Old Line Insurance Co. of America

OLD LINE LIFE INSURANCE COMPANY OF AMERICA 499, OLD LINE LIFE INSURANCE COMPANY OF AMERICA and ASSOCIATEn. UNIONS OF AMERICA , INSURANCE EMPLOYEES LOCAL 65. Case No- 13-CA-608. September 27, 1951 Decision and Order On April 23, 1951, Trial Examiner C. W. Whittemore 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 they cease and desist therefrom and_ take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed- exceptions to the Intermediate Report and a supporting brief., The Board has reviewed the rulings of the Trial Examiner 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 brief, and the entire record in the- case, and hereby adopts the findings, conclusions, and recommendations- of the Trial Examiner only insofar as they are consistent with our decision.2 1. The Trial Examiner found that the Respondent, in violation of Section 8 (a) (5) and (1) of the Act, refused to bargain in good faith with the Union respecting a job evaluation plan, the revision of an existing pension plan, the modification of expiring contractual pro- visions concerning promotions, job vacancies, and seniority, and the. furnishing of certain wage information. We do not agree. The facts giving rise to the charges herein are substantially undis- puted and are briefly these : Since about 1946 the Respondent recog- nized the Union as the exclusive bargaining representative of its office employees pursuant to successive contracts. In accordance with the terms of their last agreement which was about to expire, the Union served notice on the Respondent on February 28, 1950, that it desired to. amend the agreement, proposing for consideration, among other things, union security, a wage increase, a job evaluation program, a new pro- motion, transfer, and job vacancy policy, vacations, and a revised pension plan. Nine bargaining sessions were thereafter held at which As the record, exceptions , and brief adequately present the issues and positions of the parties, the Respondent 's request for oral argument is denied Following the issuance of the Intermediate Report herein the Respondent moved to reopen the record to receive in evidence the Respondent 's minutes of the prestrike bar- gaining sessions to refute some of the Trial Examiner 's findings . The record shows that the Respondent's Vice-President Moore was permitted to use these minutes while testifying to refresh his recollection . For this reason and because the minutes were not newly- discovered evidence , the General Counsel opposes the motion. As the pFo$ered evidence is cumulative and was available at the -time of the hearing, we find no valid reason to receive it . We shall therefore deny the motion. 2 We find no basis for the Respondent's charges of bias and prejudice against the Trial! Examiner 96 NLRB No. 66. ,500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD these, as well as other, matters were fully discussed . No agreement having been reached, the Union called a strike on June 26, 1950. Ex- ,cept in the four respects mentioned above, it is not contended that the Respondent otherwise failed in its bargaining obligations. In finding bad-faith bargaining concerning a job evaluation plan, the Trial Examiner seems to rely primarily on the fact that the Re- spondent did not fulfill its contractual obligation to draft a "clearcut ,definition of the, work requirements of the several classifications" and to submit the completed plan to the Union for consideration. How- ,ever, the mere failure to perform a contractual commitment is not necessarily an unlawful refusal to bargain . It is only where such an 'omission is motivated by a desire to delay or prevent bargaining on the matter in question that a bad-faith finding may be made. We are unable to draw such an inference from the facts in this case. The record simply discloses that when the subject of job evaluation was brought up during the negotiations the Respondent explained why the plan was not ready yet. It told the Union that after spending much time exploring a number of plans, it finally selected one, and that it was then obtaining job descriptions from employees which would have to be checked by their supervisors. The Respondent also informed the Union that the task was time consuming 3 and that as soon as,the plan -was completed it would present it to the Union for consideration. There is no evidence that the Respondent at any time refused to bar- gain with the Union concerning a job evaluation plan; nor is there any evidence that the Union proposed one of its own. In these circum- stances, we are not persuaded that the record establishes a refusal to bargain on this subject. With respect to the Union's proposed revision of the pension plan,4 -we find at most an honest disagreement after full discussion of the matter. As indicated in the Intermediate Report, the Union proposed to amend the pension plan so as to provide for vested rights and unibn representation on the benefits committee which administered the plan.' The Respondent, however, declined to make any changes in the plan at that time, stating that it preferred to wait until the disposition of certain social security legislation which was then pending in Congress.6 In our opinion, the Respondent's refusal to accept the Union's pro- posed revisions after full and open discussion does not demonstrate a disregard of its statutory obligation . The Act does not compel either 3 There is no evidence that the Union made any inquiries of the Respondent concerning the latter's delay in presenting a job evaluation plan during the contractual term until shortly before formal negotiations were opened. 4 The pension plan was instituted in 1945 before the Union became the bargaining representative of the Respondent's office employees. " Under the existing plan, the Respondent appointed an employee representative on the committee. 6 According to the undisputed testimony of the Respondent's Vice-President Moore, he explained to the Union how the benefits provided in the pending social security legislation would affect the employees ' rights under the pension plan. OLD LINE LIFE INSURANCE COMPANY OF AMERICA 501 party to agree to the other's proposal. It only requires the parties to confer in good faith. The evidence does not reveal that the Respond- ent did otherwise. Significantly, the Respondent at all times recog- nized that a pension plan was a bargainable matter 7 and, indeed, promptly agreed to incorporate the plan into a contract when the Union requested it for the first time at their meeting of July 11, 1950.8 We also disagree with the Trial Examiner's finding that the Re- spondent negotiated in bad faith concerning promotions, the filling of job vacancies, and seniority.9 The'Union proposed to amend the provision in the then-expiring contract which authorized the Respond- ent to make unilateral promotions. This provision stated that in mak- ing promotions "length of service shall be