Phelps Dodge Copper Products Corp.

360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD department, office and clerical employees, and the merchandise sta- tistical clerk; but excluding buyers, assistant buyers, leased depart- ment employees, alteration department employees, heads of stock," technical employees, confidential executive employees, and all super- visors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication in this volume.] 8 The parties agree, and we find, that the beads of stock are supervisors as defined In the Act. PHELPS DODGE COPPER PRODUCTS CORPORATION and LOCAL No. 441, INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORKERS, CIO. Case No. 2-CA-1529. November 19, 1952 Decision and Order On February 29, 1952, Trial Examiner Ralph Winkler issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the General. Coun- sel, the Union, and the Respondent filed exceptions to the Intermediate Report and supporting briefs. On October 7, 1952, the Board heard oral argument at Washington, D. C., in which the General Counsel, the Union, and the Respondent participated. 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 briefs, the oral argument, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following addi- tions, modifications, and exceptions. 1. The Trial Examiner found that the Respondent refused to bar- gain on the subject of group insurance, and refused to furnish the Union with the information it requested respecting the existing group insurance plan, in violation of Section 8 (a) (5) and (1) of the Act. The Respondent excepts to these findings on the grounds that it dis- cussed the Union's proposal that the Respondent absorb the cost of the employees' insurance contributions, that it proposed "alter- 101 NLRB No. 103. PHELPS DODGE COPPER PRODUCTS CORPORATION 361 natively" that any money increase be made in the form of an across- the-board wage increase rather than in welfare benefits, and that it traded off the failure to change the existing insurance plan as part of the final wage settlement. We find no merit in these contentions. In 1948, the Respondent instituted a group insurance plan which was not negotiated with the then current bargaining representative. On May 25, 1950, the Union, successor to the earlier bargaining representative, began negotiations with the Respondent leading to a new contract. The Union submitted numerous proposed contract changes, one of which was that the existing group insurance plan, financed by contributions from the Respondent and employees who chose to participate therein, be financed entirely by the Respondent. On June 2, the Respondent counterproposed with a 2-year contract embodying the provisions of the expired contract, which did not cover the existing group insurance plan, and with a 5-cent wage increase effective the second year of the contract. On June 27, the Union submitted to the Respondent a "package" proposal, which would cost 15 cents an hour, comprising : Wage increase-7 cents, adjustment of wage inequities-one-half cent, ad- ditional holiday with pay-one-half cent, extra vacation pay-3 cents, and conversion of group insurance to a noncontributory basis-4 cents. McGlinchey, the Respondent's vice president and principal bargaining representative, replied: " Basically, our feeling is that if there is to be any increase that it should be in the form of a straight across-the-board cents per hour and not any of this fringe stuff-that type of thing which came out of the war situation and through the offices of governmental agencies when there was a ceiling on straight wage increases, and that was a means of getting around the ceiling. There is a sound reason for that because if it is done in the form of a payment of a general across-the-board extra cents per hour,, every employee gets exactly the same. In the case of these fringe things that is not so. You are asking for a 4¢ increase by the company absorbing the entire cost of the group insurance. We want to be friendly ' At the hearing the Trial Examiner admitted the transcripts of certain meetings between the Respondent and the Union only for the purpose of testing credibility because in bis view the reporter did not, take down everything stated at these meetings . The Respondent excepts to the Trial Examiner's qualified admission of the transcripts and, at the oral' argument before the Board, referred to the transcripts as "the best evidence of what occurred" on the issue of the alleged refusal to bargain on group insurance . We believe the testimony of the Respondent 's reporter , Mitchell , as to the method of transcription, taken together with the actual text of the transcripts , indicates that the transcripts contain a substantially complete and accurate account of the meetings in question. Accordingly, we rely substantially upon the transcripts for evidence of what transpired at the June 27 and 29 meetings. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD about it and sincere about it. That is one thing we are not going to do. I will repeat again if there is to be any increase at all, and we don't think there should be for the first year, and the maximum is 5¢ as an extra at the end of the first year-then if there is to be any, it will be in the form of extra cents per hour and not in the form of these fringe things. We don't think it is the right way to get money. We are dealing with money and we think it should be in that exact form where everybody gets that exact amount of the increase which is as it should be. Reitman, principal negotiator for the Union, answered : Then let's forget the 15¢ package and approach it on this basis: . . . We don't say give us 15¢ an hour on the base rate. We say what we are doing is to present to you all the monetary items at one time and when you consider all of those items we are not telling you we want 15¢ in the form of wages and we will take 7¢ in wages and 8¢ on the other items. We say we are basically interested in 7¢ as far as wage increase is con- cerned. We have other items included and for the convenience of discussion we have tried to break down our estimate of what the cost would be to you. Is the cost of these items exhorbitant at the particular time is the question. We may find one of our proposals is out of line. If so we might be able to consider some modifications. If, for example, the cost of group insurance only amounts to 2¢ to the employee then it makes it more difficult for you to say "no" to it because you are dealing only with the question of cost to the company. We are not suggesting that you should arrange to increase the amount of the benefits. We are talking purely and simply about cost. You must recognize the validity of maintaining a policy of this kind. We say the next step is the cost that the company pays for this. We would like to know from you exactly what the cost would be. McGlinchey then reiterated the Respondent's position that the Union's demands were "nothing but a matter of money" and that any increase should be in the form of "extra cents an hour not in fringe." In answer to the Union's request for information as to employee contributions broken down by type of benefit received, the Respondent referred the Union to a booklet setting forth the benefits and the total weekly cost to the employees by pay bracket. The Respondent acknowledged that the booklet did not contain the information sought by the Union but maintained that the information requested was PHELPS DODGE COPPER PRODUCTS CORPORATION 363 irrelevant because all the Union wanted was, in the last analysis, money. Reitman then stated : We ask, in order to be in a position to intelligently discuss the proposition--to find out exactly what does this cost? What do the various items represent in cost to the employee. I have to resort to illustration because I don't have specific facts. . .. Out of 95¢, if it appears 900 goes to health and acci- dent, and I can get the same kind of hospitalization for less than 90¢ without any cost on your part. Suppose you pay 900 for health and accident insurance and we say the Blue Cross costs only 75¢ where you have been paying $1.80-we ask you to take the Blue Cross plan and it's a saving of 15¢ to you and 900 to us. We might say yes or no but we are entitled to know what the 95¢ is being used for that the fellows are paying. Is it to allow the insurance company to accumulate premiums or is it reflected in the coverage the employee gets? McGlinchey replied : Here's what you are asking-you don't want to change it any way. "We are asking you to pay the entire cost whatever that entire cost is." We say it's just a matter of money and a form of getting more money and we don't agree to that form of getting more money. * * * * * * * Reitman declared : But what we want to know is what portion of our 950 goes to purchase life insurance, what portion accidental and so forth for each of these items. ... Under Blue Cross we know hos- pitalization runs 61¢ a month per employee. We know that and if we find that this plan is in excess of that we say "Let's change the company ; dissolve the program and so forth." Those are the reasons we want to know what our 95¢ is buying and we are perfectly justified and entitled to get the information from you, especially since it was set up by you. You must comply with that reasonable request to enable us to negotiate intelligently the insurance proposition with you. We ask you to tell us what portion of the 95¢ goes for each one of the items and in turn how much does the company pay for each of these items. It may be the premium payments are erroneously set up. That's certainly a proper issue within the scope of collective bargaining. You say repeatedly that this is a fringe issue . We say that if we can come back-from this information-and tell you you can get the same coverage at a reduced cost or where you don't have to 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD increase your costs, then you could say "change the company" and would be a saving to us but would cost you no more money ... . McGlinchey answered : There are certain things we will do and certain things we will not do. One thing is a matter of policy. We will not change that cost of insurance. The Union then sought to obtain information as to the Respondent's group insurance premiums and dividends on the ground that such information was necessary to determine whether the employees were entitled to share in any dividends the Respondents may have received. 