Gagnon Plating and Manufacturing Co.

104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Having found that Respondent has engaged in certain unfair labor prac- tices, I will recommend that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having also found that Respondent has refused to bargain collectively with the Union, I will recommend that Respondent bargain collectively with the Union, upon request, as the exclusive representative of its employees in the appropri- ate unit. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America (UAW-CIO) and its Local No. 408 is a labor organi- zation within the meaning of Section 2 (5) of the Act. 2. All employees of Respondent at its River Rouge, Michigan, establishment, excluding office and clerical employees, new and used car salesmen, administrative and professional employees, watchmen, superintendents, service managers, shop foremen, and all supervisors as defined by the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America (UAW-CIO) and its Local No. 408 was on October 31, 1950, and has been at all times thereafter, the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on October 18, 1950, and at all times thereafter, to bargain collectively with International Union, United Automobile, Aircraft and Agri- cultural Implement Workers of America (UAW-CIO) and its Local No. 408, as the exclusive representative of all employees in the aforesaid appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By the aforesaid refusal to bargain, Respondent has interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] GAGNON PLATING AND MANUFACTURING COMPANY and INTERNATIONAL ASSOCIATION OF MACHINISTS , LODGE No. 750. Case No . 30-CA-84. November x,1951 Decision and Order On April 27, 1951, Trial Examiner Henry J. Kent issued his Inter- mediate Report in the above-entitled proceeding, finding that the 97 NLRB No. 20. GAGNON PLATING AND MANUFACTURING COMPANY 105 Respondent had engaged in and was engaging in certain unfair labor practices in violation of Section 8 (a) (1) and Section 8 (a) (5) of the Act, 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. Thereafter the Respondent filed exceptions to the Intermediate Report. On July 27, 1951, the record in the case was reopened by the Board for the purpose of receiving essential facts concerning the operations of the Respondent and the manufacturers for whom the Respondent performs services. On October 10, 1951, the Respondent, the General Counsel, and the Union filed a stipulation as to the aforesaid operations of the Respondent and these manufacturers and the value thereof. Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Murdock and Styles]. 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 In- termediate Report, the exceptions filed thereto, the stipulation filed upon reopening of the proceeding, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the additions and modifications noted below.2 1. The Trial Examiner found that the Respondent is engaged in commerce within the meaning of the Act and that it would effectuate the policies of the Act to assert jurisdiction over the business of the Respondent. The Respondent excepts to this finding on the ground that the Board in Hollow Tree Lumber Company of California 3 an- nounced that it would not, as a matter of policy, assert jurisdiction over enterprises which furnish goods or services to certain other em- ployers operating in interstate commerce unless the total value of such goods or services is in excess of $50,000 yearly. The evidence intro- i The Respondent excepts to the Trial Examiner 's denial of Respondent's motion during the hearing to exclude all evidence concerning matters which occurred after the date of the filing of the charge in this case . The Board hereby affirms the ruling of the Trial Examiner. See Cathey Lumber Company, 86 NLRB 157. 2 The Intermediate Report contains certain misstatements and Inadvertences , none of which affects the Trial Examiner's ultimate conclusions or our concurrence in such con- clusions. Accordingly, we make the followiug corrections : ( 1) Burgess acknowledged the receipt of the original contract draft from Hansen on March 28, 1949, rather than March 29; (2) although it is probable that the Respondent posted a notice announcing a wage increase in July 1950 as stated by the Trial Examiner , the date is not shown by the record other than witness Springfield 's statement that it was posted "a month or two prior to September"; ( 3) witnesses Lovay and Quinn testified that as late as July 1950 , Burgess agreed to meet again with the Union to consummate an agreement, rather than, as stated in the Intermediate Report, witnesses "Cody and Quinn" ; ( 4) the last formal meeting between Burgess and the union representatives occurred on August 10, 1949, rather than August 19, 1949, as indicated in the Trial Examiner 's Conclusions of Law. 8 91 NLRB 635. 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD duced at the hearing in this case was conflicting as to the exact amount of purchases and sales made by the Respondent and the participation in commerce of the enterprises for which the Respondent supplies services. However, the stipulation filed by the parties shows that the Respondent, during the year 1949, performed electroplating and metal finishing services valued at $69,188.59 for concerns and manu- facturers which each, in turn, shipped goods and metal products from points within the State of Colorado to points outside that State in amounts exceeding $25,000. Accordingly, we find that the Respond- ent is engaged in commerce within the meaning of the Act, and that it would effectuate the policies of the Act to assert jurisdiction herein 4 2. The Respondent also excepts broadly to the entire Intermediate Report on grounds that : (1) The proceedings are void in their entirety because the complaint alleges that the unfair labor practices com- menced on a date more than 6 months before the filing and service of the charge; (2) the complaint alleges unfair labor practices occurring prior to the date specified in the charge; (3) the Trial Examiner took into consideration facts and actions taking place more than 6 months before the filing of the charge; (4) the Trial Examiner took into con- sideration facts and actions taking place before the date on which the charge alleges the unfair labor practices commenced; and (5) the Trial Examiner took into consideration facts and occurrences taking place after the complaint had been filed. As to the first of these exceptions, it is true that the complaint issued in this case stated that the Respondent "has at all times since on or about April 1, 1949, pursued a course of conduct refusing and con- tinuing to refuse to bargain collectively in good faith with the Union . . . ." As charges were not filed until December 12, 1949, it is also clear that the April 1 date noted in the complaint as marking the onset of the alleged refusal to bargain falls within a period more than 6 months prior to the filing and service of the charge. The Re- spondent therefore asserts that the complaint is void in its entirety in view of the limitations of Section 10 (b). The complaint, however, alleges an unfair labor practice continuous in type and which existed on and after a date 6 months prior to the filing and service of the charge. The Board does not consider, accordingly, that the fact that the complaint also encompasses a time prior to that date vitiates the entire complaint or a finding of an*unfair labor practice on and after the period specified by Section 10 (b) .5 A See Hollow Tree Lumber Company of California, supra; Fur Workers Local 85 and Queens-Premier-Williams Fur Dressing Corp., 92 NLRB 42. 