment, and particularly, bargain collectively with respect to the change of working conditions in department 180, the sub-contracting of work; the lack of sufficient employees in the 10-inch mill , the working schedules of the main- tenance employees, and the working schedules of the pit-crane hands; (b) Post immediately in conspicuous places throughout its Canton, Gambrinus, Wooster, Mt. Vernon, and Columbus, Ohio, plants, copies of the notice attached hereto and marked "Appendix A." Copies of said notice , to be furnished by the Regional Director for the Eighth Region, shall , after being duly signed by the respondent's representa- tive, 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 the respondent cus- tomarily posts notices to its employees . 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 Eighth Region in writing, within ten ( 10) days from the date of this Order, what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the respondent violated Section 8 (1) of the Act independently of its.conduct in violation of Section 8 (5) of the Act. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant,to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: We will not refuse to bargain collectively with the United Steel- workers of America (C. I. 0.) as the exclusive representative of the employees in the unit described below, and particularly with respect to the change of working conditions in department 180, the subcontracting of work, the lack of sufficient employees in the 10-inch mill, the working schedules of maintenance employees, and the working schedules of pit crane hands. THE TIMKEN ROLLER BEARING COMPANY 507 We will not unilaterally make any changes with respect to rates of pay, wages, hours of work, and other terms or conditions of employment. We will not in any manner interfere with the efforts of the United Steelworkers of America (C. I. 0.) to negotiate on behalf of our employees in the appropriate unit. We will bargain collectively with United Steelworkers of America (C. I. 0.) as the exclusive representative of our em- ployees in the bargaining unit described below. THE BARGAINING UNIT IS: All production and maintenance employees in our bearing, steel.3 and tube plants at Canton, Ohio, our steel and tube plant and bearing plant at Gambrinus, Ohio, and our plants at Wooster, Mt. Vernon, and Columbus, Ohio, excluding fore- -men, assistant foremen, or supervisors in charge of any class of labor, bricklayers, watchmen, guards, factory clerks, or other clerical workers, and salaried employees. ------------------------ (Employer) By ------------------------ (Representative ) (Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. MR. GERARD D. REILLY, concurring in part, dissenting in part : This record does contain evidence of certain instances in which the respondent refused to bargain with the certified representative with respect to matters not inchided in the contract. I refer particularly to the controversy over the working schedule of maintenance em- ployees, as well as respondent's refusal to meet with the Union to dis- cuss the alleged lack of sufficient employees in the 10-inch mill. For the reasons which I noted in my separate opinion in the Matter of J. H. Allison case,12 I cannot agree with the principal theory upon which this case was tried, namely, the existence of a duty to bargain on matters already covered by the collective bargaining agreement. It seems to me that an employer during the life of such an agreement has no duty to meet with the union to discuss changes in the contract terms. Of course if there is an instance of a mis-application of the contract provisions, that is something different. But such a question should be resolved by resorting to the grievance procedure, and for that reason I feel that this company did not violate the law in insist- 1270 N L R B. 377, decision issued August 26, 1946 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing that the issuance of the employees' manual be disposed of under the machinery established in the agreement. I should therefore con- cur with the Board's reversal of the Trial Examiner on this issue on this further ground. I also concur with the majority's opinion with respect to the so- called "unilateral change in the work-week." The agreement itself, by permitting overtime work if certain penalty overtime was paid, gave the employer the option of increasing the schedule of hours, provided he was willing to pay the penalty exacted by the contract. This case is a peculiar one in that it is difficult, under established rules of decision of this Board and the courts, to approve the position taken by either of the contending parties. I cannot agree with the proposition advanced by the company that certain issues affecting wages, hours, and the working conditions of the employees in the bar- gaining unit are not a proper subject for collective bargaining but rather fall within the nebulous area described as a management pre- rogative. At the same time, to accept the Union's thesis that, even after bargaining negotiations have resulted in a contract, the contract should never be construed as- depriving the bargaining representative of the right to open up all issues for re-negotiation, would seem to me to destroy all stability in the collective bargaining relationship and make a mockery of the emphasis which this Board has placed upon reducing the issues adjusted in the bargaining process to the form of a written agreement 19 MR. JOHN M. HOUSTON, dissenting in part : I would sustain the Trial Examiner's finding that the respondent violated Section 8 (5) by instituting widespread changes in working hours without prior consultation with the Union. The record is clear that the respondent sought to effect a substantial change in the work week contrary to the terms of its collective bargaining contract with the Union.14 Overtime hours of work are concededly a bargainable issue. It follows that an employer owes a duty to discuss proposed modifications in this connection, Admittedly this employer did not do so. We should remedy this violation as well as the others found in this case. INTERMEDIATE REPORT Mr. Louis S. Belkin , for the Board. Lynch, Day, Cope and Ketterer, by Messrs. John G. Ketterer and Don. W. Raley, of Canton, Ohio, and Mr. G. H. Turner, of Canton, Ohio, for the respondent Messrs Herschel Kriger, I. 1V. Abel, and Fanas Reynolds, of Canton, Ohio, for the Union. is N L R B. v. H J. Heinz Co ., 311 U S 514 " See Section III (3 ) of the contract , footnoted in the majority decision. THE TIMKEN ROLLER BEARING COMPANY STATEMENT OF THE CASE 509 Upon a second amended charge filed on October 18, 1945, by United Steelworkers of America (C. I. 0.), herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Eighth Region (Cleveland, Ohio), issued an amended complaint dated October 30, 1945, against The Timken Roller Bearing Company, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affect- ing commerce within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The respondent filed an answer dated November 8, 1945, in which it admitted some of the allegations of the complaint, but denied that it had engaged in any unfair labor practices. Pursuant to notice, a hearing was held from November 13 to 21, 1945, at Canton, Ohio, before Horace A. Ruckel, the undersigned Trial Examiner duly appointed by the Chief Trial Examiner The Board, the respondent, and the Union were represented by counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bear- ing upon the issues was afforded all parties. Upon the opening of the hearing, counsel for the respondent moved to make the complaint more definite and cer- tain. The undersigned granted this motion in part.' During the course of the hearing the undersigned granted a motion by counsel for the Board further to amend the complaint, and on November 14 amendments to the complaint were filed. With respect to the unfair labor practices, the complaint, as amended, alleged in substance that the respondent (1) since July 14, 1942, has failed and refused to bargain collectively with the Union although the Union has been the repre- sentative of a majority of the employees in an appropriate unit, and (2) since about February 1, 1944, has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by making dis- paraging