'The following dialogue ensued : MCGLINCHEY : No. After listening to you fellows talk, we have heard all your arguments. We know what you are asking and you are asking for two things : 1. The possibility of changing the plan around in some way. We say frankly we will not do it as a matter of straight policy with the company on this insur- ance plan. On the other element-money-you ask the company to pay the entire cost. We have told you our position on that and you have made your position clear and so have we .. . REITMAN : Let's discount the company's cost on this. What we are trying to find out is whether or not there is any value in continuing discussion on the insurance program and what we are getting for the 95¢ we are paying. MCGLINCHEY : That can have no value except on a request to change the plan or dropping something out. REITMAN: Will you consider a change? MCGLINCHEY : No. On June 29, 1950, the Union sought to discuss what it regarded as shortcomings in the hospitalization features of the Respondent's plan as compared with certain other named plans, queried the Re- spondent as to whether is would be adverse to substituting a new plan if it were shown that greater benefits could be obtained without chang- ing the amount of the contributions, and repeated its request for information. McGlinchey stated that the Respondent had made all the surveys necessary, that its plan was the best for the money, that it was not going to "fiddle" with insurance, and that the insurance plan was not a partnership proposition at all. What we said was this : "We will get you coverage and have you covered by specified insurance for a weekly payment of 90 cents." That's all there is to it. ,PHELPS DODGE COPPER PRODUCTS CORPORATION 365 On July 20, 1950, the Respondent conceded in modified form several of the Union's other demands and offered an immediate 5-cent wage increase. It made no reference to insurance. A total strike began on July 24 and ended on October 19,2 with the signing of a 2-year contract which contained no provision for group insurance but granted an immediate 5-cent wage increase and 10 cents additional on December 1, and which contained a waiver clause.3 The Supreme Court has recently noted in the American National Insurance case 4 that the duty to bargain is "enforced by application of the good faith bargaining standards of Section 8 (d) to the facts of each case. . . ." Accordingly, the Board must determine whether, on the evidence of this case viewed as a whole, the Respondent's posi- tion and course of conduct with regard to the Union's group insurance demand constituted an evasion or a fulfillment of the statutory duty to bargain collectively in good faith. In assessing the bona fides of the Respondent's attitude on group insurance, we regard as particu- larly signficant the Respondent's stand with respect to furnishing the insurance information sought by the Union, information germane to the subject matter and which only the Respondent possessed. We think the evidence plain that the Union's basic objective was to achieve alterations in the existing insurance plan, which its limited information indicated was unnecessarily expensive and inadequate. That objective, the Union maintained, could not be equated to, and consequently could not be served by, a wage increase. To that end the Union sought to convince the Respondent by facts and figures of the soundness of its view that the insurance plan, which hitherto had not been the subject of bargaining, was an issue separate and distinct from the question of wages. As the transcript record of the negotiations makes clear, the origi- nal proposal for the Respondent's absorption of employee contribu- tions was the Union's way of advancing for discussion the general adequacy of the existing plan. The Union stood ready to revise 2 On August 24, 1950 , at a meeting at the Board's Regional Office to discuss charges filed by the Union on July 27, the Respondent reiterated its earlier refusal to furnish the Union with group insurance information. 3 The waiver clause, which read as follows , did not purport to withdraw the charges previously filed alleging violations of the Act including a refusal to bargain and to furnish information on group insurance : The parties hereto specifically waive any rights which either may have to bargain collectively with the other during the life of this Agreement between the parties, on any matter pertaining to rates of pay, wages, hours or other terms and conditions of employment whether or not covered by this Agreement, except that on or after December 1, 1951, and prior to December 1, 1952, the Union may only once open negotiations and then only with respect to a demand for a general across -the-board extra cents per hour wage increase. 4 N. L. R. B. v. American National Insurance Company, 343 U. S. 395. See Majure Transport Company Y. N. L. R. B., 198 F. 2d 735 (C. A. 5) ; N. L. R. B. Y. Deena Artware, Inc., 198 F. 2d 645' (C. A. 6). 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its proposal if relevant data, analysis, and discussion pointed to reasonable alternatives. But the Respondent would not join issue. It repeatedly maintained that the Union's request was solely one for money and adamantly refused to consider the subject of insurance as such.' The Respondent, further, flatly asserted that it would not bargain with the Union on insurance, stating in effect that the Union would have to take it in its present form. The inference seems in- escapable that the Respondent sought to rationalize its predetermina- tion not to enter into a discussion of insurance by casting the Union's insurance demand into terms which made bargaining on that issue impossible. Furthermore, the Respondent refused to furnish the Union with the insurance information which it requested, and which we regard, in the circumstances of this case, as having been clearly necessary to intelligent bargaining. The arbitrary and stultifying character of the refusal becomes all the more apparent when the Respondent's insistence that the Union's demand was unalterably fixed at 4 cents, cloaked in the guise of insurance, is considered in the light of the Respondent's denial to the Union of the very information necessary to provide a test of the reasonableness of the Union's estimate. Mani- festly, the Respondent's refusal to furnish any information was intimately bound up with its insistence that it would not deal on insurance, and tends itself to reveal the nature of the Respondent's over-all attitude.° Had the Respondent been ready to provide the information, we might view the case in a different posture. Of course the Respondent was not required to make a concession or to agree to any change in the insurance plan. That is not to say, however, that it could arbitrarily disregard the Union's request for information and its request to treat insurance as insurance by the stratagem of repeatedly asserting "all you want is money." To sanction this approach to the Act's requirement of bargaining in good faith, in our considered judgment, would be tantamount to approving a ready contrivance for eliminating bargaining on many conditions of employment solely because they may possess monetary aspects. Moreover, as we construe the Supreme Court's decision in the American National Insurance case, at the very least the Respond- ent was required to hold itself open to persuasion as to why group insurance standards should be the subject of bargaining rather than remain untouched in favor of an across-the-board increase. The 5 The transcript of the June 29 meeting additionally reveals the Respondent's opposi- tion to any genuine discussion of the group insurance issue. Thus McOlinchey at times commenced to answer the Union' s contentions with regard to the existing plan's alleged inadequacy only to fall back upon the refrain, "all you want is money." N. L. R. B. v. J. H. Allison G Company, 165 F. 2d 766 (C. A. 6), cert. den., 885 U. S. 914; N. L. R. B. v. The Jacobs Manufacturing Company, 196 F. 2d 680 (C. A. 2). PHELPS DODGE COPPER PRODUCTS CORPORATION 367 Respondent's attitude on insurance, we believe, comported not with "bargaining for more flexible treatment" of conditions of employ- ment, as that standard is defined by the Supreme Court, but with a steadfast refusal to discuss any aspect of insurance. Finally, on the facts in this record, we do not regard the 15-cent settlement contained in the October 1950 contract as representing a bargaining-away of the Union's insurance proposal. The Union never abandoned its request that insurance be treated as insurance and that it be given the information it sought 7 Moreover, the record is clear that the 15-cent wage settlement was arrived at as the result of the existence of a similar wage pattern established at other plants of the Respondent during the period in controversy s The Respondent's unwillingness to recognize insurance as a bargain- ing issue, th* persistent refusal to enter into a genuine discussion of any aspect of insurance, the failure to furnish relevant information necessary to enable the Union to present further proposals and permit intelligent bargaining on the subject, and the flat assertions that no change in the insurance plan would be considered, in our opinion, demonstrate that the Respondent was motivated by a desire to evade its statutory duty to bargain in good faith on the subject of insurance. Accordingly, we find that the Respondent, on June 29, 1950, refused to bargain concerning group insurance, in violation of Section 8 (a) (5) and (1) of the Act. 2. We agree with the Trial Examiner that the Respondent did not refuse to bargain on the subject of pensions. Accordingly, we shall dismiss this allegation of the complaint. 3. The Respondent excepts to the Trial Examiner's finding that by refusing to bargain with the Union during a slowdown, the Respondent violated Section 8 (a) (5) of the Act. As the Trial Examiner found, during negotiations leading, to a new contract, and in the absence of an interim contract, the Union- sought to implement its bargaining position by directing employees to withhold incentive production and overtime work. The Respond- ent refused to negotiate from June 13 to June 19, 1950, the period of the slowdown, but resumed negotiations as soon as the Union called off the slowdown. It did not discharge any employees for partici- 7 In its brief, the Respondent points to the fact that upon signing the waiver , the union officials asked for noncontributory insurance which the Respondent rejected , and that this constituted a "bargain ." However, in referring to the waiver clause , the union officials stated that as the Respondent took the waiver clause from the General Motors contract, it ought also to include the pension and insurance plans contained in that agreement. We find that this was no more than passing comment of no significance with respect to the "bargain" reached. 8 Shortly before the Union 's request for the October 19 meeting with the Respondent, wage settlements of 10 cents , in addition to the 5 cents previously agreed upon, were reached at the Fort Wayne , Indiana, and Yonkers , New York, plants of the Respondent. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pating in the slowdown, as it would have had a right to do under established Board and court precedents. While the precise issue here is one of first impression, the area is not without guideposts. Although the Union's majority standing re- mained unaffected during the course of the slowdown, this alone does not provide the touchstone of the Respondent's bargaining obligation under the Act. Under unusual circumstances, a union may, by con- temporaneous action in connection with bargaining, afford an em- ployer grounds for refusing to bargain so long as that conduct continues. This is so because it cannot be determined whether or not. an employer is wanting in good faith where measurement of this critical standard is precluded by an absence of fair dealing on the part of the employees' bargaining representative.' We believe that the Union exhibited just such a lack of fair dealing here, by calling a slowdown in an effort to compel the Respondent to accede to bargaining demands. It is well established that a slowdown is a form of concerted activity unprotected by the Act." The vice of the slowdown derives in part from the attempted dictation by employees, through this conduct, of their own terms of employment. They are accepting com- pensation from their employer without giving him a regular return of work done. In the Wisconsin case,11 the Supreme Court recently likened to a slowdown a union's intermittent work stoppages following unsuccessful bargaining negotiations and described both as "coercive." In the instant case, by engaging in the slowdown, the Union sub- jected the Respondent to a partial strike designed to bring pressure for acceptance of its terms. The Union was unwilling to choose between working under the existing terms of employment and engag- ing in a total strike with the loss of wages and the risk of lawful replacement incident thereto. Instead it engaged in a harassing tactic irreconcilable with the Act's requirement of reasoned discussion in a background of balanced bargaining relations upon which good faith bargaining must rest. Accordingly, whether or not the Respondent exercised its right to discharge the participants, we believe the authorized slowdown negated the existence of honest and sincere dealing in the Union's contemporaneous request to negotiate. In these circumstances, the Respondent was not required to indulge in the futile gesture of honoring the Union's request. For the foregoing reasons, we find that the Respondent's normal obligation to bargain was suspended, and that it did not violate Section 8 (a) (5) of the Act by refusing to bargain during the period of the slowdown. We 0 Times Publishing Company, 72 NLRB 676. 10 Elk Lumber Company, 91 NLRB 333, and cases cites] therein. 11 International Union, U. A. TV., et at. v. Wisconsin Itmployment Relations Board, et at., 336 U. S. 245. PHELPS DODGE COPPER PRODUCTS CORPORATION 369 shall therefore reverse the Trial Examiner and dismiss this allegation of the complaint. 4. We agree with the Trial Examiner that on June 29, 1950, the Respondent changed the method of computing vacation pay for its 5-year employees without consulting with or notifying the Union, thereby violating Section 8 (a) (5) and (1) of the Act. In view of the latter settlement of the vacation pay grievance, and the provision in the October 1950 contract establishing the basis of future vacation payments, we shall, like the Trial Examiner, provide only for a cease-and-desist order respecting this unlawful conduct. 5. Like the Trial Examiner, we find, contrary to the exceptions of the Respondent, that the Union engaged in a total strike during the period July 10 to July 17, 1950, in protest against the Respondent's unilateral change in vacation pay; that this strike was therefore an unfair labor practice strike; and that the Respondent violated Section 8 (a) (5) and (1) of the Act by refusing to bargain during the 1-week strike.12 6. For the reasons set forth in the Intermediate Report, we agree with the Trial Examiner that the refusal of Brown, an official of the Respondent, to include Iozzi and Weirauch, union representatives, in the meeting on October 19, 1950, with Carey, union president, was not violative of Section 8 (a) (5) and (1) of the Act. We shall therefore dismiss this allegation of the complaint. 7. Contrary to the exceptions of the General Counsel and the Union, we find, as did the Trial Examiner, that the General Counsel has failed to prove, upon a preponderance of the evidence, that the Re- spondent withheld the agreed upon wage increase as a penalty for the Union's previous strike actions in violation of Section 8 (a) (3) of the Act.13 We shall therefore dismiss this allegation in the complaint. The Remedy As we have found that on June 29, 1950, the Respondent refused to bargain on group insurance, in violation of Section 8 (a) (5) and (1) of the Act, the later execution of the agreement containing a waiver of the right of either party to bargain collectively during its term on wages and conditions of employment, except for a wage reopening, cannot render moot the earlier violation of the Act 14 Moreover, as 'a In so finding, we do not rely upon the Trial Examiner 's additional holding that even if the 1-week strike be regarded as unprotected , the obligation to bargain continued during this period. i' We regard as particularly significant in this connection the pattern of ware increases established at four other plants of the Respondent, under which a 5-cent increase went into effect between April and July 1950, with an additional 10-cent increase becoming effective at three of these plants in October 1950 and at the fourth plant in December 1950, 14N. L. R. B v. American National Insurance Company, supra, and cases cited therein, 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the October 1950 contract will expire shortly on December 1, 1952, we need not pass upon the Trial Examiner's finding that the waiver postponed the Respondent's obligation to bargain on insurance for the life of the agreement. Accordingly, in order to effectuate the policies of the Act, we shall order the Respondent to bargain with the Union on the subject of group insurance and to furnish relevant information. 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, Phelps Dodge Copper Prod- ucts Corporation, Elizabeth, New Jersey, its officers, agents, succes- sors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Local No. 441, Interna- tional Union of Electrical, Radio & Machine Workers, CIO, as the exclusive representative of all hourly rated production and mainte- nance employees at the Respondent's Elizabeth, New Jersey, plant, including mill or production clerks and inspectors, but excluding office and clerical employees, technical and engineering employees, timekeepers, watchmen, guards, foremen, assistant foremen, and all other supervisors as defined in the Act, with respect to group insur- ance, including the refusal to furnish relevant information concern- ing the existing insurance program. (b) Refusing to bargain collectively with the above-named Union as the exclusive representative of all its employees in the above-de- scribed unit during a strike within the meaning of the Act, where such strike does not contravene a collective bargaining agreement. (c) Making any unilateral changes in vacation pay affecting em- ployees in the above-described unit without first notifying and nego- tiating thereon with the above-named Union. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Local No. 441, Inter- national Union of Electrical, Radio & Machine Workers, CIO, as the exclusive representatives of all employees in the above-described unit, with respect to group insurance and, if an understanding is reached, embody such understanding in a signed agreement if requested by the above-named Union; and furnish to the above-named Union all in- formation relevant to negotiating changes in the present group insur- ance program, including the amount of contributions paid by the Respondent and by the employees as distributed among the various benefits under the program, the amount of dividends, if any, received PHELPS DODGE COPPER PRODUCTS CORPORATION 371 by the Respondent under the program , the amount of dividends, if any, retained by the Respondent, and the amount of dividends , if any, applied to the cost of the program. (b) Post at its plant at Elizabeth, New Jersey, copies of the notice attached hereto marked "Appendix A." 18 Copies of said notice, to be furnished by the Regional Director for the Section Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty ( 60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not alteredl defaced, or covered by any other material. (c) Notify the Regional Director for the Second Region in writing, within ten ( 10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed, insofar as it alleges that the Respondent has violated Sec- tion 8 (a) (5) and (1) of the Act by refusing to bargain on pensions, refusing to bargain during a slowdown , and refusing to meet with designated union representatives ; and that the Respondent has vio- lated Section 8 (a) (3) and (1) of the Act by withholding a wage in- crease because employees had engaged in a strike. 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 as amended, we hereby notify our employees that: WE WILL, upon request, bargain collectively with Local 441, INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORRI- ERS, CIO, as the exclusive representative of all employees in the bargaining unit described herein with respect to group insurance, and will furnish to that labor organization all relevant informa- tion concerning the negotiation of changes in the present insur- ance program, including the amount of contributions paid by the respondent and by the employees as distributed among the various benefits under the program, the amount of dividends, if any, received by the respondent from the program, the amount of dividends, if any, retained by the respondent, and the amount of dividends, if any, applied to the cost of the program. is In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order," the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 242305-53-25 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT refuse to bargain collectively with LOCAL No. 441, INTERNATIONAL UNION OF ELECTRICAL, RADIO & MACHINE WORK- ERS, CIO, as the exclusive representative of all employees in the bargaining unit described herein during a strike within the mean- ing of the Act, where such strike does not contravene a collective bargaining agreement. WE WILL NOT make any unilateral changes in vacation pay affecting employees in the bargaining unit described herein with- out prior consultation with the above-named union. The bargaining unit is: All hourly rated production and main- tenance employees at the Respondent's Elizabeth, New Jersey, plant, including mill or production clerks and inspectors, but excluding office and clerical employees, technical and engineering employees, timekeepers, watchmen, guards, foremen, assistant foremen, and all other supervisors as defined in