6 See, for example, Lloyd A. Fry Roofing Company, 85 NLRB 1222 at 1228 , where the complaint contained general allegations of unfair labor practices which , by the statement of the complaint itself, occurred partially prior to the 6-month period preceding the filing and service of the charge. GAGNON PLATING AND MANUFACTURING COMPANY 107 The Board also does not consider the fact that the complaint enlarged upon the allegations of the charge, and the fact that the Trial Examiner received and considered evidence pertaining to the expanded allegations 6 to have been erroneous. It is well established that the Board may base an unfair labor practice finding upon any conduct which occurred within the 6-month period prior to the filing of a charge even though the charge itself does not specify such conduct as a violation of the Act, if the complaint issuing thereupon alleges the conduct to be an unfair labor practice? Nor was the Trial Exam- iner incorrect in considering the unilateral wage increase of September 1, 1950, as evidence on the question of Respondent' s refusal to bargain even though such conduct took place after the issuance of the complaint in this proceeding. The Respondent did not claim surprise by the introduction of evidence on this issue. Nor did Respondent show that it was prejudiced thereby. The actions of the Respondent on that date were well within the allegations of the complaint, and, as the duty to bargain in good faith is a continuing one, the issuance of the com- plaint did not serve to relieve the Respondent of that duty or of the restrictions of the Act. Finally, the Board finds no merit in the contention that no evidence pertaining to events occurring more than 6 months before the filing and the service of the charge should be considered. The Board has consistently held that such evidence may be introduced, and considered as it has been here, for background purposes, to explain and clarify events occurring within the 6-month period itself." 3. The Trial Examiner found, and we agree, that the Respondent, by refusing to bargain collectively in good faith with the Union as the exclusive representative of all its employees in an appropriate unit, violated Section 8 (a) (1) and Section 8 (a) (5) of the Act. As set forth by the Trial Examiner, the record shows that the Respondent refused to incorporate existing conditions of employment in a written agreement, passively waited for the Union to make all requests for bargaining meetings, limited the bargaining meetings to unreasonably short periods at considerable intervals of time, failed to submit coun- terproposals while turning down the Union's offers, and granted a unilateral wage increase to its employees on September 1, 1950, without previously bargaining with the Union. The Trial Examiner found, on these facts, that the Respondent had refused to bargain in good faith on certain specific dates on and after June 27, 1949. The Board finds, however, that the Respondent's entire course of conduct in its e The charge alleged a refusal to bargain on or about November 8, 1949 , while the com- plaint issuing thereupon alleged a refusal to bargain at all times since April 1, 1949. 4 See Stokely Foods, Inc., 91 NLRBNo. 91 ; Tennessee Knitting Mills, Inc., 88 NLRB 1103. 8 See N. L. R. B. v. Frederica Clausen d/b/a Luzerne Bide & Tallow Co., 188 F. 2d 439 (C. A. 3), cert. den. November 5, 1951. 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining relationships with the Union at all times displayed a flied intention merely to preserve the appearance of bargaining, while avoiding any actual negotiation in good faith or effort to reach a mutually satisfactory agreement. This course of conduct commenced after the resolution of the representation question early in 1949 at which time the Union was selected as the bargaining agent for Res- pondent's employees. As Section 10 (b) of the Act, however, prevents any finding of an unfair labor practice occurring more than 6 months prior to the filing and service of the charge, the Board finds only that on and after June 14, 1949,9 the Respondent failed and refused to bargain in good faith with the Union as the exclusive representative of its employees in violation of the Act.") In addition, the Board finds that the granting of the unilateral wage increase on September 1, 1950, constituted a per se violation of Section 8 (a) (5). 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, Gagnon Plating and Manu- facturing Company, Colorado Springs, Colorado, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with International Associa- tion of Machinists, Lodge No. 750, as the exclusive representative of all production and maintenance employees in the maintenance and production departments in the Respondent's plant at Colorado Springs, Colorado, excluding all office and clerical employees, truck drivers, guards, professional employees, and all supervisors as de- fined in the amended Act, in respect to rates of pay, wages, hours of employment, and other conditions of employment. (b) In any manner interfering-with efforts of International Asso- ciation of Machinists, Lodge No. 750, to bargain collectively with it on behalf of the employees in the aforesaid 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 International Asso- ciation of Machinists, Lodge No. 750, as the exclusive representative of all production and maintenance employees in the production and 9 See Sanson Hosiery Mills, Inc, 92 NLRB 1102 . The record does not show, in the instant case, the precise date upon which the charge was served upon the Respondent other than to the extent that the service had been accomplished by December 14, 1949. We shall, accordingly , date the refusal to bargain from June 14, 1949, in compliance with the terms of Section 10 (b). Further, we dismiss the complaint insofar as it alleges a violation of the Act prior to that date. 10 See J. H. Rutter-Rex Manufacturing Company, Inc., 86 NLRB 470. GAGNON PLATING AND MANUFACTURING COMPANY 109 maintenance departments at the Respondent's plant at Colorado Springs, Colorado, in respect of rates of pay, wages, hours of employ- ment, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. !