remarks concerning the Union, by removing union bulletins and other material posted on bulletin boards maintained for use by the Union, and by urging supervisors to keep, and by keeping, activities of union members under surveillance. N The respondent amended its answer to deny the allegations of the complaint as amended. Upon the conclusion of the Board's case the undersigned granted a motion by counsel for the respondent to dismiss certain allegations of the complaint for want of evidence and'denied his motion to dismiss it in other particulars and as a whole.2 At the conclusion of the hearing counsel for the Board moved to conform the pleadings to the proof in formal matters, and counsel for the respondent renewed his motion to dismiss the complaint as a whole. The undersigned granted the motion of counsel for the Board and reserved ruling on the motion of counsel for the respondent. It is hereby denied. Counsel's motion was that the names of supervisory employees alleged to have made statements hostile to the Union be furnished, together with information as to the place and approximate date when such statements were alleged to have been made. This infor- mation was given counsel for the respondent in accordance with the Trial Examiner's ruling 2 The allegations which the Trial Examiner dismissed were that the respondent refused to bargain collectively by (a) unilaterally instituting new and revised work schedules in department 190 ; (b) unilaterally effectuating a stagger system in allocating work in department 73, and by (c) refusing to discuss with the Union the discharge of an employee. No evidence was offered in support of these allegations. 510' DECISIONS OF NATIONAL LABOR RELATIONS BOARD The parties were advised that they might argue orally before the Trial Exam- iner, and might file briefs with the Trial Examiner by December 5, 1945. No oral argument was had. Subsequently, the time within which briefs might be filed was extended-to December 19. The Board, the Union, and the respondent have filed briefs. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following 0 FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT The respondent is an Ohio corporation having its principal office and place of business at Canton, Ohio. It is engaged in the manufacture of bearings, steel tubing, and rock bits. It operates plants at Canton, Gambrinus, Wooster, Mt. Vernon, and Columbus, Ohio. During the calendar year 1944 the respondent used 'materials consisting principally of pig iron, steel, and scrap, in excess of $20,000,000 in value, of which approximately 50 percent was shipped to it from points outside the State of Ohio During the same period the value of the re- spondent's finished products amounted to more than $100,000,000, of which approximately 50 percent was shipped by it to purchasers outside the State of Ohio. The respondent admits that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America is a labor organization admitting employees of the respondent to membership. It is affiliated with the Congress of Indus- trial Organizations. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain 1. The appropriate unit and representation by the Union of a majority therein The complaint alleges, the answer admits, and the undersigned finds, that all production and maintenance workers in the respondent's bearing, steel, and tube plants at Canton, Ohio, its steel and tube plant 'and bearing plant at Gambrinus, Ohio, and its plants at Wooster, Alt Vernon, and Columbus, Ohio, excluding foremen, assistant foremen, or supervisors in charge of any class of labor, bricklayers, watchmen, guards, factory clerks or other clerical workers, and salaried employees, constitute a unit appropriate for collective bargaining within the meaning of Section 9 (b) of the Act. On or about July 31, 1942, following a consent election on July 14 among the employees in the appropriate unit, the Board certified the Union as the collec- tive bargaining representative of the employees within the unit.' On February 19, 1943, the respondent and the Union entered into a contract covering such employees. , The undersigned finds that on July 14, 1942, and at all times thereafter, the Union was the duly designated representative of a majority of the employees in the appropriate unit, and that by virtue of Section 9 (a) of the Act, was on July 14, 1942, and thereafter, the exclusive representative of all employees in 3 Timken Roller Bearing Company, 42 N. L R B. 1190 THE TIMKEN ROLLER BEARING -COMPANY 511 such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours, and other conditions of employment. 2. The refusal to bargain (a) The issues The specific issues pertaining to the refusal to bargain are presented by the allegations that the respondent (1) on or about lIay 1, 1945, unilaterally and without prior consultation with the Union, issued an employee manual setting forth certain plant rules and penalties for their infringement, and, thought requested, refused to bargain concerning the matter with the Union; (2) on or about September 14, 1945, unilaterally effected an increase of 8 hours in the work week of a substantial number of employees within the appropriate unit, and thereafter, though requested, refused to, bargain with the Union respecting the matter; (3) unilaterally effected a change in the working conditions of employees in Department 180 by announcing and effectuating such change with- out consulting the Union and refusing to bargain with the Union when requested to do so; (4) on or about October 1, 1945, refused to bargain with the Union with respect to the continuance of a practice of sub-contracting certain produc- tion and maintenance work to private contractors; (5) refused to bargain con- cerning a lack of sufficient employees in the respondent's 10-inch mill ; (6 )- refused to bargain concerning the working schedules of maintenance workers; (7) on or about October 16, 1945, refused to bargain with the Union with, respect to the working schedules of pit crane hands in Department 180. There is a minimum of dispute as to the factual situation revealed by the record. In general, the respondent does not deny that it failed and refused, and fails and refuses, to discuss with the Union the several matters embraced by the allegations of the complaint. It defends its conduct in this respect on the grounds that the Board has no jurisdiction to order an employer to bar- gain collectively after the parties have reached a contract; that certain of the matters in question are not proper subjects for collective bargaining; that a so-called "management" clause in the current contract ' between the respondent and the Union reserves to the respondent the right to act unilaterally on mat- ters other than those customarily embraced by the phrase "wages, hours, and working conditions" ; that the established grievance procedure ' must be resorted to before the respondent may properly be charged with the failure to bargain ° This contract, referred to in the record as the 1943 contract , recognized the Union as the bargaining representative of the employees in the unit hereinbefore found to be appro- priate. The clause in question reads as follows Section IV-Management The management of the works and the direction of the working forces , including the, right to, hire, suspend or discharge for proper cause, or transfer , and the right to relieve employees from duty because of lack of work, or for other legitimate reasons, is vested exclusively in the Company, provided that this will not be used for purposes- of discrimination against any member of the Union. The grievance procedure consisted of four steps : (1) the presentation of the grievance to the department foreman by the Union representative; ( 2) grievances not adjusted by the foreman to be reduced to writing and discussed by the Union' s representative and the Department Superintendent ; ( 3) if the Department Superintendent is unsuccessful in adjusting the grievance, then the grievance committee of the Union may present the grievance to a duly designated representative of the management ; ( 4) if, the grievance is not settled by the previous step, then it may be jointly presented to a representative of the management by an International representative of the Union and the grievance