the Act. PHELPS DODGE COPPER PRODUCTS CORPORATION, Employer. By ------------------------------------------------ (Representative ) (Title) Dated ------------------------ This notice must remain posted 60 days from the date hereof and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon charges and amended charges filed by Local No. 441, international Union of Electrical, Radio & Machine Workers, CIO, herein called the Union, the General Counsel for the National Labor Relations Board, by the Regional Director for the Second Region (New York, New York), issued a complaint dated September 26, 1951, against Phelps Dodge Copper Products Corporation, herein called the Respondent, alleging that the Respondent had engaged in specified conduct violating Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act. Copies of the complaint and charges were served upon the Respondent, where- upon the Respondent filed an answer denying the commission of the unfair labor practices alleged. Pursuant to notice, a hearing was held in New York City, from November 21 until November 29, 1951, before the undersigned Trial Examiner. The General Counsel, the Respondent, and the Union were represented by counsel and all parties were afforded full opportunity to be heard, to examine and cross-examine the witnesses, and to introduce evidence bearing on the issues. At the hearing the General Counsel was permitted to amend the complaint, whereupon the Respondent amended its answer to deny the commission of the further unfair labor practices alleged. The undersigned reserved ruling on the Respondent's motion to dismiss the proceeding and such motion is disposed of in accordance with the following findings of fact and conclusions of law. PHELPS DODGE COPPER PRODUCTS CORPORATION 373 The parties were granted opportunity to present oral argument before the Trial Examiner, and they were also granted permission to file briefs and pro- posed findings of fact and conclusions of law. I have carefully considered the very competent briefs filed by the Union and the Respondent, and I adopt only such proposed findings and conclusions submitted by the Respondent as are consistent with the findings and conclusions to follow. Upon the entire record in the case, and upon observation of the demeanor of witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Delaware corporation with plants in several States, in- cluding its Bayway plant in the city of Elizabeth, New Jersey, where it is en- gaged in the manufacture, sale, and distribution of copper and brass wire, cable, tubing, and related products. During the year ending August 31, 1951, the Respondent's Bayway purchases and manufactured products respectively ex- ceeded $100,000 of which at least 75 percent involved interstate shipments. I find that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES The Issues Involved This case involves employees at the Respondent's Bayway operations. In 1946, the Respondent and an affiliated local of another labor organization, United Electrical, Radio and Machine Workers of America (UE), executed a collective bargaining agreement covering substantially the same unit of em- ployees as is involved in the present proceeding. This contract expired on May 1, 1950. Following a Board-directed election in Case No. 2-RC-1792, Local 441 (IUE-CIO), the Union in this case, was certified as the statutory bargaining representative on May 18, 1950, and no question is raised in this proceeding, and none exists, concerning the Union's status as exclusive bargaining representative for this certified appropriate unit since that date. On May 25, 1950, the Union and the Respondent opened negotiations for a new agreement and after a series of approximately 10 meetings the parties concluded negotiations on October 19, 1950, with the execution of a new contract dated that day and signed shortly afterwards and which by its terms runs until Decem- ber 1, 1952. The complaint, as amended and further particularized at the hearing , alleges as violations by the Respondent, the following conduct which allegedly occurred during the period of negotiations beginning May 25, 1950, and before execution of the October 1950 contract: 1. Refusal to bargain collectively with respect to a pension plan and a group insurance program and a refusal to furnish the Union with information re- quested by the Union concerning an existing group insurance program. 2. Refusal to bargain collectively on or about June 13, 1950, because the em- ployees were engaging in a slowdown. 3. Unilaterally changing vacation payments to employees without negotiation with, or notice to, the Union. 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Refusal to bargain collectively on or about July 13, 1950, because the employees were engaging in a limited work stoppage. 5. Refusal to meet and confer with designated representatives of the Union on October 19,1950. 6. Withholding a wage increase because the employees had engaged in a strike. Except as to matters specified above, the General Counsel does not contend that the Respondent has generally refused to bargain or that it failed to bargain in good faith; and he also does not contend that the Respondent engaged in unlawful conduct after execution of the October 1950 agreement. A. Pensions and insurance The Union submitted a proposed contract to the Respondent at their first bargaining session on May 25, 1950. This contract contained many modifications and additions to the terms of the prior agreement and also provided for increased financial benefits, including a change in financing the existing insurance pro- gram, the establishment of a noncontributory pension plan, wage increases, additional paid holidays, vacations, etc. The Respondent had established an insurance program for its employees in 1948 providing for hospitalization, life insurance, and other related benefits and covering only such individual employees who subscribed to it. As originally established, both the employees and the Respondent participated in financing the program. The Union's May 25 proposal sought to convert the existing insur- ance plan to a noncontributing one, by having the Respondent pay the entire cost of premiums. There was no operating pension plan in May 1950, and none had ever been established,' and the Union's May 25 proposals requested institution of such program. The General Counsel contends that the Respondent's refusal to negotiate con- cerning pensions and insurance occurred at meetings held on June 2, 27, and 29, 1950; the Respondent claims that the pension issue was not even raised after the May 25 meeting. I shall relate the testimony respecting the parties' con- sideration of these matters at all meetings, and because both matters are an aspect of the general financial situation I shall also set forth the agreements on other disputed monetary issues which the parties reached at the various meetings. The May 25 meeting was devoted to an explanation by the Union of its various proposals, At the next session, on June 2, the Respondent stated its unwillingness to accept the Union's proposed contract of May 25 and it counterproposed an agreement for a 2-year term embodying the provisions of the recently expired contract and also providing for a 5-cent hourly increase to go into effect at the end of the first year of the contract term. Following general discussion, the parties took up the Union's May 25 proposals seriatim, but they did not cover all the items that day. Cashmir Sidlowski, a union officer and a member of its negotiating committee, testified concerning the negotiations on June 2 but did not state in his direct examination by the General Counsel that pensions or insurance was mentioned at this meeting; in fact, he testified that the parties only reached that portion of the Union's proposals dealing with "hours of I The October 1950 contract which concluded the negotiations under consideration re- fers in article X to the "Company's Retirement Plan." This item was not mentioned at the hearing and, in the absence of explanation, I am unable to consider its impact, if any, on the pension issue presented. PHELPS DODGE COPPER PRODUCTS CORPORATION 375 work and incentive," which precedes the insurance and pension clauses pro- posed ; however, he later testified, as did Joseph Iozzi, the president of the Union and chairman of the committee, that the Respondent had refused to consider or even to discuss pensions at this meeting. D. F. McGlinchey, a vice president of Respondent and its principal bargaining representative, denied that the subject of pensions arose at this meeting.' Further meetings were held on June 9, 13, 21, 22, and 23, without mention of either pensions or insurance during the discussions. At the June 21 session, the Respondent made some concessions to the Union's demands, none of them of financial consequence, except, perhaps, an agreement that in laying off em- ployees the Respondent would pay affected employees the amount of their next paid holiday. On June 27 and 29, when the next meetings were held, the Union modified and consolidated its financial demands and submitted such consolidation in the form of a 15-cent package proposal. The 15 cents represented the hourly cost per employee to the Respondent with the following breakdown : Additional paid holiday-one-half cent ; conversion of insurance program to a noncontributing one-4 cents ; extra vacation pay-3 cents ; wage increase-7 cents ; and adjust- ment of inequities-one-half cent. When the Union submitted this package pro- posal, McGlinchey, the Respondent's representative, said that the Respondent would only grant greater monetary benefits in across-the-board wage increases and that it would not do so in the form of "fringe benefits" as McGlinchey char- acterized the items other than the requested wage increase in the package proposal. During these meetings of June 27 and 29, and after it appeared that the Respondent would not negotiate on the so-called "fringe benefit" of con- verting the insurance plan to a noncontributing one, and the Respondent's own transcribed notes of these meetings show that McGlinchey repeatedly stated that as a matter of company policy the Respondent would entertain no changes in the existing insurance program, the Union sought to discuss with the Respond- ent whether the employees might not obtain similar coverage in other insurance plans (for example, Blue Cross and Blue Shield) at less cost to the employees or whether the employees might not obtain greater coverage in other insurance plans at the same cost to them as their present insurance and even without greater cost to the Respondent or whether it might not be advantageous to combine the benefits of several plans. And for the stated purpose of negotiating on this subject with the Respondent, the Union requested the following infor- mation : 1. The amount or percentage of the Respondent's contribution to the cost of the insurance program. 