(b) Post at its plant in Colorado Springs, Colorado, copies of the notice attached hereto, marked "Appendix A." I-' Copies of said notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being duly signed by the Respondent or its repre- sentative, be posted by the Respondent immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Seventeenth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. 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 BARGAIN collectively upon request with INTERNATIONAL ASSOCIATION OF MACHINISTS, LODGE No. 750, as the exclusive repre- sentative of all employees in the following bargaining unit with respect to rates of pay, hours of employment, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement : All production and maintenance employees in the production and maintenance departments of the Gagnon Plating and Manufacturing Company, Colorado Springs, Colorado, ex- cluding all office and clerical employees, truck drivers, guards, professional employees, and all supervisors as defined in the amended Act. WE WILL NOT in any manner interfere with the efforts of the INTERNATIONAL ASSOCIATION OF MACHINISTS, LODGE No. 750, to bargain with us, or refuse to bargain with said union as the 11 In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted before the words : "A Decision and Order" the words : "A Decree of the United States Court of Appeals Enforcing." 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exclusive representative of the employees in the bargaining unit set forth above. GAGNON PLATING AND MANUFACTURING COMPANY, Employer. By ----------------------------------------------------- (Representative ) (Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE Upon a charge duly filed on December 12, 1949, by International Association of Machinists, Lodge No. 750, herein called the Union, the General Counsel of the National Labor Relations Board,' by the Regional Director for the Seven- teenth Region (Kansas City, Missouri), issued a complaint dated August 23, 1950, against Gagnon Plating and Manufacturing Company of Colorado Springs, Colorado, 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) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended by Public Law 101, 80th Congress, Chapter 120, 1st Session,2 herein called the Act. Copies of the charge, complaint, and notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleged, in substance, that the Respondent on or about April 1, 1949, and thereafter, refused to bargain collectively in good faith with the Union as the exclusive bargaining representa- tive of the Respondent's employees within an appropriate bargaining unit, after the Union had been designated on February 18, 1949, at an election conducted by the Board as the bargaining representative of the said employees for the purposes of collective bargaining. The complaint alleged that by the foregoing conduct the Respondent engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (5) of the Act. Thereafter, the Respondent duly filed its answer admitting some of the facts alleged in the complaint regarding its business operations, but generally denying that it was engaged in commerce within the meaning of the Act, and further denying that it had refused to bargain as alleged in the complaint. Pursuant to notice, a hearing was duly held on November 21, 1950, at Colorado Springs, Colorado, before the undersigned Trial Examiner. The General Counsel and the Respondent were each represented at the hearing by counsel and the Union by official representatives. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. , At the opening of the hearing, counsel for the Respondent moved to exclude all evidence concerning, matters which occurred after December 12, 1949, the date of the filing of the charge. 1 The General Counsel and his representative at the hearing are herein referred to as the General Counsel , and the National Labor Relations Board is referred to as the Board. 2 61 Stat. 136. GAGNON PLATING AND MANUFACTURING COMPANY 111 The undersigned denied the motion. It is plainly apparent that a refusal to bargain is a continuing violation of the Act and that if such a defense as above raised by the Respondent is sustained, an employer might give lip service at bargaining negotiations until a charge was filed and thereafter refuse to par- ticipate in further negotiations. The law is well settled that filing of charges do not suspend the operation of the Act, nor relieve an employer of his duty to bargain.8 At the close of the testimony, the parties waived an opportunity to present oral argument before the undersigned. They were then informed that they might submit briefs to him within 15 days. A brief has been duly received from the General Counsel. Thereafter, on or about December 30, 1950, the General Counsel filed a stip- ulation by the parties with the undersigned containing additional facts regard- ing the Respondent's business operations and, in effect, moved to augment the record by including therein the stipulated facts. It is hereby ordered that the said stipulation be received in evidence for the purpose offered. It has been physically inserted in the exhibit file of the case and marked "Trial Examiner's. Exhibit No. 1." Upon the entire record in the case and from my observation of the witnesses at the hearing, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Gagnon Plating and Manufacturing Company is a Colorado corporation maintaining its office and plant at Colorado Springs, Colorado, where it is engaged in an electroplating and metal finishing business. For the most part, it is engaged in plating and metal finishing operations on small parts such as hose fittings, special tools, wrenches, and carburetor and other aircraft parts for other manufacturing concerns. In connection with these operations it annually purchases raw materials valued at about $25,000 of which about 20 percent in value is purchased and shippped to the Respondent's plant from points outside the State of Colorado. During a similar period it performs plating and finishing services valued at approximately $80,000 on materials of other manufacturers most of whom are engaged in business in the State of Colorado, but about 50 percent in value of the parts so serviced for other manufacturers is thereafter sold and shipped by the said other manufacturers to points outside the State of Colorado. In addi- tion, the Respondent directly sells and ships other products processed in its plants of an approximate yearly value of $5,000, to points outside the State of Colorado.` On the basis of the foregoing findings, and the entire record, I conclude and find that the operations of the Company substantially affect commerce within the meaning of the Act, and further find that it will effectuate the policies of the Act for the Board to assert jurisdiction in the case.° 9 The Toledo Desk & Fixture Co., 75 NLRB 744 ; Dixie Culvert Manufacturing Company, 87 NLRB 554; Kelco Corporation, 79 NLRB 759, holding that filing of charges did not suspend the operation of the Act, nor relieve the employer of his continuing duty to bargain. 