com- mittee. The contract further provided as follows : Step 5. Any grievance or dispute involving the interpretation or application of this- 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, collectively; that in at least one instance the Union resorted to the arbitration provided for by the contract, and obtained an unfavorable decision, all of which should i bar a finding of unfair labor practices based upon the respondent's subsequent refusal to bargain on the matter, in view of a provision in the 1943 contract that an award of an arbitrator should be final and binding on the parties ; and that it was not obliged to bargain with the Union while the Union was on strike.' (b) Specific mutters on which the respondent has refused to bargain (1) The Employees' Manual For many years the respondent has issued and delivered to employees copies of a book of rules and instructions. These rules were revised and reissued on May 28, 1945, under the title of Employees Manual. This was done without prior notice to, or consultation with, the Union. Shortly prior to the date of the formal issuance, however, the proposed issuance came to the attention of the Union, and on May 11 the Union wrote the respondent protesting its publication without consulting the Union, and objecting to certain specific rules. On May 31, the Union again wrote the respondent, in part as follows : We have examined the Employees' Manuel (sic) which was recently distributed to all of our members of the Canton and Gambrinus Divisions. We find this Manuel to be in violation of the provisions of the existing contract between the Company and the Union. We further find that it is not in compliance with the provisions of the National Labor Relations Act. Since the Employees' Manuel is the proper subject for a grievance of a general nature, we should like to meet with the duly designated repre- sentatives of the Company at their earliest convenience to register our pro- test against the aforementioned Employees' Manuel' The respondent replied to the Union's last letter on June 4, in part as follows: You also stated in your letter that you thought that the Employees' Manual was a proper subject for a grievance of a general nature. To this contract not adjusted in the preceding steps shall be submitted to arbitration under the rules of the American Arbitration Association, provided, however, that a. The Company may elect in any particular case to have the grievance or dispute considered, before it is submitted to arbitration, by the President or a director of the Company with the International President of the International Union or any one of the Assistants to the International President, or the International Secretary of the International Union, and, - b By mutual consent of both parties the grievance or dispute may be submitted to arbitration at any stage in the grievance procedure. The award of the arbitrator shall be final and binding on both parties and the expenses of the arbitration shall be borne equally by them. A strike took place on October 15, 1945, which was concluded during the course of the hearing. The 1943 contract contains a no-strike, no-lockout clause. The circumstances surrounding the calling of the strike are hereinafter related. 'The Union particularly objected to the "voluntary quit" rule, which provided that an unauthorized absence of 7 days by an employee would be treated as a voluntary quitting of employment. No rule of this nature was in effect at the time the 1943 contract was signed In addition to this rule, rules on the following subjects were included in the Manual which were not included among the rules existing at the execution of the contract : unauthorized absences,of less than 7 days; threatening or interfering with fellow employ- ees , deliberately restricting output or persuading others to do so; the making of false or malicious statements concerning any employee, the respondent, or its products ; loafing on the job and repeated violations of conduct or safety rules. The record also discloses that other rules existing at the time of the execution of the contract were amended so as to increase the severity of the penalty for their infringement. I THE. TIMKEN ROLLER BEARING COMPANY 513 statement, we do not agree. It is a generally and widely recognized function of management to prescribe the rules of conduct of employees in connection with their employment. You stated' in the last paragraph of your letter that you wished to protest and discuss the forms which have been prepared in connection with "leaves of absence." This is likewise a rule of conduct matter and in itself is not a proper subject of grievance on the part of the Union. Under the circumstances, we cannot see that any sound purpose would be served in having the type of meeting you propose and we must therefore decline to consider the matters referred to in your letter of May 31st as the legitimate subject of a grievance of a general nature. On June 13, the Union requested the American Arbitration Association to arbitrate the issue. The respondent, although at first refusing to refer the matter to arbitration, subsequently consented that there be submitted the ques- tion of whether the matter was arbitrable within the meaning of the 1943 con- tract. On July 2, the Union filed its original charge herein and later attempted to withdraw from the arbitration proceedings. The arbitrator issued a decision on November 10, 1944 holding, in effect, that these rules were simply a guide for the benefit of employees and supervisors and were not "definitive," in that these rules did not prejudice the right of the Union to protest any specific penalty assessed He found, therefore, that the issuance of the Manual did not constitute a violation of the terms of the contract between the Union and the respondent. He did not decide whether or not the issuance of the Manual with- out consulting the Union was a refusal to bargain. He specifically stated he had interpreted the question only within the framework of the contract. The respondent now contends that it has discharged its obligation to bargain collectively on this issue by following the grievance procedure "to the terminal point agreed upon in the contract." (2) Overtime work During the week following V-J Day, August 14, 1945, the respondent discon- tinued its 48-hour schedule for employees in the Canton and Gambrinus plants, with the exception of a number of employees in certain departments, and reverted to a 40-hour week. About 25 percent of the employees in about 80 percent of the departments worked overtime during the week beginning August 19. This num- ber, instead of decreasing as contemplated, increased to the point where, by October 7, approximately 50 percent of the employees in approximately 95 percent of the departments were working overtime. The respondent insists that employees were not required to work overtime and that the foreman merely "offered" work to employees who volunteered for it.' 8 G. H Turner, supervisor of labor relations, testified as follows concerning the method of obtaining overtime work. Q. Now, are you familiar with the matter of offering overtime _o employees in various departments of both the bearing plant and the steel division in Canton and Gambrinus? A. Yes. Q And on what basis, to your knowledge, was that offered to employees? A On a voluntary basis, either daily or weekly. Q. And by a voluntary basis, you mean what? A. The employee is asked whether or not he will work overtime, and depending upon his consent, he works or he does not work. Q. Would there be any penalty involved if the employee failed to show up on one of these days that overtime was offered'? A. No there would not. 514 DECISIONS OF NA CTONAL LABOR RELATIONS BOARD The Union was not consulted about this progressive increase in working hours for a substantial percentage of the respondent 's employees, nor about the method of supplying its overtime needs. On September 10 the Union wrote the respond- ent protesting the increased work schedule, and stating that the employees would work the 48-hour schedule for a week, but that, beginning on September 17, "all members will be instructed to report for work on the work schedules as provided by the contract-five days per week, eight (8) hours per day, Monday through Friday." No change in the respondent's work schedule back to a uniform 40 hours per week having occurred by Saturday, September 22, a day when employees were generally asked to work overtime, a picket line was thrown around the departments in controversy with the result that only about 2 percent of the employees in these departments reported for work on that day. The respondent urges as a defense that the employees were willing to work overtime but that the Union refused to allow them to do so, and that since no grievance was filed by any aggrieved employee, there was a failure on the part ,of the Union to resort to collective bargaining in the manner prescribed by the contract between the parties.