determinative only when ability, qualifications, and experience are relatively equal. The Com- pany shall be the judge of ability, qualifications, and experience of all employees." Specifically, the Union asked in its February 28 letter for a job-posting procedure so that the Union may "have the op- portunity to bid on such jobs before they are offered to outside em- ployees or to employees with lesser seniority in the department or Company." The Union also proposed to amend the agreement "to provide a clear-cut definition and expression of adequate seniority provisions and the application of seniority provisions to promotions, transfers" etc. During the negotiations the Union insisted that the Respondent adopt a promotional policy based on seniority and pro- viding for the settlement of disputes resulting from the, application of this policy through grievance and arbitration procedures. The Respondent refused to accede to these demands and offered instead to continue the existing contractual provisions. Unlike the Trial Examiner, we are unable to find on this record that the Respondent's refusal'to change the existing contractual prac- tices was actuated by bad faith, especially since the Union itself was equally adamant in its demand. Moreover, as the Act only requires an employer in good faith to negotiate contemplated promotions and the Union demanded greater rights, including the arbitration of dis- puted cases, the Respondent's rejection of the Union's demands can hardly be regarded as a reflection on its attitude toward the bargain- ing process. Notwithstanding the Respondent's good faith, the question re- ' Cf. Tide Water Associated Oil Company, 85 NLRB 1096. 8 In finding bad-faith bargaining with respect to revision of the pension plan, the Trial Examiner relied on the fact that shortly after the commencement of the strike, the Respondent retreated from its former position and agreed to incorporate the plan into the contract and to grant the Union one representative on the benefits committee However, the record shows -that the Respondent never retreated from its opposition to changing the plan at that time ; that the Union ' s proposal to incorporate the plan into the contract was made for the first time after the strike was called and that the Respondent promptly acceded thereto ; and that the Respondent never agreed to the Union 's selection of an employee representative. These natters were considered together by the parties. 974176-52-vol. 96-33 502 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD mains whether its position on the subject of promotions nevertheless violated Section 8 (a) (5) as a matter of law. It is well settled that an employer does not perform his bargaining obligation if he ada- mantly insists on reserving to himself the right to take unilateral ac- tion with respect to matters affecting wages, hours, or other conditions of employment as to-preclude agreement thereon.10 However, he is not thereby prevented from offering such a proposal as a basis of dis- cussion." Here, the Respondent offered to continue existing contrac- tual provisions as a counterproposal and it appears that it was not so much the Respondent's counterproposal as the Union's uncomprom- ising insistence on the adoption of a promotional policy that pre- vented agreement. Indeed, although during the strike the Respondent receded from its earlier position and, in conformity with its statutory obligation, offered to discuss in advance contemplated promotions but without arbitration of differences, the Union refused to go along be- cause, as International Representative McKinnon testified, the Re- spondent would thereby retain "the right to make the final determina- tion" and "deviations from seniority" could not be taken up through the grievance and arbitration procedures. In these circumstances, we find that the Respondent did not fail in its bargaining obligation with respect to promotions and related matters. Finally, we find that the Respondent did not violate ,the Act by refusing to furnish the Union with certain requested wage data within a reasonable time before the strike.- The uncontradicted evidence shows that at the fifth bargaining meeting on May 9, 1950, the Union for the first time asked the Respondent for a current list of employees, their hiring dates, initial salaries, classifications, and any merit in- creases or promotions received. The Respondent declined to supply this information for the stated reason that it had been following the practice of furnishing the Union with substantially the same informa- tion on a monthly basis 13 In reply to the Union's expressed belief that the data in its possession was not accurate or complete, the Respondent offered to check it against its own records. The Union, however, turned down this offer. The Board has held that an employer is not required to furnish 10 Alabama Marble Company, 83 NLRB 1047. 11 Alabama Marble Company, supra. 12 The Trial Examiner apparently would not have found a violation in this respect absent his other findings. He observed that "this unreasonable delay," when considered in the light of the Respondent's other conduct, "possesses a significance which perhaps would be lacking if it stood alone." 18 A similar demand was made by the Union at a preliminary meeting held on February 8, 1950, which preceded the Union 's request to reopen the contract . The Respondent also denied this demand for the same reason . According to Vice-President Moore 's undisputed testimony , he pointed out to the Union at that time that during the 1949 contract nego- tiations the Union had also asked for similar information, although the Respondent had previously supplied it, and that during those negotiations , the Respondent nevertheless gave the Union a complete list of employees with pertinent information "so that we will not have to be burdened later on" to prepare another list. OLD LINE LIFE INSURANCE COMPANY OF AMERICA 503, information in the exact form requested by the bargaining representa- tive. "It is sufficient if the information is made available in a manner not so burdensome or time-consuming as to' impede the process of bargaining." 14 As the Respondent had previously given the Union substantially the same information as it requested during the negoti- ations, and offered to verify its accuracy, we find that the Respondent fulfilled its statutory obligation in this respect 18 In sum, we find, contrary to the Trial Examiner, that the Respondent did not fail to bargain in good faith before the strike. 