4 The above findings are based upon admissions made in the Respondent 's answer, a letter dated April 3, 1950, from the Respondent to a field examiner of the Board, in evidence, and upon facts contained in the stipulation of the parties entered into after the close of the hearing and admitted in evidence. Queens-Premier-Williams Fur Dressing Corp ., 92 NLRB 42 ; Hollow Tree Lumber Com- pany, 91 NLRB 635. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD U. THE ORGANIZATION INVOLVED International Association of Machinists,, Lodge No. 750, is a labor organization admitting employees of the Respondent to membership. III. THE UNFAIR LABOR PRACTICES A. Sequence of material events 1. The appropriate unit and representation by the Union of a majority therein The complaint alleges and the Respondent admits in its answer that on or about February 18, 1949, the Union was designated by the employees in an appropriate bargaining unit (described below) as their representative for the purposes of collective bargaining at a secret election conducted under the super- vision of the Board's Regional Director for the Seventeenth Region. It is found that all production and maintenance employees in the production .and maintenance departments at the Respondent's plant, excluding all office and clerical employees, truck drivers, guards, professional, and supervisory employees as defined in the amended Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. It is further found that on February 18, 1949, the Union was and has since con- tinued to be, at all times material herein, the representative of the said employees in the above-described unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act 2. Factual findings regarding the refusal to bargain a. The preliminary requests to bargain There is no dispute that E. F. Hansen was the accredited representative of the parent Union in the Colorado Springs, Colorado, area, from the date of the election until early in May 1949, when the Union transferred M. A. Lovay to succeed Hansen in this territory. The record shows that Hansen by letter dated March 11, 1949, complained to the Respondent that the latter had failed to set a date to begin bargaining nego- tiations despite several earlier requests made by Hansen that it do so. On March 21, 1949, Thomas M. Burgess, counsel for the Respondent at the hearing, notified Hansen by letter that Burgess had been delegated by the Respondent to serve as its bargaining agent and requested Hansen to submit a draft of the Union's proposed contract to Burgess. Hansen sent Burgess a draft of a tentative agree- ment on the following day. Burgess, by letter dated March 29, 1949, acknowl- edged receipt of the proposed agreement also stating therein that he, Burgess, had been unable to discuss the provisions of the contract with the Respondent's officials, and that Burgess would be absent from Colorado Springs until April 4, 1949, but that Burgess would arrange to meet with Hansen to discuss the proposed contract shortly after his return. According to Burgess' credited testimony, he and Hansen thereafter met at Burgess' office in Colorado Springs on April 7, 1949, to begin bargaining negotiations.7 9 No substantial and convincing evidence was offered by the Respondent at the hearing to show that the Union has lost its majority, or that the unit was inappropriate. 7 Hansen was not called to testify at the hearing. In the main, the above findings are based upon correspondence between the parties admitted in evidence by stipulation. GAGNON PLATING AND MANUFACTURING COMPANY 113 b. The first bargaining meeting on April 7, 1949 According to Burgess' credited and undenied testimony : He met at his law office at Colorado Springs, Colorado, on April 7 with Hansen, the representative of the Union ; that on this occasion he complained to Hansen that the proposed contract earlier submitted by Hansen was too prolix and detailed to be practically administered in governing labor relations in a small plant employing about 14 -rank-and-file workers, such as the Respondent's plant, that he told Hansen the Respondent could not afford to grant any wage increases or accede to other demands calculated to increase plant operating expenses, and that after a general discussion with Hansen concerning the proposed agreement, Hansen agreed to draft a revised proposal which would be submitted later.' Meanwhile, later in April or the early part of May 1949, according to the credited and uncontradicted testimony of M. A. Lovay, the parent Union transferred Lovay to act as repre- sentative in the Colorado Springs, Colorado, area, as Hansen's successor, that after Lovay's arrival in Colorado Springs, Hansen related to Lovay the history of the bargaining relations to date, that Lovay and Hansen then worked together in preparing a revised agreement to present to the Respondent, and that following its preparation Lovay arranged for a second bargaining conference to be held at Burgess' office on May 17, 1949' c. The second meeting on May 17, 1949 Lovay and Glen Springfield, an employee member of the Union's shop com- mittee, attended this and all subsequent formal meetings as representatives of the Union. Burgess, the Respondent's counsel, was the sole representative present for the Respondent, but one Miss Williams, a court reporter at Colorado Springs, Colorado, also was present to take minutes of the discussion for Burgess 10 No progress was made at this meeting toward reaching an agreement regard- ing any of the terms of an agreement. According to the credited and undenied testimony of Lovay after Lovay handed Burgess a copy of the second proposed agreement (in evidence) Burgess asserted that he required time to read over and consider the provisions therein contained and then stated to Lovay that he would arrange to meet again in a few days after receiving a telephone call from Lovay when they could agree upon a date satisfactory to both parties. Pursuant to a later request from Lovay, the third meeting was scheduled to be held at Burgess' office on May 27, 1949. d. The third meeting on May 27, 1949 The same negotiators were present at this meeting, namely, Lovay and Spring. field for the Union and Burgess for the Respondent" All formal negotiating 6 Hansen was not called to testify at the hearing. 0 The second proposed agreement was contained on about 9 pages of letter size paper, whereas the first required 14 pages legal size paper . Substantially similar wage increases -were demanded in each of the 2 proposals , but in the second a demand for 6 paid holidays each year was dropped to 1, namely , Christmas Day, and the Union also cut its demand for a 2 weeks' paid vacation for all employees with more than 1 year's service to 1 week's paid -vacation each year. 10 According to Lovay's credited testimony , he objected to the reporter's presence at bargaining meetings asserting that it might delay bargaining and also prevent the negoti- ators from freely expressing their opinions, and on the further ground that because the Respondent's plea of poverty as reasons for an earlier refusal to agree to any demand likely to cause an increase in operating expenses Lovay could not understand its willingness to incur the expense of making a transcript , but that Lovay waived this objection when Burgess insisted that he wanted such a record made for his personal use. 11 Also present was Miss Williams , the reporter hired by Burgess to take minutes. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meetings, including this one, began at 11 o'clock on the mornings they were held, and all of them were held in Burgess' law office at Colorado Springs. The parties are in substantial agreement that each paragraph of the agree- ment was read over and briefly discussed at this meeting. There is also no dispute that article 1, which provided for recognition of the Union as bargain- ing representative, that article 8, providing that Christmas Day be a paid holi- day absent, however, the further proviso in the proposed agreement that double time premium pay be given any employee obliged to work on that day, that article 9 to the limited extent of granting 1 week's vacation to all employees with 1 or more years' service," that article 12, which required the Respondent to maintain bulletin boards for the use of the Union, that article 13, requiring the Respondent to maintain proper safety and sanitary conditions in the plant, that article 19 granting the employees 10 minutes wash-up time before the lunch period and at the end of each shift, and that article 22 which changed the regularly established payday to Friday of each week, the last workday in each week, were matters mutually agreed upon at the meeting. The parties were in partial agreement regarding some of the other terms in the proposed second draft of the agreement , notably the seniority proviso, and passed it for later consideration at another meeting. Burgess from the begin- ning of negotiations, according to his credited and uncontradicted testimony, took an adamant stand that the Respondent could not afford to grant any wage increases or other benefits that would affect operating costs, such as overtime pay for working time over 8 hours in 1 day, that the Respondent would insist upon an open-shop agreement, and that the Respondent also objected to the inclusion of any shift differential bonus similar to that proposed in article 5 of the Union's proposal, despite the fact that he admitted the Respondent customarily had granted some form of bonus to night-shift workers before this time. Shortly after 12 o'clock noon on this same day Burgess announced that he could spend no more time presently on the matter, because business of other clients required his attention, and he then told Lovay he would arrange for another meeting if Lovay would call him on the telephone in a few days. Lovay objected to the delays already incurred in connection with concluding the nego- tiations and asserted that they should spend more time at bargaining sessions in order to complete negotiations promptly but was unable to elicit any favorable response from Burges s concerning longer bargaining meetings in the -future 13 e. The fourth meeting held on June 8, 1949 Pursuant to an earlier telephone call requesting a meeting which had been made by Lovay, the same negotiating group met at 11 o'clock on the morning of June 8, at Burgess' office." At this meeting Lovay handed Burgess a short form proposed seniority clause to replace the long seniority proviso contained in article 15 and its various subsections set forth in the Union's second proposed agreement. Burgess stated in substance that although the proposed substituted clause came closer to his view regarding the purpose of a seniority provision -in a small plant, it was not entirely acceptable and according to Burgess' credited testimony the matter was passed for further discussion at a later meeting. 13 According to the credited and undenied testimony of Springfield , the Respondent had established a policy of granting 1 week 's vacation to employees in this category before the Union had organized the plant. 13 In substance , Burgess asserted that pressure of business for other clients prevented him from spending over 1 hour at a bargaining meeting in the Gagnon case. 14 The court reporter was also present at this meeting. GAGNON PLATING AND MANUFACTURING COMPANY 115 There is no disagreement that they then entered into a discussion regarding wage increases at which stage of the meeting Burgess again reiterated his earlier stand that the Respondent would not agree to any wage increases. Lovay then asserted that the Union would call in a United States commissioner of concilia- tion to assist him during further negotiations, and the meeting ended. f. The fifth meeting held on June 22, 1949 This meeting was arranged by United States Commissioner of Conciliation Hickerson. Hickerson, accompanied by Lovay and Springfield, met with Burgess at the latter's office at 11 o'clock that morning. This meeting was fruitless because Burgess refused to carry on negotiations in the presence of the conciliation commissioner, whereupon the latter departed. According to the credited and undenied testimony of Lovay, he requested Burgess to continue with the negotiations after Hickerson left the office, but Burgess refused to do so, asserting that he, Burgess, could devote no more time to the Gagnon matter on this day.15 g. The sixth meeting held on June 27 Pursuant to a telephone call from Lovay to Burgess, a day or two before June 27, 1949, another meeting was arranged for the morning of June 27. The same negotiators attended it, and, in addition, Miss Williams, the court reporter, also appeared there. According to the credited testimony of Burgess, Lovay submitted a second revised proposal for a seniority clause at this meeting, and that Burgess, in substance, remarked it was closer in accord to what he considered an acceptable seniority clause.16 The parties then entered into a further discussion regarding wage increases. According to Lovay's credited and undenied testimony : Burgess refused to re- cede from his former adamant stand that no wage increases could be granted, but remarked in substance that the Respondent would only enter into an agree- ment continuing the existing wage rates ; Lovay countered with an offer that the Union would drop its earlier demands for wage increases approximating 20 cents an hour if the Respondent would grant a general wage increase of 5 cents an hour ; Burgess refused to meet this proposal, whereupon the union negotiators left the meeting following a remark by Lovay, to the effect that the employees would not be satisfied with an agreement providing for no wage increases. h. The seventh and last formal meeting on August 10, 1949 According to Lovay's credited testimony he met with considerable difficulty in arranging for another meeting. He credibly testified in substance, without denial that he called Burgess' office on the telephone at least once each week after June 27 in an effort to arrange for another meeting, before Burgess 36 Since this was the only scheduled bargaining meeting that the reporter did not attend, I am of the opinion and find that Burgess had no intention of participating in any nego- tiations on this day, and that accordingly he was wasting the time of the union negotiators. Se Lovay and Springfield each testified without substantial contradiction that at one of the meetings Burgess agreed to draft a seniority proposal and submit it to the Union for consideration, but that he failed to do so. Lovay testified that he submitted both proposed short form seniority proposals at the June 8 meeting, but Burgess' assertion that the second one was not submitted until June 27 seems more probable and I find that it was on June 27 that Burgess agreed to draft a substitute seniority proposal, but thereafter failed to do so. 