2. The amount of dividends, if any, received by the Respondent from the insurance program. 3. Whether the Respondent retained the dividends, if any, or applied them to the cost of the insurance. 4. A breakdown of the amount of premiums paid as distributed among the various benefits received under the program. For example, what percentage f The Respondent had a shorthand reporter , one of its own staff, taking the negotiation meetings, and Sidlowski also made fragmentary longhand notes at the meeting. Some of Sidlowski's notes are in evidence, as are the transcription of the notes taken by the Respondent at some meetings . In receiving the Respondent's notes, I stated that I would consider them for corroboration or credibility purposes only, preferring, under the circum- stances, to rely upon the testimony of witnesses because I was not satisfied that the re- porter in question took down or at least transcribed everything said at the meetings. This limitation , however, does not preclude unlimited use of the notes and transcriptions as to any admissions or other statements against interest appearing in them. 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the premiums went toward payment of each of the respective benefits covered by the program. 5. Whether or not the Respondent was connected with the insurance company. Claiming at the negotiations and at the hearing that this information was irrelevant to the matters under negotiation because it was not asserting an in- ability to pay the increased costs as its reason for opposing a change in the insurance program, the Respondent refused to supply any of the information to the Union, although such data was readily available to the Respondent; McGlinchey merely gave the union committee a pamphlet describing the various benefits offered under the plan and stating the amount of the employees', but not the Respondent's, contribution for such coverage.' The Respondent's posi- tion throughout the negotiations and at the hearing as well was that the Insurance program was something the Respondent made available to the em- ployees at the latter's option, that it was the best coverage for the money (but which it made no attempt to substantiate, although the Union raised this precise issue during bargaining), and that, as McGlinchey stated at the June 29 meet- ing, "We are not going into any other plan, and we tell you frankly we are not going to change this plan or fiddle around with it making substitutions or deletions." And when the Union urged that the Respondent and the Union were in the insurance program as "partners," McGlinchey replied that "This is not a partnership proposition at all. What we said [when the program was established in 1948] was this: `We will get your coverage and have you covered by specified insurance for a weekly payment of 90 cents.' That's all there is to it." Sidlowski testified at one point that the afore-mentioned package proposal as first submitted to the Respondent on June 27 contained a pension item at one-half cent rather than the "inequity" item, and that the inequity item was inserted as a substitute after the Respondent refused to discuss pensions. He also testified that the package was not presented to the Respondent, or even considered or prepared by the Union, until sometime during the course of that meeting. How- ever, Sidlowski also testified that the parties never really got into the pension plan at the meeting, that the union committee had the package before the meeting began, and that the package submitted to the Respondent never had contained a pension item because of the Respondent's prior refusal to take up such matter. According to Iozzi, the only other witness testifying concerning the June 27 and 29 meetings for the General Counsel, the package never included a pension item and was not prepared until after a recess at the June 27 meeting, not much was said about pensions at the June 27 meeting, and McGlinchey stated there was no need to discuss pensions for none will be granted. McGlinchey testified that the subject of pension was not even mentioned at the June 27 or 29 meetings and that such item was never included in any package which the Union submitted to the Respondent. The parties held their next bargaining session on July 20. At this meeting the Respondent presented a new set of counterproposals conceding in modified form several of the Union's other outstanding demands. These counterproposals in- cluded by way of increased financial benefits the granting of an immediate 5-cent raise and also providing that payment of "extras" be added to the hiring rate and that incentive pay be given to employees as soon as they demonstrate their competency. The Respondent's new counterproposals also provided that the contract might be opened once during its 2-year term, and then only for an across- the-board increase. McGlinchey stated at the time that this was the Respondent's final offer. There was no reference to pensions or insurance at this meeting. • At the hearing, the Respondent answered question number 5, above, to the effect that it was not connected with the insurance company involved. PHELPS DODGE COPPER PRODUCTS CORPORATION 377 Pursuant to a vote of its membership, the Union went out on strike on July 24 and did not return until the parties reached their agreement in October 1950. The parties next met at the Board's Regional Office on August 24, 1950, when, in the presence of a Board field examiner, they stated their respective positions on the course taken by the bargaining. The field examiner then prepared a memorandum of this meeting, copies of which he sent to each of the parties with the statement that "if you desire to change, amplify, or correct any of the statements made in my memorandum, please feel free to do so." The Re- spondent thereupon suggested several changes by a return letter , noting, how- ever, that the memorandum covered only the highlights of what was said at the meeting but that it was not regarded as a stipulation of fact . The Respondent did not advert to pensions at this meeting, as far as the memorandum discloses. The memorandum shows that the Union did state at the meeting that the Union had raised the question of pensions at the June 27 and 29 meetings , but that the Respondent had said there was no point in discussing the matter because it would not institute any such program . The Respondent's return letter did not suggest a change in the memorandum with respect to the Union 's making these comments on the insurance pension matter. The memorandum shows further that the Respondent reiterated its refusal to supply the information requested by the Union in regard to financing the group insurance program. In August 1950, a few days after the August 24 meeting , McGlinchey met with James B. Carey (president of the IUE-CIO ), another international official named Hartnett, Weihrauch ( an IUE vice president and the president of Dis- trict #4 with jurisdiction over Local 441), and an unidentified international representative. This particular meeting was apparently held at Carey's re- quest. At this meeting, the Respondent presented a copy of its July 20 proposals with new proposals concerning future vacation payments and dealing with a separate question of 1950 vacation pay, which latter matter is hereinafter dis- cussed under a separate heading. This proposed agreement also contained a clause waiving all further negotiations on any subject , whether or not covered by the agreement, for the 2-year term of the agreement, except to permit a reopening for an across-the-board wage increase.` Carey and Wylie Brown, the latter the then chairman of the Board of the Respondent, had a telephone conversation in October 1950 concerning the dispute and arranged a meeting on October 19 to discuss the matter . Separate meetings were held that day between Carey for the Union and McGlinchey and Brown for the Respondent, and between Carey , lozzi, and Weihrauch for the Union and McGlinchey for the Respondent . At these meetings the conferees reached an agreement which the parties later executed , containing the terms of the Re- spondent's July 20 proposal as modified at the second August meeting and also including an agreement that the employees would not lose any 1951 vacation pay because of their absence from work during the strike. Additionally included was a provision for another increase of 10 cents to commence in December 1950. The agreement finally reached on October 19 does not refer to either insurance or pension plans ; however , it does contain the following waiver clause in the The parties are in disagreement as to whether , apart from the permitted reopening for an across -the-board increase, the proposals submitted by the Respondent on July 20 also contained this waiver provision . I do not consider resolution of this fact to be crucial to the issues presented. 5 Article x, paragraph 4, of this October 1950 contract does mention the term "Group Insurance," but only in connection with employees in military service. The parties do not advert to this provision and I am therefore unable to consider its effect , if any, on the issues involved. 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract which McGlinchey had presented to the union representatives at the second meeting in August 1950: The parties hereto specifically waive any rights which either may have to bargain collectively with the other during the life of this Agreement between the parties, on any matter pertaining to rates of pay, wages, hours or other terms and conditions of employment whether or not covered by this Agree- ment, except that on or after December 1, 1951, and prior to December 1, 1952, the Union may only once open negotiations and then only with respect to a demand for a general across-the-board extra cents per hour wage increase. The General Counsel offered testimony to the effect that the union representa- tives at the October 19 meeting objected to the waiver provision, but that they finally accepted the provision by initialing it that day because of McGlinchey's statement, which McGlinchey denies making, that it was a necessary provision of the contract.' lozzi, Weihrauch, and Carey also testified in effect that in remonstrating concerning this provision, which had been taken from a contract of another company, Carey told McGlinchey that if the Respondent insisted on the waiver clause the Respondent should also grant the pension and welfare provisions of the other company's contract, but that McGlinchey rejected this request. McGlinchey testified that the only discussion respecting the waiver clause involved the Union's concern that such provision might foreclose the processing of grievances during the contract term. That this was the Union's principal stated objection' to the waiver clause is indicated by Carey's testimony. Carey testified that inclusion of the waiver clause was "not a very significant matter" at the time, and