° - (3) The grievance in Department-180 The processing of a grievance concerning an alleged change in the hours of work of employees in Department 180 was interrupted by a strike This grievance had gone through the four steps of the grievance procedure and 'a demand for arbitration bad been made by the Union. On October 19 the respondent notified the American Arbitration Association of the strike, asserting its belief that the strike was called in breach of the Union's contract, stated that it did not intend to proceed with performance under the contract, and requested that the arbitration hearing be postponed until the strike was terminated. On No- vember 19 the respondent wrote the Association and the Union advising them that the respondent was ready to proceed with the hearing The respondent, in its brief, urges in its defense that there was no refusal to bargain, but "merely a proper, insistence that bargaining proceed in the manner agreed upon " The respondent argues that the strike was in violation of its contract with the Union and that the respondent was relieved of any duty to bargain with the Union until its employees returned to work. 'The contract provisions concerning overtime are as follows : The normal hours of work shall be eight ( 8) per day and forty ( 40) per week. The daily hours of work shall be consecutive except for such rest periods as may be provided in accordance with practices heretofore prevailing in the plants of the Company. There shall be no change in the daily hours of work unless such change be first mutually agreed upon between the Company and the Union Hours worked in excess of eight ( 8) consecutive hours or in excess of a total of forty ( 40) hours in a work week shall be paid for at one and one-half times the normal rate of pay. Overtime payment shall be made on the basis of either daily or weekly overtime hours worked , but an employee shall not be paid both daily and weekly overtime for the same overtime hours worked A normal work week shall be five ( 5) consecutive work days within seven ( 7) consecutive days. By mutual agreement between the Plant Grievance Committee and local plant management, employees who fail to complete the average hours worked in the department in which they are employed up to forty ( 40) hours in the five work days within the work week, may be permitted , if work is available , in the department in which they are regularly employed , to make up time lost on the sixth or seventh day within the work week up to a maximum of forty (40) hours at their regular rates of pay without the payment of overtime Plant operations as far as possible will be arranged on the basis of three (3) eight ( 8) hour turns per day, five ( 5) days per week, Monday throughO' riday. THE TIMKEN ROLLER BEARING COMPANY 515 (4) The sub-contracting of work For many years the respondent has followed a policy of sub-contracting certain jobs, both maintenance and production, to other employers.10 A substantial number of these jobs are done in the respondent's own plants by skilled craftsmen, including millwrights, electricians, carpenters, painters, and welders, in the employ of the sub-contractor. Inasmuch as they are not employees of the re- spondent they are not within the unit represented by the Union. Others in the same crafts, however, are employed by the respondent and are included within the unit. Albert Donze, vice-president in charge of manufacturing, testi- fied that these employees are not sufficient in number to do all the work on the jobs requiring their particular skills On October 11, 1945, the Union wrote the respondent requesting a collective bargaining meeting to discuss' this issue The respondent, in a letter dated October 15, 1945, denied the request on the ground that the practice of sub- contracting work was exclusively a management affair and was not a proper subject for discussion with the Union. In its brief, the respondent contends that there is "nothing in the contract that precludes the Company from sub- contracting work," and inquires : "How are the contract rights, the management of the works and the direction of, the working forces, which are vested ex- clusively in the Company, to be given any effect if the determination of how work is to be done can only be resolved after there has been Union approval on the subject?" It insists that "an employer need not discuss every phase of the Company's business with the Union simply because a statement has been made by the Union that contemplated Company action affects `condition(s) of employment' . . . By this specious reasoning any matter can be made the subject of collective bargaining." (5) Insufficient employees in the 10-inch mill On October 13, 1945, the respondent's employees on the night shift in the 10-inch mill in the Gambrinus plant quit work in protest against a shortage of men on the shift. Here, as in the grievance relating to Department 180 the respondent urges as a defense that the strike action taken by the Union serves to free the respondent from any duty to bargain with the Union about the causes of the strike until the employees return to work. The respondent says in effect that it has the right to insist that bargaining be done in the orderly manner contemplated by the agreement arrived at as the result of collective bargaining, and that since no grievance was filed until after the strike the respondent was not bound to discuss the matter prior to the filing of such grievance. (6) The maintenance workers' schedule Beginning on October 7, 1945, the respondent changed the work schedule of maintenance employees in the bearing mills at Canton and Gambrinus with the result that some of the maintenance work was required to be done on Saturdays 10 A list of 91 such sub -contractors was received in evidence , with whom the respondent is now doing business , Albert Donze , vice-president in charge of manufacturing , testified that "approximately $2,000 ,000 worth of tools and equipment were sub-contracted to out- side concerns . Even back in 1919 and the early part of 1920." While the record contains no evidence as to the value of work now performed by sub-contractors, apparently it has increased rather than decreased At the time of the hearing approximately 200 men, employees of at least 6 companies other than the respondent, were performing work of various kinds in the respondent's plants. 712344-47-vol. 70-34 ,516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Sundays." On Saturday, October 13, the employees affected by the change were told to report for work on that day, and were advised that if they did not show up they would not be permitted to work on the following Monday No employees reported for work on Saturday. When they reported for work on Monday, they were sent home. The respondent defends its failure to discuss the change in its work schedule with the Union, on the ground that since no grievances were filed on the subject of the change in schedule and since a strike was called by the Union as the result of the respondent's action in disciplining its employees, the respondent was not bound to bargain with the Union until and unless the Union followed the grievance procedure and called off the strike. (7) The pit-crane hands In September, 1945, a grievance was filed by certain employees in Department 199 concerning the practice of providing spell hands for pit crane operators. This grievance was decided adversely to the Union by the foreman and superintendent of the department, and on October 8 the Union requested a combined.Step 3 and Step 4 meeting with C A. Blackmon, the respondent's superintendent of