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eventually agreed to meet with the union representatives again on August 10.3' As on all previous occasions the meeting began at 11 o'clock on the morning of this day in Burgess' office and the same persons, including the court reporter, were present at the meeting. This meeting, according to Lovay's undenied testimony, only lasted about one- half an hour. He further credibly testified, in substance, without convincing contradiction : The negotiators briefly went over the provisions of the Union's second draft proposal on which substantial agreements had been reached ; that he proposed that a boiled-down draft agreement should be written up in final form including all of the terms 'on which they had reached an understanding, and also including Burgess' last proposal that the existing wage scales would be continued for 1 year, that he would then submit this last draft to all of the union members for their approval with a recommendation from Lovay that they accept it, and that he then asked Burgess if the latter wished to draft such an agreement or wanted Lovay to prepare it, whereupon Burgess agreed to write it up and submit it to the union representatives in a few days.13 i. Further efforts by the Union to continue and conclude negotiations According to Lovay's further credited testimony, Burgess failed to prepare a boiled-down draft of the proposed final agreement despite numerous requests by means of telephone calls from Lovay to Burgess during the next few weeks that Burgess submit it to the Union. On September 8, 1949, Lovay sent Burgess the following letter: Since our last meeting the writer attempted to assemble all of the employees of Gagnon Plating Co. together. The purpose being to submit to them what we had been able to work out in our meetings. After explaining to them the position of the Company and your own position in this matter, they reluctantly agreed to have you make up the agreement along the lines we had tentatively agreed on. [Emphasis supplied.] The writer believes that in drafting this document you give consideration to overtime over the eight hours in any one day, Shift bonus, if any, Seniority by classification and Grievance procedure. The above points we were not in agreement on and I am firmly convinced by talking to the employees that if these points could be improved upon, a better feeling would prevail that would result in increased production and at the same time creating a healthy situation beneficial to the Company. This has been a long drawn out affair and the writer desires to bring this to a conclusion as soon as possible. At the same time the employees reserve the right to inspect the agreement, prior to its signing. 17 Lovay credibly testified In substance that on one of these occasions, the office girl told Loday that Burgess was out of his office, but would return in about 1 hour, that Lovay requested her to ask Burgess to call Lovay at the latter's hotel when Burgess returned, but that no call was made although Lovay remained in his hotel room for several hours awaiting it, and that when he, Lovay, again called Burgess's office about 4: 45 o'clock on that same afternoon, Lovay was informed that Burgess had left the office for the day. 1s As might be expected, the record fails to show that the parties were entirely In accord on some of terms of the earlier proposal which Lovay claimed had been acceptable to the Respondent. For the most part, these provisions only concerned formal matters conferring no substantial financial benefits to the employees or substantial financial expense to the Employer. The reporter, hired by Burgess to take minutes at all bargaining meetings, was never called to testify. A fair Inference arises that if the minutes would have substantially contradicted Lovay's above version of what transpired at this meeting, the minutes would have been offered in evidence. Accordingly, I accept Lovay's version as substantially accurate, because based upon my observation be impressed me as a reliable and trustworthy witness. GAGNON PLATING AND MANUFACTURING COMPANY 117 This letter tends to support Lovay's earlier testimony that Burgess had agreed at the August 10, 1949 , meeting to prepare a written agreement for consideration by the Respondent's employees.10 Subsequently, by letter, in evidence, dated September 29, 1949, Lovay again attempted to get Burgess to speed up and submit the proposed final draft of a written agreement according to the earlier understanding. This letter reads : Following our telephone conversation of yesterday with respect to the Gagnon contract, and your suggestion of writing you what I have in mind so as to expedite matters, the following is offered. 1.1 is OK 2.1 and 2.2 strike out. 3.1 and 3.2 is OK 4.1 should provide for overtime over the regular eight hours in any one day. This is a universal accepted proceedure in all collective bargain- ing agreements 4.2 is OK with the deleting of the last sentence. 5.1 The past history of the plant [shows that it] has paid a shift bonus for the second and third shifts. This procedure should be continued, and would be in keeping with the desires of the men in that they do not want to loose something that they had already received. 6.1 is OK 6.2 The present wage scale now in effect shall continue for the dura- tion of the contract. Increases beyond this shall be on the basis of merit and ability to do the work. 6.3 is OK 8.1 First sentence is OK 8.2 is OK 9.1 First sentence only. 10.1 is ok 12.1 is OK 13.1 is OK 15.1 (Seniority) The clause submitted to you during one of our sessions is desired. 16.1 is OK 17.1-2 and 3 was agreed on and is acceptable as written. 18.1 and 2 is OK 19.1 is OK 21.1 is OK 22.1 is OK 23.1 (Duration) A one year contract is acceptable however, I would like to suggest a clause in same to the effect that in the event of any unforeseen situation arising that would affect the company or its employees, that upon notice of either party, the contract can be reopened to give consideration to the problem involved only.20 Should there be some of the above points that may not be clear to you, I should like to meet with you the first of the coming week to discuss them so that we may bring this to a conclusion. -- 10 Although the record does not conclusively show that Burgess failed to reply to this letter a fair inference arises that he did not do so,. because Burgess was an intelligent and competent lawyer who no doubt would have offered any written reply to it in evidence, especially if he had not agreed to draft a proposal for a final agreement. 