2. The complaint also alleges that the Respondent unlawfully re- fused to bargain in good faith during the strike with respect to the above-mentioned matters as well as merit increases and the furnishing of merit rating review data. Because he found an unlawful refusal to bargain before the strike and a resultant unfair labor practice: strike, the Trial Examiner considered it unnecessary to make any- findings concerning the negotiations during the strike. We have carefully examined the evidence and find that it does not sustain these allegations of the complaint. The record shows that the negotiations, which were resumed during the strike at the Union's request, covered substantially the same grounds that were covered in the prestrike negotiations and the Union's new demands. We find no evidence that the Respondent approached the bargaining table other than with a sincere desire to reach an agreement. It fully discussed with the Union the status of the job evaluation program and offered to obtain outside assistance to help complete the job and thereafter to negotiate differences; it agreed to the Union's new proposal to incorpo- rate the pension plan into a contract; it modified its earlier position and agreed to discuss in advance with the Union contemplated pro- motions and offered a similar proposal with respect to merit increases; it furnished the Union with wage data some of which it had previously given to the Union and offered to make available to the Union merit rating review data.16 In view of the foregoing facts we find that, whatever the reason for the parties' inability to reach agreement during the strike, it was not bad-faith bargaining on the Respondent's part. After negotiations stalemated on August 2, 1950, the Union on September 27 requested resumption of negotiations. In reply, the Respondent notified the Union on October 6 that it declined to recognize 14 The Cincinnati Steel Castings Company, 86 NLRB 592, 593 15 Two days after the strike began the Union apparently modified its request for infor- mation by asking for a "list of all nonsupervisory employees together with the monthly salary of each such employees as of May 1, 1950 ." This date was later changed to July 5 to include information concerning strike replacements. The Respondent furniah-d the information except for strike replacement data. See Oklahoma Rendering Company, 75 NLRB 1112. 19 There is a conflict of testimony not resolved by the Trial Examiner as to whether the data related to past as well as future merit increases . In the circumstances of this case, we find it unnecessary to resolve the conflict. 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union because it no longer represented a majority of its employees as a result of strike replacements, resignations, and the fact that a number of employees remained at work during the strike. No evidence was adduced at the hearing to show that the Union in fact retained its majority status. The record discloses however that the bargaining unit contained approximately 75 employees, of whom about 61 or 65 were members; about 61 employees went on strike which, as we find below, was economic in character; and at the time of the Respondent's denial of recognition approximately 46 new employees had been hired to replace the strikers. The Union also admitted that a number of strikers did not intend to return. In the light of these changed cir- cumstances and the Respondent's earlier good-faith bargaining de- scribed above, we find that the Respondent had reasonable grounds for believing that the Union had lost its majority status and that therefore the Respondent was warranted in declining to reopen negotiations." Accordingly, we shall also dismiss the allegations of the complaint that the Respondent refused to bargain with the Union during the strike, in violation of Section 8 (a) (5) and (1) of the Act. 3. The Trial Examiner found that the strike was caused and pro- longed by the Respondent's unlawful refusal to bargain and that con- sequently the strikers were entitled to reinstatement upon uncondi- tional application whether or not they had been permanently replaced in the meantime. He therefore concluded that the Respondent's denial of reinstatement to certain named strikers who unconditionally sought to return to work was discriminatory within the meaning of Section 3 (a) (3) and (1) of the Act. As we have found, contrary to the Trial Examiner, no unlawful re- fusal to bargain, the resultant strike was economic in character. The Respondent, therefore, was privileged to replace the strikers per- manently in order to conduct its business. No contention is made that the strikers were denied reinstatement to available positions or were otherwise discriminated against. We accordingly find that-the Re- spondent did not discriminate against the strikers in violation of Sec- tion 8 (a) (3) and (1) of the Act. Having found that the Respondent has not engaged in any unfair labor practices, we shall dismiss the complaint in its entirety. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor 17 Members Houston and Murdock wish to note that this case is distinguishable from Celanese Corporation of America, 95 NLRB 664, in which they dissented in part. Unlike here, the Celanese case involved a Board certificate giving rise to a rebuttable presumption of continuing majority which they believed was not rebutted by the evidence. Further- more, unlike the present case, the Respondent in the Celanese case did not raise the ques- tion of majority status in good faith. OLD LINE LIFE INSURANCE COMPANY OF AMERICA 505 Relations Board hereby orders that the complaint against the Respond- ent, Old Line Life Insurance Company of America, Milwaukee, Wis- consin, be, and it hereby is, dismissed. . CHAIRMAN HERZOG and MEMBER STYLES took no part in the consider- ation of the above Decision and Order. Intermediate Report STATEMENT OF THE CASE Upon charges duly filed by Associated Unions of America, Insurance Employees Local 65, herein called the Union, the General Counsel of the National Labor Relations Board, herein respectively called General Counsel and the Board, by the Regional Director for the Thirteenth Region (Chicago, Illinois), issued his complaint dated February 1, 1951, against Old Line Life Insurance Company of America, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charges were duly served upon the Respondent; copies of the comT plaint and notice of hearing were duly served upon the Respondent and the Union. With respect to unfair labor practices the complaint as amended during the hearing alleges, in substance, that the Respondent (1) from about March 22, 1950, has refused to bargain collectively with the Union as the exclusive representa- tive of all employees in an appropriate unit; (2) by said refusal to bargain caused its employees to strike in June 1950; (3) by continuously refusing to bargain prolonged the strike; (4) on or about December 1, 1950, refused to reinstate certain named strikers,' although an unconditional offer to return to work had been made by them; and (5) by such conduct interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act. Thereafter the Respondent duly filed an answer in which it denied having en- gaged in the alleged unfair labor practices and in which it set forth certain affirmative allegations. Pursuant to notice a hearing was