labor relations. The respondent, on October 10, acceded to this request and a meeting was set for October 18. The strike intervened on October 15. On the following day the respondent wrote the Union that the meeting was "postponed, provided employees on strike in our plants have not returned to work on their jobs by such time." The strike not having been terminated, the meeting was not held on the day scheduled. On November 19, 3 days after the termination of the strike, the respondent advised the Union that the conference on the grievance could be proceeded with "at a mutually convenient time after the National Labor Relations Board hearing is concluded." The processing of a grievance concerning an alleged change in the hours or work of employees in Department 180 was similarly interrupted by the strike. This grievance had gone through the four steps of the grievance procedure and a demand for arbitration had been made by the Union. On October 19 the respond- ent notified the American Arbitration Association of the strike, asserted its belief that the strike was called in breach of the Union's contract, stated that it did not intend to proceed with performance under the contract, and requested that the arbitration hearing be postponed until the strike-was terminated. On November 19, the respondent wrote the Association and the Union advising them that the respondent was ready to proceed with the hearing. The respondent, in its brief, urges in its defense that there was no refusal to bargain, but "merely a proper insistence that bargaining proceed in the manner agreed upon." The respondent argues that the strike was in violation of its contract with the Union and that the respondent was relieved of any duty to bargain with the Union until its employees returned to work. Conclusions The respondent contends that the facts set forth above do not, when taken together, amount to a failure on its part to bargain collectively with the Union. The issues raised by the record, and argued extensively in the briefs filed by the parties, reveal a wide divergence between the Union's conception,of the collective bargaining relationship and that of the respondent. The undersigned believes " The revised schedule for maintenance employees was the same as that which had been In effect before the war. THE TIMKEN ROLLER BEARING COMPANY 517 that the respondent fundamentally misconceives its obligations in the collective bargaining process.1' Many of the respondent's contentions may be disposed of by a reference to the general principles underlying the collective bargaining relationship as they have been developed by the Board and the Courts. With respect to the contention that the execution of a contract is the "end result" of collective bargaining, and its corollary that thereafter the Board has no jurisdiction to order an employer to bargain, the Board has frequently held 13 that the execution of a collective contract does not end the process of collec- tive bargaining, and that the interpretation and administration of a contract already made and the settlement of disputes arising under any such contract are properly regarded as within the sphere of collective bargaining. That collective bargaining does not end with the signing of a contract has been held by the Supreme Court in the Sands case," and by Circuit Courts of Appeals in various cases. " In the Newark Morning Ledger case the court said : There is nothing in the Act to indicate that its framers intended that its force should be expended after it had once operated to cause an employer to bargain collectively with his employees. In our view, if Congress had intended that the duty to bargain collectively which it imposed should be limited in duration-it would have so provided in clear and specific terms, and that collective bargaining is thus seen to be a continuing process by which, as the law now recognizes, the relationship between the employer and the employee is to be molded and the terms and conditions of employment frequently modified along lines which are mutually satisfactory to all concerned. Consistently with these principles, the Board has condemned refusal by employers to bargain collectively concerning the disposition of grievances both before '0 and after 17 execution of written agreements. The grievances thus found 12 The specific defenses of the respondent , previously set forth , are re -stated in its brief in 3 "basic pioposition" . (1) The purposes of the Act are to insure collective bargaining and the making of collective bargaining agreements between employers and labor organizations certified as representing the majority of the employees of such employers. (2) It is not a purpose of the Act to supervise compliance with collective bargain- ing agreements. (3) It is not a purpose of the Act to condone or encourage unlawful conduct such as breaches of collective bargaining contracts. 18 Matter of Consolidated Aircraft Corporation, 47 N. L. It. B. 694, at p . 706. See also, Matter of Rapid Roller Co., 33 N. L. It. B 557; Matter of Carroll's Transfer Company, 56 N. L. It. B 935; Matter of Hughes Tool Company, 56 N. L. R B. 981 ; Matter of U. S. Automatic Corporation , 57 N. L. It. B. 124 ; Matter of The Alexander Milburn Company, 62 N. L It. B. 482 14 N. L. R. B. v Sands Mfg. Co., 306 U. S. 332. 35 See N. L R B v. Newark Morning Ledger Co., 120 F. ( 2d) 262 (C C. A 3), cert. denied 314 U S 693, N L R B v Highland Shoe, Inc, 119 F (2d) 218 (C. C. A 1) ; N L R B v Highland Park Mfg Co., 110 F (2d) 632 (C C. A 4) 1° Matter of Railway Bearing Co., Inc., 1 N. L. R B. 651 ; Matter of The Boss Manufac- turing Company, 3 N. L. R B. 400 ; Mattes of American Hair d Felt Company, 19 N. L. It. B. 202, Matter of Hoosier Veneer Coin pony, et al., 21 N. L. R. B 907 , Matter of The Arundel Corporation, 59 N. L R B. 505; Matter of Inter-City Advertising Co., 61 N L. It. B 1377; Matter of Ross Gear and Tool Company, 63 N. L. It. B. 1012. 17 Matter of Rapid Roller Co., 33 N. L. It. B. 557 ; Matter of Hughes Tool Company, 56 N. L. It. B. 981 ; Matter of U. S. Automatic Corporation , 57 N. L. R B 124; Matter of The Alexander Milburn Company, 62 N. L. It. B. 482. 518 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD Jo be within the scope of collective bargaining have included changes in work schedules, as in the Inter-City case, cited above. In that case the employer rearranged the working hours of transmitter operators, a change which made necessary the discharge of one operator . Later, another operator was trans- ferred from work on the transmitter to the control room, and another employee hired to take his place on the transmitter. These changes were made unilaterally by the employer through arrangements with the individual employees concerned and, in the instant case, without consulting the Union. The Board found that the employer had failed to bargain collectively. Without attempting generally to delimit the subject matter properly included within the scope of collective bargaining,'e it seems apparent that the respondent's system of sub-contracting work fray vitally affect its employees by progressively undermining their tenure of employment in removing or withdrawing more and more work, and hence more and more jobs, from the unit. Of equal concern to the employees are the rules which regulate their everyday life in the factory, and the hours they are asked or required to work. It is the respondent's duty to sit down and discuss these matters with the Union when requested to do so.19 During such discussion it may develop, for example, that the Union will engage to supply sufficient skilled labor in the crafts in question, so that more work may be clone by the respondent's employees and less by workers outside the unit; it might be that the respondent will convince the bargaining representative that there is no reasonable alternative to a continuation of the respondent's present practice in this respect; or some other and presently unthought of solution.agree- able to both parties may suggest itself. On none of the issues now dividing the parties is the respondent compelled to reach an agreement with the Union Much less, as the respondent's brief seems to imply, would it be required to accede in toto to the demands of the bargaining ,representative The requirement is that the