2° It is noted that the numerals appearing in this letter refer to similar numbered para. graphs in the Union 's second contract proposals. 986209-52-vol. 97-9 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD But this letter also failed to awaken Burgess from his lethargic state, at least insofar as causing him to take any action regarding the completion of the bargaining negotiations in the instant case, for on November 10, 1949, Lovay sent the following letter to Burgess : In our telephone conversation this morning you mentioned that I had not informed you as to our position with respect to wages. In my letter to you as of Sept. 29, in which I had outlined the various points that we had agreed to, also made a few suggestions on some that we were not far apart . The matter of wages was outlined as follows. (Quote ) ' The present wage scale now in effect shall continue for the duration of the contract. Increases beyond this shall be on the basis of merit and ability to do the work. It is the writers opinion that that statement is sufficient and should not be misconstrued otherwise . However, I will restate again that while we do not like to accept the wage offered , and knowing the conditions sur- rounding the position of the Company , we will accept the present wage now being paid at this time The writer would appreciate your efforts in trying to complete this con- tract as soon as possible . If another meeting could be had to accomplish this we are ready to do so Will be in the Springs Friday and will call you in regard to the above. According to Lovay, he spoke to Burgess in the latter 's office on or about November 7, 1949, and asked Burgess why the latter had not written up the contract, whereupon Burgess then requested Lovay to draft it, that Lovay did so and handed the third and final proposal ( in evidence ) to Burgess on the following day, and that on this occasion , Burgess took it, remarking at the time that he was too busy to discuss it presently , but they would meet later to consider it." Burgess does not deny receiving the final draft submitted , but asserts that it was handed to him on November 16, 1949, rather than on November 8. Burgess' testimony regarding the date is evidently more reliable for according to Lovay's November 10 letter , he was still waiting for Burgess to draft a pro- posed final agreement , and I find that it was on November 16, 1949, that the Union submitted its third draft of a proposal agreement to the Respondent. After November 16, according to Lovay's credited and undenied testimony, he called Burgess at least once each week attempting to arrange for another bargaining meeting, but was unsuccessful because Burgess always asserted that he was too busy to hold another meeting presently and that he, Burgess, also asserted that Burgess required time to read over the reporter 's transcript taken at their earlier meetings before entering into further negotiations. On December 12, 1949, the Union filed its charge in the case alleging a refusal to bargain. j. Refusal to bargain after the filing of the charge Following the filing of, the said charge, according to Lovay's credited and undenied testimony he called Burgess on the telephone on numerous occasions, but was unable to arrange for another bargaining meeting, because on these 21 It is noted that in this draft Lovay inserted a demand for overtime for all work done in excess of 8 hours on any one day, and also included a provision for a wage differential bonus for night-shift work, two items that Burgess had not agreed upon. The Union no doubt was still trying to insist that the Respondent should agree to some minor financial benefits to employees in view of the fact that it had waived its demand for general wage increases. GAGNON PLATING AND MANUFACTURING COMPANY 119 occasions Burgess invariably asserted that he was too busy to devote any time presently to the Gagnon matter. On February 7, 1950, and again on July 13, 1950, according-to the uncontra- dicted and credited testimony of Cody Quinn, an international representative of the Union, and Lovay, Burgess appeared as counsel for other employers at representation hearings held at Colorado Springs, Colorado, in which the Union herein was also involved. On each of these occasions the two union represent- atives asked Burgess to arrange for another bargaining conference in the instant cases stating at the time that they each believed the parties could reach an agreement upon a contract within an hour. On each of these occasions, Burgess stated in substance, according to the credited and undenied testimony of Quinn and Lovay, that he had been very busy and had been unable to read over the reporter's minutes made during bargaining meetings in the instant case, but would try and do so within a few days and call Lovay in for another meeting, Burgess thereafter never did so. Later in July 1950, according to the credited and undenied testimony of em- ployee Glen Springfield, the Respondent posted a notice on the plant bulletin board, absent any prior understanding with the Union, announcing that it would give the employees a 5-cent an hour wage increase on September 1, 1950, which wage increase was thereafter accordingly duly paid 22 B. Concluding findings Upon the basis of the foregoing findings and the entire record, the issue is whether the Respondent refused to bargain in good faith with the Union. The record convincingly shows that at all times since the Union was designated on February 18, 1949, as the exclusive representative for the employees in the unit found above to be appropriate at an election duly conducted by a Board's agent, the Respondent has failed to recognize its obligation to bargain in good faith with the Union. It not only disregarded several requests made by the Union, soon after the election, to set an early date to begin bargaining negotiations, but it delayed for over 1 month to notify the Union that the Respondent had delegated Thomas Burgess, a busy lawyer of Colorado Springs, Colorado, and its counsel at the hearing, to act for the Respondent as its sole bargaining representative. Because of alleged pressure of his other personal business, Burgess refused to participate in any bargaining meetings lasting over 1 hour and set on days convenient to Burgess. As a result thereof, the union representatives were obliged to participate in seven short bargaining meetings over a period of about 5 months, most of which lasted less than an hour without reaching an agreement or an impasse because of Burgess' insistence that he was unable to devote more time to the matter, and thereafter the Respondent refused to participate in any further negotiations. The reason asserted by the Respondent's bargaining agent for his inability to spend more time on these negotiations hardly meets the requirements imposed on employers by the Act that they bargain in good faith. Under the circum- stances, Burgess should have advised the Respondent to delegate another agent to conduct the bargaining negotiations if for any reason he was unable or unwilling to spend a reasonable amount of time in endeavoring to reach an agreement. 