held in Milwaukee, Wisconsin, on February 20, 21, 22, and 23, 1951, before the undersigned duly designated Trial Examiner. All parties were represented at and participated in the hearing where full op- portunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded them. At the conclusion of the hearing a joint motion to conform the pleadings to the evidence in minor varia- tions was granted. The parties waived the opportunity to argue orally upon the record. Following the hearing briefs have been received from General Counsel and the Respondent. Since the close of the hearing two motions have been re- 1 Alleged as having been at all times refused reinstatement to the same or substantially, equivalent positions : Joseph Cerniglia, Geraldine Duffy, Oliver Foeckler, Emily Grabowski, Lu Ella Holmer, Lorraine Kraemer, Ruth Laack, Eugene Parry, June Lueck , Rosemary Pothoar, Dolores Revolinski, Unita J. Rogers, Audrey Rude, Dolores Schubert, Joanne Stewart, Gloriette Stich , Irene Vajarsky, Theresa Janikowski, and Mayvis Lee. Alleged as having been denied reinstatement from December 1 to December 6, 1950, or at various times thereafter : Jane Paulson , Lois Rehberg, Patricia Wren, Joyce Winkelmann, Donna Raduenz, Patricia Bartsch, Shirley Beck , Virginia Behling, Margret Facile , Shirley Mine, Lois Meyer, and Virginia Raduenz. 0 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD 506 ceived from General Counsel. On April 4, 1951, the Trial Examiner overruled the Respondent's objection to General Counsel's motion to reopen the record to receive in evidence a certain court record, not available at the time of the hearing, and an order was issued to make the document a part of the record. General Counsel's motion, dated March 23, is hereby granted, and the official transcript is hereby ordered corrected in the following respect : At page 201, line 12, substitute the name "Mrs. Lois Rehberg" for "Lois Meyer." Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Old Line Life Insurance Company of America is a Wisconsin corporation, having its home office and principal place of business in Milwaukee, Wisconsin. It is engaged in the soliciting and issuing of life, accident, health, and hospital insurance policies, and in the investment of funds in real estate and other securities in Wisconsin, Ohio, Minnesota, Michigan, Illinois, and Iowa. The Respondent's operations require constant employment of interstate communica- tions and transportation facilities. , During the calendar year 1949 the Respondent received premiums on policies valued at about 5 million dollars, of which dollar volume more than 1 million dollars was received from premiums on policies sold outside the State of Wis- consin. During the same period the Respondent paid out claims on policies valued at about $1,465,352, of which more than 25 percent was paid to bene- ficiaries outside the State of Wisconsin. The Respondent concedes that it is engaged in commerce within the meaning .of the Act. II. THE LABOR ORGANIZATION INVOLVED • The Union is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Background events and issues Collective bargaining agreements between the Respondent and Union were first executed in May 1947. The latest agreement covered a period from May 1, 1949, to April 30, 1950. By letter of February 28, 1950, the Union notified the Respondent of its de- sire to negotiate certain amendments to the existing contract. The parties thereafter met on March 22, April 5, 14, and 26, May 9 and 16, June 5, 8, and 19, July 5 and 11, and August 2. A strike began on June 26. On November 28 the Union informed the Re- spondent, by letter, that the strike was terminated and on behalf of the strikers offered unconditional return to work. Some striking employees were told their jobs had been filled or discontinued and have not since then been reinstated, others were offered but declined to accept other positions, some declined full reinstatement or failed to report when such offer was made, and two were re- fused reemployment because of their alleged conduct on the picket line. The major issue is whether or not the strike was caused or prolonged by the Respondent's unfair labor practices in refusing to bargain. The Respondent concedes, in effect, that upon this point rests its responsibility for reinstating the strikers. - - OLD LINE LIFE INSURANCE COMPANY OF AMERICA B. The refusal to bargain 1. The unit and majority 507 The complaint as amended alleges, the answer admits, and the Trial Ex- aminer finds, that a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act consists of : - All employees at the home office of the Respondent, excluding officers, division heads, field representatives in the Life, Accident and Health De- partment and the Investment Department adjusters, secretaries to the president, vice president, secretary and/or senior assistant secretary, treas- urer, secretary in the Legal Department and all supervisory employees as defined in the Act. The complaint alleges, the Respondent offered no evidence to the contrary,' and the Trial Examiner finds that at all times material the Union has been, and is now, the exclusive bargaining representative of all employees in said unit for the purposes of collective bargaining. 2. Negotiations before the strike a. Job evaluation plan General Counsel claims that before June 28 and on a number of subjects, properly within the scope of valid negotiations, the Respondent either refused to bargain or by delaying tactics bargained in bad faith. Orderliness suggests review by subject matter. In the 1949-50 agreement, executed May 28, 1949, the Respondent bound itself to undertake drafting a "clear cut definition of . . . work requirements," more briefly termed a "job evaluation plan." On February 8, 1950, at a meeting with the union committee, officials of the Respondent assured the employees present that the plan would be ready for submission by March 1 and would then be submitted to the Unions In its letter of February 28, proposing negotiations, the Union requested that this plan "be submitted to the Union at the time of negotiations for study in order that any differences or disagreements as to the content of the plan may be properly made a subject of collective bargaining." At the first negotiation meeting on March 22, however, no plan was submitted. Testimony of company officials is confused and contradictory as to the actual status of the plan at that time, and as to what explanations were given to the Union. Arthur Saffert, official in charge of its preparation, testified : "We did have the plan ready by March." If ready, as Saffert testified, it would follow that for some reason the Respondent withheld it from the Union, contrary to its agreement. The more involved testimony of Vice-President Moore lends sup- port both to an inference that it was ready, and that it was still in preparation. At first he said, ". . . we explained in considerable detail the method that we