it is undisputed that McGlinchey assured the Union that the contract does not and was not intended to waive any grievance matters. Weihrauch further testified, and McGlinchey in effect denies, that Carey ex- pressly stated to McGlinchey at the time the union representatives initialed the waiver clause that the Union was reserving all "rights for collective bargaining on all subjects" including processing of the instant unfair labor practice charges which had been filed and were pending at the time. The parties executed the agreement which their representatives reached on October 19, and each signatory separately executed the waiver supplement in addition to all other matters agreed upon. The following year, on October 22, 1951, while the 1950 contract had another year to run, the parties reopened the contract pursuant to its reopening clause and they executed a separate agree- ment containing a wage increase. This new agreement also provided that, upon the satisfaction of certain specified conditions, the parties would execute a "Pension Plane Agreement" for a 5-year term along the lines of a so-called "Chase Plan" described in this October 1951 agreement. The record does not disclose whether further pension action was taken by the parties under this agreement, presumably because the hearing in this matter was held shortly after the 1951 agreement was executed. Resolution of the Pension and Insurance Issues The General Counsel alleges that the Respondent refused to bargain concerning pensions and insurance at the June 2, 27, and 29 meetings. The Respondent A The waiver provision , the provision for a wage increase, and the provision for only one reopening were contained in the same contract supplement. 7lozzi testified that his concern respecting the waiver clause was its impact , if any, on existing plant practices which were not incorporated in the contract but which practices McGlinchey thereupon stated would not be affected by the waiver provision. PHELPS DODGE COPPER PRODUCTS CORPORATION 379 claims that It did bargain in good faith on these matters and that the waiver clause conclusively demonstrates, in effect, that the Respondent's rejection of these matters, particularly the insurance item, was part of the "contemporaneous bargain" made by the parties in negotiating their agreement. Answering this last proposition, the General Counsel and the Union claim that the waiver was "Involuntarily assumed" and therefore Inoperative, and in this connection they refer to the alleged circumstances (1) that the Union expressly reserved all right In the premises during the October 19 meeting when representatives of the Union and the Respondent reached agreement on the terms of the final contract; (2) that the present charges respecting these matters were on file with the Board when the contract was executed, as the Respondent knew, but that the waiver clause does not mention these then pending charges ; and (3 ) that at the October 19 meeting the Respondent had the benefit of a lawyer, McGlinchey, knowledge- able in the law of waiver, while the Union had no lawyer present even though such skilled union negotiators as President Carey of the IUE-CIO were in at- tendance for the Union at the time. A finding that the Respondent refused to bargain concerning pensions and Insurance In the negotiations preceding execution of the contract may only be made upon a consideration of the entire course of bargaining, viewing such nego- tiations as a give-and-take process with each party in turn modifying his position and even completely abandoning some demands in order to obtain a contract best suited to his needs. Once an employer and a union have reached agreement on the broad outlines and even many of the details of a labor agreement, as the parties did in the present case, it is frequently most difficult to determine whether either of them has approached resolution of remaining differences in a manner which may be called bad faith bargaining. The ascertainment of bad faith bar- gaining is even more difficult when the area of disagreement has been narrowed down to financial issues, as also happened in the present case. It is to be re- membered, in this connection, that the Board may not make contracts for the parties and that the obligation of good faith bargaining "does not compel either party to agree to a proposal or require the making of a concession" ( Section 8 (d) of the Act). The Respondent concedes that pensions and insurance are bargainable issues.` But it stresses the fact that these items are but two of the facets of a labor relations financial situation and that the determination of a statutory refusal to bargain respecting these particular items must take into consideraion the entire financial picture. While I accept these observations, this does not mean that an employer may refuse to bargain concerning any proper subject and thereby insist on limiting the scope of negotiations to other monetary items. It does mean that in the process of reaching agreement the parties may properly trade off one financial item for another, even a nonfinancial, item. Taking up the pension matter, I cannot accept the Respondent's claim that the Union did not again raise this particular item as a bargaining issue after the May 25 meeting. The circumstances surrounding the memorandum of the August 24 meeting and the Respondent's reply or absence of a reply to the memo- randum in this regard militates too strongly against such contention. On the other hand, the critical testimony of the General Counsel's witnesses concerning the June 27 and 29 discussions of pensions vis a iris the package proposal is inconsistent in material respects and is insufficient, when considered together with McGlinchey's testimony, to justify an adverse finding. Under all the cir- 8 See Inland Steel Co. v. N. L. R. B., 170 F. 2d 247, 250-255 (C. A. 7), certiorari denied, 336 U. S. 960 ; W. W. Cross & Co. v. N. L. R. B., 174 F. 2d 875, 877-878 (C. A. 1) ; and N. L. R. B Y. General Motors Corp., 179 F. 2d 221 (C. A. 2). 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cumstances, I am unable to find by a preponderance of credible testimony that the Respondent refused or failed to negotiate in good faith concerning pensions. I shall therefore recommend dismissal of this allegation. The insurance matter is presented in a quite different posture. The Union made this item part of its package proposal on June 27 and argued the proposi- tion at some length on that day and on June 29. That the Union continued to press the matter after June 29 is evident from the Respondent's repeated refusal on August 24 to supply the insurance information requested by the Union. The language of the waiver clause certainly is broad enough to cover the insurance matter,' and I also have no doubt that the Respondent so intended it and that the Union so understood it. The question, therefore, does not con- cern the existence of a waiver but what effect the waiver in question should be given. And in answering this question it may be appropriate to consider whether the Union abandoned or traded its insurance demands for concessions made by the Respondent, including that of an additional 10 cents hourly in- crease, or whether the Union finally executed the contract with the waiver be- cause it felt that further efforts in the insurance direction were futile in view of the Respondent's unbending refusal to discuss the subject. The Respondent was not required to accept any changes in the existing in- surance plan as a condition of good faith bargaining. Thus, under statutory bargaining precepts, the Respondent was privileged to announce at the outset of negotiations that it was opposed to insurance changes ; and, after exploring the subject with the Union, the Respondent still would have been privileged to state that its position against changes was the same. But the Respondent was required to grant the Union's request to explore the subject with the Respondent and to give the Union an opportunity to persuade the Respondent, for example, that other insurance programs might be more desirable and that a change to such more desirable program might be accomplished without additional cost to the Respondent. The Respondent could properly induce the Union to drop this demand in favor of other benefits. However, such inducement, to be proper, may not take a form of an outright refusal to negotiate on the subject, which the Respondent's own minutes of the June 27 and 29 meetings demonstrate its atti- tude to have been. Moreover, the Respondent's refusal to furnish the requested information together with its statements at the negotiations, that the insurance program was merely something it had made available to the employees and that the program was not a "partnership proposition" between the Respondent and the Union, go far in showing that the Respondent regarded the insurance matter as a subject for managerial prerogative alone rather than as a required subject of collective bargaining which the Respondent at the hearing concedes it is. The Respondent contends that the insurance information requested by the Union was irrelevant to the negotiations because the Respondent did not predi- cate its refusal to grant the insurance changes on an inability to sustain the financial burden of converting the plan to one solely maintained by the Re- spondent. According to the Respondent, the basic dispute was a monetary one and it preferred to grant monetary benefits in the form of across-the-board increases . There is no question, however, that the insurance program was a bargainable issue ; that the Union endeavored to bargain and sought information for the purpose of bargaining on the subject; and that the Respondent had the information but refused to make it available. The information in question was hardly irrelevant under these circumstances, the Respondent may have con- sidered it so in my opinion only because it was refusing to bargain on the sub- 9 Cf. Phelps Dodge Copper Products Corporation, 96 NLRB 982. PHELPS DODGE COPPER PRODUCTS CORPORATION 381 ject matter. The Respondent was therefore obliged to supply the data to enable the Union to bargain intelligently on the subject" As the record does not show that the Respondent ever receded from its in- transigent position concerning the insurance matter, the question boils down to whether the express waiver clause constitutes an impediment to a finding and order based on the Respondent's refusal to bargain on the matter. Turning to refusal-to-bargain cases arising during a contract term, it ap- pears that the Board has had occasion to deal with claims that the unions in question had waived their rights in certain matters for the life of the agreement. Thus, where parties have explored an issue during negotiations preceding the contract, that issue is usually considered to be waived as a bargaining matter during the contract term, whether or not the matter was covered