22 It is noted that this is the same increase the Union agreed to accept at the meeting held on June 27, 1949 _ 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . Despite the fact that the parties were apparently in substantial agreement on August 10, 1949, regarding many of the provisions of a proposed contract after the Union offered to waive its demands for any wage increases and to recommend to the employees that the latter approve the contract as tentatively agreed upon provided the Respondent would draft the agreement in final form, and that Burgess on this day agreed to do so, but Burgess thereafter failed to prepare and present such a proposal to the Union. The record further convincingly shows that after this meeting on August 10, the Respondent failed and refused to participate in another bargaining meeting although the Union made numerous requests to resume the negotiations. Moreover, the record further shows that the Respondent granted a unilateral wage increase to all of its employees on September 1, 1950, without consulting the Union, although bargaining negotiations were still pending?' It is axiomatic that the requirements of bargaining under the Act demand sincere efforts to reach an agreement. In determining whether an employer has bargained in good faith, its conduct must be examined 'as a whole for a clear indication of bad faith, as the Board usually will not rely upon any one factor as conclusive evidence that the employer did not genuinely try to reach an agreement. The complaint alleges April 1, 1949, as the date of the first refusal to bargain. But Section 10 (b) of the Act provides, among other things, that no complaint shall issue based upon any unfair labor practices occurring more than 6 months prior to the filing of a charge with the Board. Since the charge herein was not filed until December 12, 1949, the undersigned is of the opinion that a finding of a refusal to bargain more than 6 months prior to December 12, 1949, will not effectuate the purposes and policies of the Act. Nonetheless, the record herein convincingly indicates that numerous refusals to bargain occurred after June 12, 1949, therefore findings thereon may be properly made. Nor can the Respondent successfully urge, under the facts herein, as, in effect, it did at the hearing that alleged refusals to bargain after the charge was filed on December 12, 1949, could not be litigated at the hearing, because no amended charge has ever been filed by the Union, averring refusals to bargain after December 12, 1949, because this defense is without merit 2i On all of the foregoing and the entire record, the undersigned concludes and finds that by failing and refusing to submit counterproposals to the Union on and after June 27, and on and after August 10, 1949,26 by failing to answer the September 8, 1949, letter from the Union,28 by refusing to meet and bargain collectively with the Union at reasonable times after August 10, 1949, and by granting a unilateral general wage increase to its employees on September 1, 1950, without consulting with the Union when bargaining negotiations were still pending," the Respondent has failed to bargain collectively in good faith with the Union as the exclusive representative of its employees in an appropriate unit, thus also interfering with its employees in the exercise of their rights guar- anteed in Section 7 of the Act, and in violation of Section 8 (a) (1) thereof. 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, 22 This conclusion is based upon the undenied and credited testimony of Cody Quinn, a union representative , that as late as July 13, 1950, Burgess agreed to meet again with the Union in an endeavor to consummate an agreement as soon as he could find time to do so 24 Biggs Antique Co., Inc, 80 NLRB 345, 348 ss N. L B. B v. George P. Pilling & Son Co., 119 F 2d 32 (C A. 3). 24 Marshall and Bruce Co., 75 NLRB 90; Sussex Hats, hue., 85 NLRB 399 27 Tennessee Egg Company, 93 NLRB 846 GAGNON PLATING AND MANUFACTURING COMPANY 121 above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondent has engaged in unfair labor practices, it will be recommended that the Respondent cease and desist there- from and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent has refused to bargain collectively with the Union as the exclusive representative of its employees in an appro- priate unit, the undersigned will recommend that the Respondent, upon request, bargain collectively with the Union. Because of the basis of the Respondent's refusal to bargain, as indicated in the facts found, and because of the absence of any evidence that danger of other unfair labor practices is to be anticipated from the Respondent's conduct in the past, the undersigned will not recommend that the Respondent cease and desist from the commission of any other unfair labor practices. Never- theless, in order to effectuate the policies of the Act, the undersigned will recommend that the Respondent cease and desist from the unfair labor prac- tices found and from in any manner interfering with the efforts of the Union to bargain collectively with it 28 Upon the basis of the above findings, and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. International Association of Machinists, Lodge No. 750, is a labor organi- zation within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees in the maintenance and pro- duction departments at the Respondent's plant, excluding all office and clerical employees, truck drivers, guards, professional, and supervisory employees, as defined in the amended Act, constitute a unit appropriate for purposes of collec- tive bargaining within the meaning of Section 9 (b) of the Act. 3. International Association of Machinists, Lodge No. 750, was on February 18, 1949, and at all times thereafter has been, the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing on June 27, August 19, and September 8, 1949, and on September 1, 1950, and at all times thereafter, to bargain collectively with International Association of Machinists, Lodge No. 750, as the exclusive representative of all its employees in an appropriate unit, the Respondent has engaged and is engaging in unfair labor practices, within the meaning of Section 8 (a) (5) of the Act. 5. By the aforesaid refusal to bargain, and by granting a unilateral wage increase to the employees without bargaining with the Union, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the .rights guaranteed in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 ( 6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] n N. L. R. B. v. Express Publishing Company, 312 U. S. 426.