had formulated for doing this kind of a job," and ". . . we had spent con- siderable time and study in picking out a plan that would be simple of under- 2 Majority representation was established at an election conducted in 1946. The Re- spondent concedes in its answer that the Union represented a majority until on or about October 6, 1950. It claimed, but offered no convincing affirmative proof , that after October 6 the Union did not represent a majority. S Arthur Saffert, an official of the Respondent, testified that "we told them we would definitely have a plan determined by the first of March and that progress was being made in regard to getting ' job descriptions." Warren Moore, vice president , testified that he told the Union "a committee . . . was presently working on it" and "we would -be only too happy" as soon as it was finished "to present it to the bargaining com- mittee for any suggestion they might have." 5O8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD standing." Later, however, Moore said he told the Union that a special com- mittee was "working out this program," one night a week , and "was progressing as fast as it could." From the more credible testimony of J. P . McKinnon, spokesman for the Union, it is clear that the Union was given to believe that the plan was not completed , but was still in process . He testified : "They outlined the idea that they were exploring the possibilities of different types of plans." At this point McKinnon suggested that the Union help "formulate and develop?' the plan. The company flatly declined , but said that after the plan was formu- lated it would be submitted to the Union for "its examination." The Union voiced its concern about the long delay, then nearly a year after the company had agreed to submit a plan , stating that upon the company's disposition of this matter and of a pension plan would largely depend its position as to a request for a wage increase under a new contract . Saffert merely told the Union he could not say when the plan would be ready. The Union again brought up the subject at the April 5 meeting. No plan was submitted . According to McKinnon's credible testimony, "it was just' gone over in about the same manner as it had been taken up in the March 22nd meeting." The subject was not discussed at the meetings of April 14 or 26, Moore being absent on the latter date. Nor did the company submit a plan or report prog- ress, so far as the record shows, at subsequent meetings on May 9 and 16 and on June 5 and 8. On June 19 the parties met with a United States conciliator. Among other items the union spokesman explained the status of the job evaluation plan dispute. Moore made no comment upon the subject. The strike began June 26. Although a variation of the proposed plan was the subject of negotiations during the strike , at no time before the strike did the Respondent submit, as bound by the 1949-50 contract or as promised at the early negotiation meetings, any job evaluation plan. In short, more than a year after - having signed a written agreement to prepare and submit an evaluation plan , the Respondent had failed to fulfill its obliga- tions. Although made plainly aware of the importance of the subject, and its bearing upon wages, the Respondent continuously evaded a responsibility which it had incurred and had formally recognized in its contract. The Trial Examiner is convinced , and finds, that the Respondent failed to bargain in good faith on the subject of a job evaluation plan at all times ma- terial before June 26, 1950, the date of the strike. Specifically, it is found that such refusal to bargain was first evidenced at the negotiating meeting of March 22, 1950. b. Pension or retirement plan At the hearing counsel for the Respondent conceded that in 1947 , 1948, and 1949, during annual contract 'negotiations , the Union unsuccessfully sought changes in a pension plan unilaterally set up by the Company in 1945. In its initial proposals for the 1950 negotiations , set out in its letter of February 28, the Union said : With the understanding that the Company is ready to submit a revised pension plan , the Union wishes to reserve its right to discuss pension pro- visions at the time of collective bargaining negotiations and to recommend such changes , corrections, or requirements which may result from a study of the plan. At the March 22 meeting the Union directly asked to take part in revising the plan ; it specifically requested that vesting rights be, included in it and that the Union be permitted representation on the benefits committee. Under the- plan as drawn up and conducted by the Employer , the Union had no voice in, the OLD LINE LIFE INSURANCE COMPANY OF AMERICA 509 selection of the one employee, appointed by the Employer, who served on this committee, a function of the plan. Moore declined to consider any changes, claiming that none would be made "because of the Federal legislation that was pending," by which he apparently meant possible changes in the Social Security Act. The Respondent did not retreat from this position throughout subsequent negotiations, until after the strike had begun' It appears that on August 2 the Company finally agreed (1) to incorporate the pension plan in any contract with the Union, thereby, presumably making its provisions the subject of negotiations, and (2) to permit the Union to select an employee representative on the benefits committee. The Trial Examiner finds no merit in the claim made in the Respondent's brief that "this matter was fairly bargained on." No convincing evidence was offered to lend validity to Moore's refusal to negotiate changes in the plan on March 22 and thereafter because of "pending" Federal legislation. On the contrary, the Respondent's prompt agreement to certain changes, including making the plan a part of the contract, shortly after the strike began, points to the lack of merit in its previously maintained position. The Trial Examiner concludes and finds that at all times from March 22 and until after the beginning of the strike on June 26, the Respondent refused to bargain in good faith concerning the pension or retirement plan. c. Promotions, job vacancies, and seniority In its letter-of February 28 the Union also proposed changes in the existing contract "to provide'. . . adequate seniority provisions to promotions, transfers, terminations and reemployment" and to provide information to the Union as to "job openings as they occur" in order that union members might bid on them. The 1949 contract then in effect permitted the employer to decide such matters unilaterally. At the first negotiating meeting on March 22, McKinnon specibeally asked that (1) a "job posting provision" be included in the new contract, and (2) a provision be included which would permit use of the grievance procedure on questions of seniority in promotions. McKinnon's credible testimony further establishes, and the Trial Examiner finds, that