by the contract" Issues which contracts expressly waive are also generally barred for negotia- tion during the contract term, even though the parties may not have raised the issue during the negotiations preceding the contract" However, where an employer refuses to bargain on a bargainable issue, a subsequent contract does not preclude a complaint based on such refusal even though the contract may cover the matter in question. For example, in the Southern Saddlery case (90 NLRB 1205), the principal issue under negotiation was a wage increase which the employer stated he was unable to grant but as to which he also refused to furnish substantiating data. The parties finally executed an agreement and the employer thereupon requested the Board to dismiss the 8 (a) (5) proceeding which involved the employer's conduct during the negotiations. The Board held that the existence of the contract did not affect the issue, no matter what provisions the agreement contained. In this posture, therefore, it must be as- sumed that the contract covered the wage matter. The Board stated : "It is well established that the issues raised by filing charges alleging a refusal to bar- gain do not become moot by reason of the subsequent execution of a collective bargaining agreement" (90 NLRB at 1208) .'2 And in the Bemis Bro. Bag case (96 NLRB 728) the Board also held that a subsequent contract did not bar a refusal-to-bargain finding and order based on conduct during negotiations, even though the matter in issue-which was not covered by the contract-was raised during negotiations. In so concluding, the Board found that the parties had not explored the matter, but it also noted that the contract did not contain an "express waiver" of the matter for the dura- tion of the contract term u The Respondent contends that the Board's reference to the absence of an "express waiver" provision in the Bemis Bro. Bag case indicates that a different 11 Westinghouse Electric Supply Company, 96 NLRB 407 ; I. B. S. Manufacturing Com- pany, 96 NLRB 1263; Leland Gifford Company, 95 NLRB 1306; General Controls Co., 88 NLRB 1341, 1343-1344; and N. L. R. B. v. Yawman & Erbe Manufacturing Co., 187 F. 2d 947 (C. A. 2). " Jacobs Manufacturing Company, 94 NLRB 1214; cf. Bemis Bro. Bag Co., 96 NLRB 728. 19 Phelps Dodge Cooper Products Corporation, 96 NLRB 982. Cf. Brunswig Drug Company et at., 96 NLRB 451. 18 The Board reaffirmed the principle of this case in Jacobs Manufacturing company, 94 NLRB 1214. See, also, E. W. Scripps Company, 94 NLRB 227; Yawman & Erbe Manu- facturing Co., 89 NLRB 881, 882-883, enforced 187 F. 2d 947 (C. A. 2) ; Inland Steel Company, 77 NLRB 1, 14-15, enforced 170 F. 2d 247 (C. A. 7), certiorari denied 336 IT. S. 960. 1' The Union cites Bethlehem Steel Company, 89 NLRB 341, where the Board found an 8 (a) (5) violation despite a subsequent contract containing an express waiver . In that case, however, the matter in issue involved a statutory right affecting the union 's status as bargaining agent, as distinguished from a term or condition of employment ( 89 NLRB at 845-346). 882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD result would have been reached had such waiver clause been included in the con- tract involved there. Clearly, the reference was unnecessary to the decision of that case ; for, under established doctrine, the employer's refusal to negotiate on the issue in question would have been sufficient basis for the result. Whether, therefore, the reference was as meaningful as the Respondent suggests-with the result that an expressed waiver is always tantamount to complete explora- tion of a subject and, therefore, that expressed waiver cases are to be treated differently from the Southern Saddlery type situation where the contract covers an item but nevertheless does not bar a refusal-to-bargain finding and order- or whether it was a gratuitous remark not intended to promulgate new princi- ple, I cannot say with certainty. If the former were the case, however, it would seem that the Board would have discussed the principle and the affected decided cases at greater length than appears in the decision. It is true that the Union received substantial financial advantages in the October 1950 contract and that the 15 cents wage increase equalled the cost to the Respondent of the Union's package proposal as computed on an hourly employee basis. I have no way of knowing, however, whether the parties would have reached an identical contract had the Respondent disclosed the insurance information to the Union and explored the subject with the latter. It may be, and this again is in the speculative realm, that the Union might have preferred a lower wage increase and some changes in the insurance program ; and it also is possible that the Respondent might even have agreed to some insurance changes after discussing the subject with the Union on the basis of the requested infor- mation. On the other hand, had the Respondent negotiated on insurance, the Union might have preferred a contract in its present form or the Respondent might have been steadfast in opposing changes in insurance. Despite the impossibility of determining what the ultimate agreement of the parties would have been had the Respondent not refused to bargain on insurance, I am not prepared to find-merely because I cannot ascertain such result-that express waivers are ineffective whenever an employer had refused to negotiate on a given subject. A union may bargain away its contract interest in a sub- stantive term or condition of employment, whether or not the particular subject is even raised during negotiations, and I perceive no reason of policy why a union may not also be permitted to forego a contract interest in a subject which it raised but concerning which the employer had refused to bargain. To overturn the effectiveness of the waiver clause under discussion I would therefore require the same quality of proof as is necessary in overturning any other expressed contractual undertaking. Such proof, however, is not present here." This does not mean that the waiver clause under discussion is tantamount to exploration by the Respondent of the insurance matter, or that the clause is to be taken as waiving the Respondent's unlawful refusal to bargain and whatever statutory remedies may be appropriately applied. The effect of the waiver clause is only to relieve the Respondent of the obligation to bargain concerning insurance, inter alia, for the life of the agreement ; it does not remove, and there is no showing that it was intended to remove," the Respondent's unlawful re- as The Union's argument that it had no lawyer present at the October meeting is devoid of any merit in my opinion ; nor do I attach any significance to the Union's passing comment on October 19, which I find to have been made, regarding the insurance clause contained in the other company's contract. I also find that the only reservation expressed at the October 19 meeting involved grievance matters unrelated to the insurance issue. le There is a substantial question, moreover, as to whether the parties themselves could effectively waive the refusal to bargain. See Mackay Radio and Telegraph Company, 96 NLRB 740. Cf. the Southern Saddlery case, supra, and the cases cited in footnote 13, supra. PHELPS DODGE COPPER PRODUCTS CORPORATION 383 fusal to bargain from present administrative action, even though the impact of such action Is, because of the waiver , not fully realized until the contract expires. Nothing short of actual negotiations on Insurance will satisfy the statutory bar- gaining requirement and, on the basis of the Respondent's conduct during the 1950 negotiations , nothing short of an effective bargaining order will attain that objective. Accordingly, I find that the Respondent violated Section 8 ( a) (5) and (1) of the Act by refusing to bargain concerning changes in the insurance program, 1n-J eluding-as an independent basis-its refusal to furnish the relevant insurance, information requested by the Union. I also find that the appropriate order, which I shall recommend, is that the Respondent bargain on the subject, but not concerning changes in insurance to take effect before the 1950 contract expires, and that the Respondent shall immediately 14 furnish the Union with all relevant Insurance information including the afore-mentioned information already re- quested by the Union. B. Refusal to bargain during a slowdown On June 12, 1950, the Union voted to implement its bargaining position in the negotiations by withholding incentive production and overtime work, and the following day the employees put this curtailment into effect . The Respondent immediately broke off negotiations and thereafter refused to resume contract discussions "until the Union and the employees have shown that the production of the plant is back to normal." So far as the record shows, at no time during the slowdown did the Respondent request the employees to leave the plant should the slowdown persist. On June 14, 1950, the Union filed charges in Case No. 2-CA-1448 predicated on the Respondent's refusal to meet and negotiate with the Union during the slowdown. This charge was withdrawn "without preju- dice" on June 19 as part of an understanding between the Respondent and the Union which also provided for the cessation of the slowdown and the resumption of negotiations, and on June 21 the parties did resume negotiations. The Union filed similar charges in the present case. The General Counsel contends, and the Respondent denies, that Section 8 (a) (5) of the Act required the Respondent to bargain during the slowdown. No question is raised concerning the purpose of the slowdown, the conduct was clearly lawful in that respect, but the Respondent asserts that the slowdown was Itself improper and that the Respondent was excused from its ordinary bargain- ing obligation as long as such allegedly improper condition existed. Apart from Hirsch Merchantile Company, 45 NLRB 377, none of the parties has cited a decision under either the original Act or its 1947 amendments, and I have been unable to find any, in which the Board has resolved the precise issue presented by the Respondent's refusal to bargain during a slowdown. The Union and the Respondent both assert the Hirsch case as supporting their respective divergent positions ; however, the Board did not determine the issue in that case and did not, in any event, expound a rationale for its disposition. Thus is presented an issue of first impression in the administration of the Act. It is a general principle of long standing with the Board and in the courts that the existence of a strike authorized by a majority representative does not suspend an employer's statutory obligation to bargain with such representative.' 14 See General Controls Co , 88 NLRB 1341, 1343. 