respondent consult with the Union and explore in good faith the possibility of reaching an agreement so that, in conformity with the purposes of the Act, the matter may be removed, so far as is possible, as a cause of Industrial strife. The authority of the Union to represent the employees stems iron the fact of its majority status, and is statutory rather than contractual in character. The choice of a bargaining agent by a majority of the employer's employees does not ni and of itself require that the employer make any change in,wages, hours of em- ployment, or other conditions of work However, if he decides, subsequent to the time the union is designated, that he wishes to raise or lower their rate of pay, lengthen or shorten their hours of work, or institute a different system of - seniority, he no longer remains. free simply to announce such new conditions and rules as suit him Even though the union has not yet approached him for col- 1" It may be noted , however, that unions have come to bargain with employers on various subjects which were formerly deemed , to be reserved as management prerogatives. In the ladies' garment industry, agreements with the union "specify the conditions under which an employer .may reorganize his business, or enter into another partnership , or send mate- rials to other firms for fabrication, or introduce a work-week as opposed to a piece-work basis of wage payments " Pierson, Collective Bargaining Systems (1 942) 32; Carsel, A History of the Chicago Ladies Garment Workers Union ( 1940 ) 226-228 ; U. S. Bureau of Labor Statistics, Bull. No 686 (1942 ) 214-216 In coal mining , the unions participate in the control of "All aspects of the productive process which affect the miner 's opportunity to earn a living." Saffern, The Coal Miners' Struggles for Industrial Status (1926) 359, 376 1" The sub-contracting of work was done pursuant to a policy adopted by the respondent prior to the advent of the bargaining representative . Hence there is no question of unilat- eral action taken without consultation with the Union in the first instance The failure to bargain dates from October 15, 1945, when the respondent replied to the Union' s letter of Octobei 11 on this subject THE TIMKEN ROLLER BEARING COMPANY 519 lective bargaining conferences lie must notify it of a contemplated change and offer to bargain with it about the matter20 Similarly, the employer can no longer make the adjustment by individual, bargaining, as it attempted to do in this case when it individually "offered" employees overtime work The respondent's contention that the "management clause" in the 1943 con- tract served to relieve it of the necessity for bargaining with the Union as to such matters which may come under a broad interpretation of this clause, is without merit. Without discussing whether or not more specific language in the contract would have given the respondent the right to refuse to bargain as to such matters as are found to be violations of Section 8 (5) herein, the undersigned finds that the "management clause" as presently written cannot in any event properly be construed to cover the situation here for the reason that it is not specific but is, on the contrary, vague and uncertain To construe the phrases "management of the works" and "direction of the working forces" as a grant of power to the respondent unilaterally to change the working conditions or hours of employment, would slake a nullity of Section 8 (5) of the Act It cannot be supposed that the Union relinquished its right, granted by the Act, to bargain for the employees at any time by such language as this. It may be assumed, as the respondent has indicated, that "an employer need not discuss every phase of the Company's business with the Union ..." However, this may be, it is clear to the undersigned that its failure and refusal to do so as to the matters herein involved is violative of the purpose of the Act. Nor does the fact that none of the respondent's employees has filed a grievance in connection with the overtime work dispute, or other disputes, affect the re- spondent's responsibility to bargain upon such issues when requested to do so by the Union It is doubtful that any employee of the respondent would feel aggrieved by the there offer of overtime work which he was privileged to accept or refuse The employees as a group, however, might consider themselves seriously affected by a system which lengthened the work week foi some but not for others, and might reasonably feel that their group solidarity was threatened by the introduction within the group of a competition destructive of collective action. As the Supreme Court pointed out in J. I. Case: 21 The practice and philosophy of collective bargaining lookS, with suspicion on such individual advantage, . . . advantages to individuals may prove as disruptive of industrial peace as disadvantages. They are a fruitful way' of interfei ing with organization and choice of representatives ; increased compensation, if individually deserved, is often earned at the cost of breaking down some other standard thought to be for the welfare of the group, and always creates the suspicion of being paid at the long range expense of the group as a whole. Such discriminations not infrequently amount to unfair labor practices. The workman is free, if he values his own bargaining posi- tion more than that of the group, to vote against representation; but the majority rules, and if it collectivizes the employment bargain, individual advantages or favors will generally in practice go in as a contribution to the collective result. The court further pointed out in the Railroad Telegraphers case :.22 . . . exceptional situations often have an importance to the whole be- cause they introduce competitions and discriminations that are upsetting 20 For an extended discussion of the relationship between,the employer and the union after the designation of a union as collective bargaining representative , see- Majority Rule in Collective Bargaining, by Ruth Weyand, in Columbia Law Review, Vol XLV, page 556 (July 1945) 21 J. I. Case Co. v. N. L. R. B., 321 U. S. 332, at p. 338. 22 The Order of Railroad Telegraphers v. Railway Express Agency, Inc ., 321 U. S. 342, 346-7. 520, DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the entire structure. Hence effective collective bargaining has been generally conceded to include the right of the representatives of the unit to be consulted and to bargain about the exceptional as well as the routine rates, rules, and working conditions . . . But the company did not observe the right of the representatives- of the whole unit to be notified and dealt with concerning a matter which from an employee's point of view may not be exceptional or which may provide a leverage for taking away other advantages of the collective contract. In short, after the advent of the collective bargaining representative, not only does unilateral action by the employer taken without consultation with the bar- gaining agent, on any matter relating to rates of pay, wages, hours of employment, or other conditions of employment, become' proscribed, but so does bargaining with any individual employee. With the certification of the bargaining representative, the establishment of working conditions in a plant becomes, in effect, a governmental process. In Steele v. Louisville d Nashville R. Co.,3 the court held, with respect to the Rail- way Labor Act : We think that the Railway Labor Act imposes upon the statutory repre- sentative of a craft at least as exacting a duty to protect equally the interests of the members of the craft as the Constitution imposes upon a legislature to give equal protection to the interests of those for whom it legislates. Congress has seen fit to clothe the bargaining representative with powers comparable to those possessed by a 'legislative body both to create and restrict the rights of those whom it represents . . . Instead of performing only the limited function of periodically fixing the'rules governing employment as the respondent views it, collective bargaining has come to mean a system whereby employees participate through democratically chosen representatives in the control of their conditions of employment, not merely in making the rules but in their interpretation and