management in effect rejected such proposals and insisted upon reserving to its own judgment. disposition of these matters. In- deed, in the Respondent's brief, it is conceded that "the Company wanted to con- tinue these clauses in effect,"-referring to the existing contractual provisions for the Employer's unilateral rights. The Respondent continued its stand at the next meeting on April 5. Nor did it retreat until after the strike began, when, on August 2, it offered a provision agreeing to "discuss" promotions and related matters with the Union. Even then, however, the Respondent declined to provide for arbitration of disputes arising from these subjects. The Respondent claims that "there was a good faith difference of opinion" on permitting these subjects to be included in the grievance procedure. The Re- The Trial Examiner is unable to accept, as credible, Moore's testimony that the Union agreed, on March 22, that "we should await the consummation of legislation before we attempted any changes in the plan," or that on June 8 the Union said, it was "willing to waive further discussion" on the pension plan. Equally incredible is Moore's testimony that at the meeting with the United States conciliator, the latter was informed by the union spokesman that "all of the items had been elher tentatively disposed of or tabled with the exception of salaries." The Union repeated its original demands as to the plan in its letter written 2 days after the strike began, and Moore admitted as a witness that some of the demands were met at a conference shortly after the strike began. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent's attitude toward the problem, however, was more candidly expressed by,one of its spokesmen at the April 5 meeting, when he said that if the Union were brought into the picture it would result in more discord and griping, than if management exercised that right solely. The cited subjects have been found by the Board to be properly within the area of collective bargaining. It is clear that here, as in Gay Paree Undergarment .Company, 91 NLRB 1363, the Respondent engaged in negotiations with a "pre- determination not to make any concession to the Union and to reserve to itself the unilateral power to decide" matters affecting earnings and promotions. This attitude manifests the negation of the collective bargaining envisaged by the Act. The Trial Examiner concludes and finds that at all times since March 22 the Respondent has refused to bargain in good faith on promotions, job vacan- cies, and seniority 6 d. Wage information At the negotiating meeting of May 9 the Union first specifically asked the Company for a complete and up-to-date list of employees , their hiring dates and salaries , classifications, and any merit increases or promotions 1received. McKinnon explained that accurate information on these points was necessary to expedite bargaining. At this meeting company officials declined to provide such a list, declaring that such information had been previously given to the Union, periodically. At the next meeting, on May 16, however, the Company agreed to furnish the desired list. Despite its agreement, the list was not forthcoming until after the strike began, and then only in part. The Respondent offered no persuasive reason for this long delay in complying with its own agreement of May 16: The information, covering about 60 employees , may reasonably be believed to have been readily available, from company records. When considered in the light of the Respondent's other conduct during nego- tiations, this unreasonable delay possesses significance which perhaps would be lacking if standing alone. Under the circumstances described above, the Trial Examiner is convinced, and finds, that the failure to provide the requested information within a reasonable period , and before the strike, further demon- strated the Respondent's lack of good-faith bargaining. e. Final meetings before the strike The meeting of the parties on June 8 was devoted mainly to the question of wages. Review in detail of the discussion on this point appears unnecessary. It is sufficient to note that there was no meeting of minds, but that proposals and counterproposals were exchanged. The Union asked, and the Company declined, to submit the wage dispute to arbitration. At the close of the meeting the Union specifically asked company spokesmen if they were prepared to make any concession "on any of our proposals,"-clearly referring to all matters previously under negotiation, including wages. Company officials made plain that no concession would be made. The Union then sought aid of the conciliation service. A conciliator was apprised at a meeting on June 19 of the Company's position on each of the union demands as first outlined in its'original proposals of February 28. Some discussion followed, mainly on the question of wages. No agreement was reached. On June 26 about 60 employees in the unit of approximately 75 went on strike. - 5 The Trial Examiner finds the evidence insufficient to make findings on the question, related somewhat to the foregoing subjects, of the Union's requests as to merit increases. OLD LINE LIFE INSURANCE COMPANY OF AMERICA 511 f. Conclusions as to nature of strike It is General Counsel's contention that the strike was precipitated by the Respondent's unfair labor practices in refusing to bargain in good faith. The preponderance of evidence fully supports this contention. It has been found above that the Respondent first failed to bargain in good faith'on March 22 on the subject of a job evaluation plan; on that date and thereafter on the pension or retirement plan; on promotions, job vacancies, and seniority ; and on the providing of wage information. While the evidence shows that the wage dispute was prominently involved, and that the Union sought to obtain an economic goal as one purpose of the strike, the courts have long agreed that an unfair labor practice strike does not relinquish its character because an economic dispute exists.6 The Trial Examiner concludes and finds that the strike of the Respondent's employees beginning on June 26, 1950, was caused by the Respondent's unfair labor practices, as above described' 3. Refusal to reinstate strikers By letter of November 28, 1950, the Union informed the Respondent that the strike was being abandoned, and made an offer on behalf of the strikers for unconditional return to work. On the basis of a stipulation of the parties, it is found that the following employees were denied reinstatement on December 1, 1950, being told by the Company that their jobs had been filled: Joseph Cerniglia Louella Holmer Lorraine Kraemer Emily Grabowski Eugene Parry Dolores Revolinski Ruth Laack Dolores Schubert Joanne Stewart Audrey Rude Gloriette Stich Geraldine Duffy Oliver Foeckler In view of the foregoing conclusion that the strike was caused by the Respond- ent's unfair labor practices, it is concluded and found that the foregoing 13 employees were discriminatorily denied reinstatement on December 1, 1950. Stipulation of the parties also establishes that upon applying for reinstate- ment on December 1, the following employees were told that their positions had been filled and were no longer available to them. On the dates set opposite their names they were offered, but declined, full reinstatement : Margaret Fucile_________ December 4 Lois Meyer------------- December 14 Shirley Kline___________ December 5 Patricia Bartsch________ December 4 Virginia Behling________ December 4 Shirley Beek____________ December 5 Virginia Raduenz_______ December 13 Since the Respondent refused to reinstate them upon application on December 1, claiming their jobs had been filled but thereafter offered them full reinstate- ment, it is found that they were discriminatorily denied reemployment only from December 1 to the date each of them was offered reinstatement. It will be recommended that they be made whole for loss of pay which may have been suffered during the respective periods. Similar stipulations establish that the following employees applied for, but ON. L. R. B. v. Remington Rand, Inc., 304 U. S. 576. 1In view of this conclusion, it appears unnecessary to review and make findings as to meetings of the parties, looking toward a new contract; after the strike began. It is sufficient to note that on October,6, 1950, the Respondent formally notified the Union that it was no-longer -recognized as the bargaining agent -for the employees. 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD p were denied, reinstatement on December 1, on the ground that their positions had been filled and were not open to them. On the dates set opposite their names, however, they were offered and accepted reinstatement : Patricia Wren___________ December 7 Jane Paulson_____________ December 4 Donna Raduenz__________ December 5 Lois Renberg------ ------- December 4 Joyce Winkelman------_ December 14 As in the case of the employees named in the paragraph immediately above, it is found that the above five employees were discriminatorily denied reinstatement from December 1 to the date of offer of full reinstatement. Back-pay recom- mendations will be made accordingly. As to three striking employees, General Counsel claims that although they were offered reinstatement, it was not to the same or substantially equivalent positions. As to Rosemary Pothour, upon applying for her job on December 1 she was told that it was filled. On December 6 she was offered a job as typist- clerk, although at the time of the strike, and for some time before the strike, she had been a bookkeeper. Although the salary was the same, it is undisputed that the bookkeeping job required more responsibility and that returning to the tasks of a typist-clerk would have been, in effect, a demotion. She declined to accept the job offered., The Trial Examiner finds that Pothour was denied rein- statement to the same or substantially equivalent employment upon her applica- tion on December 1, and at all times thereafter. As to Mayvis Lee, an addressograph operator before the strike, company officials told her on December 1 that her job had been filled. On December 6 she was - offered a job as file clerk, at a lower salary. She declined the offer. The Trial Examiner finds that Lee was denied reinstatement to the same or substantially equivalent employment on December 1 and thereafter. As to June Lueck, a policy writer before the strike, company officials told her on December 1 that her job had been filled. On December 26 she was offered a job as a clerk-typist, a position which paid the same salary but which, according to Lueck, required a "little odd filing and some minor typing, whereas, the policy writers, we type the policies of the policy owners." She declined the offer. While this case is not without some doubt, the evidence in the record is insufficient to,support a finding that Lueck was not offered substantially equivalent employ- ment on December 26. It is found, however, that she was discriminatorily refused reinstatement from December 1 to December 26. As to Unita Rogers, a clerk-typist before the strike, she was told on December 1 that her job had been "eliminated," and was denied reinstatement. The Re- spondent offered no credible evidence to show that her position had, in fact, been eliminated. The Trial Examiner concludes and finds that Rogers was denied reinstatement, discriminatorily, on December 1. As to Irene Vajarsky and Theresa Janikowslvt, the Respondent claims that they were denied reinstatement on December 1 because Vice-President Moore had been informed that they had engaged in certain misconduct on the picket line. Moore' admitted that he did not witness any misconduct, nor did he question either of the employees on the matter. Admittedly his refusal to reinstate was based entirely upon hearsay. His failure to make even a reasonable effort to ascertain from the two employees whether misconduct had in fact occurred deprives the Respondent's contention of merit. It is found that Vajarsky and Janikowski were discriminatorily denied reinstatement on December 1. 4. Conclusions in general The Trial Examiner concludes and finds that the Respondent (1)• since March 22, 1950, has refused- to bargain collectively with the Union as the ex- OLD LINE LIFE INSURANCE COMPANY OF AMERICA 513 elusive representative of all employees in an appropriate unit; (2) by its refusal to bargain caused and prolonged the strike beginning on June 26; (3) on December 1 and thereafter discriminatorily refused reinstatement to em- ployees in the manner set forth in the section immediately above, to discourage union activity and because they had engaged in concerted activities; and (4) by such conduct has interfered with, restrained, and coerced itsemployees in the exercise of rights guaranteed by Section 7 of the Act. 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 its operations described in Section I, above, have a close, in- timate, and substantial relation to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY ' Having found that the Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take cer- tain affirmative action which will effectuate the policies of the Act. It has been found that the Respondent has refused to bargain collectively with the Union. It will therefore be recommended that the Respondent cease and desist therefrom, and also that upon request it bargain collectively with the Union with respect to wages, hours, and other terms and conditions of em- ployment, and if understanding is reached embody such understanding in a signed contract. It has been found that the Respondent has discriminated in regard to the hire and tenure of employment of certain employees. It will be recommended that the Respondent offer to the employees listed in Appendix A immediate and full reinstatement to their fortner or substantially equivalent positions,' and make them