execution. The sub- stitution of this process for direct negotiations between employer and employee eliminates the autocratic power of the employer and establishes in the plant a form of industrial democracy, paralleling and implementing the political democ- racy which the employee enjoys outside the plant. That the establishment of working conditions in industry is, after the advent of the collective bargaining representative, essentially,a governmental process, was noted by the Court in N. L. R. B. v. Highland Park Mfg. Co .24 where it was . held : The purpose of the written trade agreement is, not primarily to reduce to writing settlements of past differences, but to provide a statement of principles and rules for the orderlp government of the employer-employee relationship in the future. The trade agreement thus becomes, as it were, the industrial constitution of the enterprise, setting forth the broad general principles upon which the relationship of employer and employee is to be conducted. Wages may be fixed by such agreements and specific matters may be provided for; bn* the thing of importance is that the agreement sets up a modus vivendi, under which employer and employee are to carry on. It may be drawn so as to be binding only so long as both parties continue to give their assent to it; but the mere fact that it provides a framework within which the process of collective bargaining may be carried on is of incalculable value in removing the causes of industrial strife. If reason and 23 323 U. S. 192. @4110 F. (2d) 632 (C. C. A. 4). THE TIMKEN ROLLER BEARING COMPANY 521 not force is to have sway in industrial relationships, such agreements should be welcomed by capital as well as by labor. They not only provide standards by which industrial disputes may be^'adjusted, but they add dignity to the position of labor and remove the feeling on the part of the worker that he is a mere pawn in industry subject to the arbitrary power of the employer. [Italics supplied.] Nor are the obligations of the employer, as outlined above, changed by the intervention of a strike. The exclusive right to handle grievances for employees within the unit is not something which the respondent has granted the Union as a concession, or in trade for a consideration, to be withdrawn if the consideration fails, but a right given the bargaining agent by the Act. As the Board held in the Columbian Enameling case," where the Union called the employees on strike during the life of a contract containing a no-strike clause: Employees do not cease to be such because they have struck. Collective bargaining is an instrument of industrial peace. The need for its use is as imperative during a strike as before a strike By means of it a settle- ment of a strike may be secured. To hold that the respondent was under no obligation to discuss with the Union the grievances of employees on strike would be to relegate them to the position of having to bargain individually with their employer, or to 'leave grievances unredressed. Neither of these alternatives is tenable. The right of the re- spondent's management to speak for the respondent on corporate matters would not be affected by a contract violation by the management. So here, the Union remained'the sole bargaining agent of the respondent's employees within the unit, regardless of whether the strike of October 15 was in violation of the Union's contract. If the respondent felt itself legally injured by the act of the Union in calling the strike, it could have sought such redress as local or State laws might have afforded it. It was not within its province to attempt to dis- cipline the collective bargaining representative of its employees by refusing to accord it the recognition guaranteed by the Act. The undersigned finds that the respondent, by unilaterally issuing an em- ployees' manual, or rule book,20 without consultation with the Union and by refusing to discuss the matter with the Union ; by requesting the employees to work overtime without consultation with the Union ; by unilaterally effecting a change in the working conditions of the employees in Department 180 and re- fusing to discuss the matter with the Union; by refusing to negotiate with the Union regarding the sub-contracting of work; by refusing to bargain concerning a lack of sufficient employees in the respondent's 10-inch mill ; by refusing to, bargain concerning the working schedules of maintenance employees; and by refusing to bargain with the Union with respect to the working schedules of pit crane hands in Department 180, the respondent has failed and refused to bargain collectively, and has thereby interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. 25 N. L. R B. v. Columbian Enameling and Stamping Co., 306 U. S. 292 , affirming 96 Fed. (2d ) 948 (C. C. A 7), setting aside 1 N L. it. B 181 on other grounds. See also: N. L. R B. v. Reed & Prince Mfg. Co., 118 F. ( 2d) 874 (C C A. 1), enforcing 12 N. L. it. B. 944, cert. denied 313 U. S 595 20 Cf. Matter of The Emerson Electric Manufacturing Company, 13 N. L R. B. 448. In this case the complaint alleged the unilateral issuance of a rule book as a violation of Section 8 ( 1) of the Act as constituting "interference , restraint , and coercion " The Board, in the circumstances of the case , found that the respondent 's issuance of the rule book was not violative of Section 8 (1) of the Act. Whether it constituted a refusal to bargain in violation of Section 8 (5) of the Act was not in issue. •522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Interference, restraint, and coercion 1. The bulletin board issue In accordance with the -terms of the 1943 contract, the Union maintains bulletin boards in the plant for notices "pertaining exclusively to Union affairs " From time to time plant 'police have removed from these boards material which the respondent's officers have deemed not to pertain "exclusively" to union matters'? These removals have been made pursuant to the joint decision of three of the respondent's higher supervisory employees, who instituted a com- mittee for that purpose, without consultation with the Union. The Union urges that the respondent's failure to consult with it prior to removing material from the boards constitutes interference, restraint, and coercion. The undersigned does not agree. True, the respondent's failure to consult with the Union is of a piece with its narrow conception of its obliga- tion to bargain collectively. But if the respondent will bargain in good faith with the Union upon all natters pertaining to the working conditions of its employees, controversies such as that pertaining to the bulletinf boards will not be likely to arise, or, if they arise, are more likely to be resolved in a coopera- tive spirit without the intervention of the Board. In the meantime, and in the absence of any clear evidence that the respondent intended to disparage the Union, the undersigned finds that by its actions in connection with the bulletin boards the respondent did not engage in any unfair labor practice. There is some evidence in the record that the respondent construed over- strictly the check-off provisions of the 1943 contract, by insisting upon the correct spelling of the names of union members submitted to it, and other evidence that on isolated occasions certain foremen made disparaging remarks concerning the Union and that one foreman instructed another supervisory employee to watch a union member. The evidence falls short, however, of supporting a finding that the respondent thereby interfered with, restrained, and coerced its employees. It is hereinafter recommended that the complaint be dismissed as to these matters. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III, above, occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and have led 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 certain unfair labor prac- tices, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action which the undersigned finds will effectuate the policies of the Act. It has been found that the respondent has refused to bargain-collectively with the Union as the representative of its employees in an appropriate unit. In order to effectuate the policies of the Act, the undersigned will recommend that, upon request, the respondent bargain collectively with the Union as the 27 On one occasion the plant police, on instructions from management , removed an article praising a candidate for political office favored by the Union and attacking his opponent. On another occasion, appeals directed to members of the Union urging them to contribute to Red Cross drives and'blood banks were similarly removed. THE TIMKEN ROLLER BEARING COMPANY 523, exclusive representative of its employees in the appropriate unit, in respect to rates of pay, wages, hours, and other terms and conditions of employment, and specifically that it bargain collectively with respect to the employees manual, the question of overtime, the changing of working conditions in Department 180r the sub-contracting of work, the lack of sufficient employees in the 10-inch mill, the working schedules of the maintenance employees, and the working schedules of the pit-crane hands. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the undersigned makes the following: CONOLUSIONS OF LAW 1. United Steelworkers of America (C. I. 0 ), is a labor organization within the meaning of Section 2 (5) of the Act. 2. All production and maintenance workers in the respondent's bearing, steel, and tube plants at Canton, Ohio, its bearing, steel, and tube plants at Gam- brinus, Ohio, and its plants at Wooster, Mt. Vernon, and Columbus, Ohio, excluding foremen, assistant foremen, or supervisors in charge of any class of labor, bricklayers, watchmen, guards, factory clerks or other clerical workers and salaried employees, constitute a unit appropriate for collective bargaining within the meaning of Section 9 (b) of the Act. 3. United Steelworkers of America (C. I. 0.), was on July 14, 1942, 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 refusing to bargain collectively with United Steelworkers of America ,(C. I 0.), as exclusive bargaining representative of the employees in the appropriate unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8-(1) of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and,conclusions of law, the undersigned recommends that The Timken Roller Bearing Company, its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with United Steelworkers of America (C. I. 0.) as the exclusive representative of all production and maintenance employees in the respondent's bearing, steel, and tube plants at Canton, Ohio, its bearing, steel, and tube plant at Gambrinus, Ohio, and its plants at Wooster, Mt. Vernon, and Columbus, Ohio, excluding foremen, assistant foremen, or supervisors in charge of any class of labor, bricklayers, watchmen, guards, factory clerks or other clerical workers, and salaried employees, in respect to rates of pay, wages, hours of work, and other conditions of employment, and particularly with respect to the employees manual, the question of overtime, the change of working conditions in Department 180, the sub-contracting of work, the lack of sufficient employees in the 10-inch mill, the working schedules of the maintenance employees and the working schedules of the pit crane hands, upon all of which it has been found that the respondent has failed or refused to bargain ; (b) Unilaterally making changes without consulting the Union referred to above with respect to rates of pay, wages, hours of work, and other conditions 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of employment and particularly with respect to such matters referred to in paragraph 1 (a) above; (c) Any other acts in any manner interfering with the efforts of United Steel- workers of America ( C. I. 0.) to negotiate on behalf of the respondent 's employees in the appropriate unit ; 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act; (a) Upon request, bargain collectively with United Steelworkers of America {C. I. 0) as the exclusive representative of all production and maintenance employees in the respondent 's bearing, steel, and tube plants at Canton, Ohio, its bearing, steel, and tube plants at Gambrinus , Ohio, and its plants at Wooster, Mt. Vernon , and Columbus, Ohio, excluding foremen, assistant foremen, or super- visors in charge of any class of labor, bricklayers, watchmen, guards, factory clerks, or other clerical workers , and salaried employees, in respect to rates of pay, wages, hours of work and other conditions of work, and specifically that it bargain collectively with respect to the employees manual , the question of overtime, the changing of working conditions in Department 180, the sub -contract- ing of work, the lack of sufficient employees in the 10-inch mill , the working schedules of the maintenance employees and the working schedules of the pit crane hands ; (b) Post immediately in conspicuous places throughout its Canton , Gambrinus, Wooster, Mt. Vernon, and Columbus , Ohio, plants, copies of the notice attached hereto and marked "Appendix A." Copies of said notice , to be furnished by the Regional Director for the Eighth 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 the respondent customarily posts notices to its employees. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material ; (c) File with the Regional Director for the Eighth Region on or before ten (10) days from the receipt of this Intermediate Report, a report in writing setting forth in detail the manner and form in which the respondent has complied with the foregoing recommendations. It is further recommended that unless on or before ten (10 ) days from the receipt of this Intermediate Report the respondent notifies the Regional Director in writing that it will comply with the foregoing recommendations , the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. It is further recommended that the allegations of the complaint be dismissed insofar as they allege that the respondent interfered with, restrained, and coerced its employees by tearing down material from thei Union's bulletin boards, by refusing to check off the dues of employees , by making statements in disparage- ment of the Union, and by engaging in surveillance. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended , effective November 27, 1945, any party or counsel for the Board may, within fifteen (15) days from the date of the entry of the order transferring the case to the Board , pursuant to Section 32 of Article II of said Rules, and Regulations , file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing,, setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding ( including rulings upon all motions or objections ) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of THE TIMKEN ROLLER BEARING COMPANY 525 exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. HORACE A. RuoKEL, Trial Examiner. Dated February 6, 1046. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: We will not refuse to bargain collectively with the United Steelworkers of America (C I 0.) as the exclusive representative of the employees in the unit described below. We will not unilaterally make any changes with respect to rates of pay, wages, hours of work, and other conditions of employment, and particularly with respect to the Employees' Manual, the question of over- time, the change of working conditions in Department 180, the sub-con- tracting of work, the lack of sufficient employees in the 10-inch mill, the working schedules of the maintenance employees and the working schedules of the pit crane hands, without prior consultation with the Union referred to above. We will not in any manner interfere with the efforts of the United Steel- workers of America (C. I 0.) to negotiate on behalf of our employees in the appropriate unit. - We will bargain collectively with United Steelworkers of America (C. I. 0 ) as the exclusive representative of our employees in the bargain- ing unit described below. The bargaining unit is : All production and maintenance employees in our bearing, steel and tube plants at Canton, Ohio, our bearing, steel and tube plants at Gambrinus, Ohio, and our plants at Wooster, Mt. Vernon and Columbus, Ohio, excluding foremen, assistant foremen, or supervisors in charge of any class of labor, bricklayers, watchmen, guards, factory clerks, or other clerical workers, and salaried employees ------------------------------ Employer. By ------------------------------ (Representative ) (Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.