and the employees listed in Appendix B whole for any loss of pay they may have suffered as a result of the discrimination against them by pay- ment to each of them of a sum of money equal to that which he or she would have earned as wages from December 1, 1950, to the date of offer of reinstate- ment for employees listed in Appendix A and for employees listed in Appendix B to the date noted opposite the name of each. Loss of pay will be computed on the basis of each separate calendar quarter or portion thereof during the period from December 1, 1950, to the date of a proper offer of reinstatement. The quarterly periods, herein called quarters, shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which each would normally have earned for each quarter or portion thereof, his net earnings,' if any, in other employment during that period. Eai w- ings in one particular quarter shall have no effect upon the back-pay liability for any other quarter.10 In accordance with the Woolworth decision, it will be recommended that the Respondent, upon reasonable request, make available to the Board and its agents all records pertinent to an analysis of the amount due as back pay. The unfair labor practices found reveal on the part of the Respondent such a fundamental antipathy to the objectives of the Act as to justify an inference that 8The Chase National Bank of the City of New York, an Juan, Puerto Rico, Blanch, 65 NLRB 827. ' 9 Crossett Lumber Company, 8 NLRB 440. 11 P. W. Woolworth Company, 90 NLRB 289. •r 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the commission of other unfair labor practices may be anticipated. The pre- ventive purposes of the Act may be frustrated unless the Respondent is required to take some affirmative action to dispel the threat . It will be recommended, therefore, that the Respondent cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed by the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Associated Unions of America, Insurance Employees Local 65, is a labor ,organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in • regard to the hire and tenure of employment of the individuals named in Appendix A and Appendix B, attached hereto, the Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. All employees at the home office of the Respondent, excluding officers, division leads, field representatives in the life, accident, and health department and the investment department, adjusters, secretaries to the president, vice president, secretary and/or senior assistant secretary, treasurer, secretary in the legal department, and all supervisory employees as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. , 4. Associated Unions of America, Insurance Employees Local 65, was on March 22, 1950, and at all times since then has been the exclusive representative within the meaning of Section 9 (a) of the Act of all employees in the aforesaid unit for the purposes of collective bargaining. 5. By refusing to bargain collectively with Associated Unions of America, Insurance Employees Local 65, as the 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 (a) (5) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning -of Section 8,(a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] Appendix A Joseph Cerniglia Geraldine Duffy Oliver Foeckler Emily Grabowski Louella Holmer Lorraine Kraemer Ruth Laack Eugene Parry Dolores Revolinski Audrey Rude Dolores Schubert Joanne Stewart Rosemary Pothour Gloriette Stich Mayvis Lee Unita Rogers Irene Vajarsky Theresa Janikowski OLD LINE LIFE INSURANCE COMPANY OF AMERICA ' 515 Margaret Fucile_________ December 4 Shirley Kline------------ December 5 Virginia Behling--------- December 4 Virginia Raduenz________ December 13 Lois Meyer-------------- December 14 Patricia Bartsch --------- December 4 Shirley Beek____________ December 5 Appendix B Patricia Wren___________ December 7 Donna Raduenz---- ------ December 5 Joyce Winkelmann______- December 14 Jane Paulson ------------ December 4 Lois Rehberg ------------ December 4 June Lueck--------------- December 26 Appendix C NOTICE To ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist AssoCIATED UNIONS OF AMERICA, INSURANCE EMPLOYEES LOCAL 65, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. WE wuLL offer to the employees listed below immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to any seniority or other rights or privileges previously enjoyed. Joseph Cerniglia Emily Grabowski Ruth Laack Audrey Rude Rosemary Pothour Unita Rogers Geraldine Duffy Louella Holmer Eugene Parry WE WTT• make whole Dolores Schubert Gloriette Stich Irene Vajarsky Oliver Foeckler Lorraine Kraemer Dolores Revolinski Joanne Stewart Mayvis Lee Theresa Janikowski the employees named above and the employees named below for any loss of pay suffered as a result of discrimination. Margaret Fucile Shirley Kline Virginia Behling Virginia Raduenz Lois Meyer Patricia Bartsch Shirley Beck Patricia Wren Donna Raduenz Joyce Winkelmann Jane Paulson Lois Rehberg June Lueck WE WILL BARGAIN collectively upon request with the above-named union as the exclusive representative of all employees in the bargaining unit described below with respect to rates of pay, hours of employment, or other 516 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement . The bargaining unit is : All employees at the home office, excluding officers, division heads, field representatives* in the life, accident, and health department and the invest- ment department, adjusters, secretaries to the president, vice president, secretary and/or senior assistant secretary, treasurer, secretary in the legal department and all supervisory employees as defined in the Act. All our employees are free to become or remain members of the above-named union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of his membership in or activity on behalf of any such labor organization. OLD LINE LIFE INSURANCE COMPANY OF AMERICA, 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. REILEY'S STORES, INC. and LOCAL 429, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, AFL, PETITIONER. Cases Nos. 4-RM-80 and 4-RC-1258. Septem- ber X7,1951 Decision and Order Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before Harold X. Summers, 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 Houston and Reynolds]. Upon the entire record in this case, the Board finds : 1. The labor organization involved claims to represent employees of the Employer. 2. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act, for the following reasons: The Employer operates in the Commonwealth of Pennsylvania three retail stores for the sale and servicing. of electrical appliances. During the 1950 calendar year, the Employer made purchases valued at $353,951.60, of which $69,621.97 represented merchandise received directly from outside the Commonwealth, and $2'74,829.63 repre- sented merchandise which was received from sources inside, but which 96 NLRB No. 75.