1e U. S. Cold Storage Corporation, 96 NLRB 1108; Old Town Shoe Company, 91 NLRB 240, 243; N. L. R. B. V. Reed .t Prince Mfg. Co., 118 F. 2d 874, 885 (C. A. 1), certiorari denied 313 U. S. 595; Black Diamond S . S. Corp. v. N. L. R. B., 94 F. 26 875, 878, 879, (C. A. 2), certiorari denied 304 U. S. 579; Jeffery-DeWitt Insulator Co. v. N. L. R. B., 91 F. 26 134, 140 (C. A. 4), certiorari denied 302 U. S. 731. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The only established qualification of this principle arises where a strike contra- venes an operative collective bargaining agreement." The Respondent would extend this exception to a slowdown situation even where no contract is involved, and in this connection it cites cases holding that concerted slowdowns are "indefensible" and not protected concerted activity within the meaning of the Act and that an employer may lawfully discharge employees for engaging in such conduct. These and other authorities RO leave no doubt, despite the statu- tory provisions defining a "slowdown" as a "strike" within the meaning of the Act 21 and describing "the right to strike," z2 that the employees here in question were engaging in unprotected slowdown activity and subject to lawful discharge by the Respondent. Upon asserting that a slowdown, because it is unprotected concerted activity, is a form of pressure the Union has no right to use and that it is to be likened to a strike in violation of a no-strike agreement as far as it affects an employer's obligation to bargain, the Respondent's argument further states that "If an employer must bargain during a slowdown, for practical purposes, it would become a protected activity. Should the Board issue an order requiring Re- spondent to bargain during any future slowdowns that order would be an open invitation to the Union to engage in activity the Board has called `indefensible.' " The term "unprotected concerted activity" is recognized in this field as apply- ing to conduct whose infringement the Act does not protect and concerted activity so denominated may arise in a variety of situations. For example, concerted activity has been considered unprotected when it violates the specific provisions of this Act (for example, strikes in violation of Section 8 (b) (4) of the Act) or other Federal Acts (mutiny, Southern Steamship Company v. N. L. R. B., 316 U. S. 31) or because it seeks to compel an employer to violate this Act (Thomp- son Products, Inc., 72 NLRB 886) or other Federal Acts (American News Com- pany, 55 NLRB 1302) or because the conduct is tortious as violating personal or property rights (sitdown, a N. L. R. B. v. Fansteel Met. Corp., 306 U. S. 240) or because it violates contract rights (N. L. R. B. v. Sands Mfg. Co., 306 U. S. 332) or because, as in the present case, it involves so-called "indefensible conduct" as that test was enunciated in the Harnischfeger and Elk Lumber cases and ap- provingly cited by the Supreme Court in the U. A. W. case (336 U. S. at 256). Of the diverse situations occasioning application of the concept "unprotected concerted activity," some are lawful while others are unlawful, and this differ- ence is of material significance in the administration of the Act, as the Board recently observed in Mackay Radio and Telegraph Company, Inc., 96 NLRB 740. That case involved a question respecting the condonation of unprotected 19 Charles E. Reed & Co., 76 NLRB 548; United Elastic Corporation, 84 NLRB 768, 773; Higgins, Inc., 90 NLRB 184, 185; N. L. R. B. v. Dorsey Trailer, Inc., 179 F. 2d 589, 592 (C. A. 5) ; Timken Roller Bearing Co. v. N. L. R. B., 161 F. 2d 949, 955-956 (C. A. 6) ; Boeing Airplane Company, et at. v. N. L. R B., 174 F. 2d 988, 991 (C. A D. C.). 20 Harnisch feger Corporation, 9 NLRB 676, 686; Elk Lumber Company, 91 NLRB 333, 336-339; N. L. R. B. v. Mt. Clemens Pottery Co., 147 F. 2d 262 (C. A. 6) (refusal to work overtime) ; C. G Conn, Ltd., v. N. L. R. B., 108 F. 2d 390 (C. A 7) (refusal to work overtime) ; N. L. R. B. v. Montgomery Ward & Co., 157 F. 2d 486 (C. A. 8),; International Union, U. A. W. A., A. F. of L., Local 232, at al. v. Wisconsin Employment Relations Board et al., 336 U. S. 245. 21 Section 501 (2)1: "The term `strike' includes . . . any concerted slowdown or other concerted interruption of operations by employees." 21 Section 13 : "Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right." 23 In the sitdown situation employees are trespassers as holding plant property in defiance of the employer's demand that they leave. The Respondent in the present case did not request the employees to leave the premises. PHELPS DODGE COPPER PRODUCTS CORPORATION 385 conduct which also violated a specific provision of the Act. In denying the sub- stantial benefits of condonation to the employees in question, the Board made its decision turn on the distinction between conduct which is merely unprotected and unprotected conduct which also violates declared public policy. The Board has never declared that a slowdown itself is violative of the Act; however, the Supreme Court held in the U. A. W. case that a "recurrent or intermittent unannounced stoppage of work to win unstated ends," to which the slowdown may be analogized-both being "unconventional" techniques of pressuring an employer, "was neither forbidden by Federal Statute nor was it legalized and approved thereby" (336 U. S. at 264-265). And the Respondent refers to no other applicable law, Federal or State,u which the slowdown in question violated. There being nothing in the language of the Act permitting an employer to abate negotiations during a slowdown, and because the Respondent would have such exception administratively engrafted on the "absolute" duty to bargain '21 it may be helpful in analyzing the issue to consider the statutory policy which requires bargaining during a total strike but which suspends the bargaining mandate during strikes violating no-strike agreements. Upholding the obligation to bargain during a strike in Jeffery-DeWitt Insula- tor Company v. N. L. R. B., 91 F. 2d 134, 140 (C. A. 4), certiorari denied, 302 U. S. 731, the Court stated : If an employer in the presence of a strike could rid himself of the obligation to negotiate by declaring strike negotiations to be useless and refusing to recognize as employees those failing to return to work on his terms, the statute enjoining collective bargaining would largely fail of it purpose. And in explicating its rationale for excepting the obligation to bargain during a strike which violated a contract, the Board stated in the United Elastic case, 84 NLRB 768, 773: In our opinion, the stability of labor relations that the statute seeks to accomplish by the encouragement of the collective bargaining process ultimately depends upon the channelization of the collective bargaining relationship within the framework of a collective bargaining agreement, and the adherence thereto by the contracting parties. We feel, therefore, that the broad purpose of the statute and the interest of the parties will best be served by requiring such adherence. A different conclusion would not only militate against the statutory aim but also ignore the traditional sanctity attached to contracts by our system of jurisprudence. And even where an employer discharged employees who violated a no-strike agreement by a strike to protest the discriminatory discharge of a fellow employee, the Board upheld the strikers' discharge in National Electric Products Corporation, 80 NLRB 995, 1000, stating that: No convincing argument has been made as to how it would effectuate the expressed purpose of the Act to regard this employer's unfair labor practices as sufficient justification for overriding the statutory objective of a "no-strike" clause. u This does not mean , and I do not have to decide, that the existence of a State law respecting the slowdown would affect the result reached here. However, see the Fourth Circuit's opinion in the Reed d Prince case (118 F. 2d at 885-886). Rb Timken Roller Bearing Co. v. N. L. R B., 161 F. 2d 949, 955 (C. A. 6). 10 To a similar effect, see the other cases cited in footnote 18, above. 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Considering these and the other afore-cited cases in the context of the Act's own stated "Findings and Policies" in title I, section 1, it appears that the paramount public interest in stabilizing labor relations is served, in the first instance, by bringing the employer and the statutory representative to the bargaining table to attempt a resolution of their difficulties, negotiation being "the most effective method yet devised of settling differences between employer and employee and avoiding industrial conflict" (Jeffery-DeWitt Insulator case, supra, 91 F. 2d at 139), and then by requiring them in the next phase, once the terms of an agreement are reached and memorialized by them, to pursue their contract and other administrative remedies without recourse to self-help economic action prohibited by the contract. "The legislative history of the Act goes far to indicate that the purpose of the statute was to compel employers to bargain collectively with their employees to the end that employment con- tracts binding on both parties should be made" (N. L. R. B. v. Hands Mfg. Co., 306 U. S. 332, 342). The present situation, therefore, represents the first phase of the process, when, as in the case of a total strike during negotiations, "the ful- fillment of the obligation to bargain becomes doubly important" (Old Town Shoe Company, 8upra),2 the only difference being that one situation involves a protected activity and the other an unprotected, albeit not unlawful, activity. Recapitulation and Conclusions I cannot accept the Respondent's contention that a slowdown, absent a contract, is to be assimilated to a strike in breach of contract. That both the slowdown and such strike are in the eyes of law unprotected, it is true. But there the similarity ends insofar as the reason for suspending the bargain- ing obligation is concerned. The contract violation suspends operation of Section 8 (a) (5) because the strikers have ignored their own agreement chan- neling the course of collective bargaining and have thereby directly frustrated the statutory policy of encouraging the execution and performance of col- lective agreements. It would be self-defeating for the Government to lend its processes and thus to support a breach of contract which is repugnant to the very provision, Section 8 (a) (5), which the strikers seek to invoke. However, the employees in a slowdown situation of the sort under consideration are seeking to achieve that legislative desideratum, a collective bargaining agree- ment, which by its execution will ordinarily end the labor dispute out of which the slowdown arose. The cases involving strikes in breach of contract are therefore inapposite. It is undoubtedly true, as the Respondent asserts, that "an employer who negotiates while a slowdown is in progress is in far worse position than an employer who negotiates during full production." Wholly apart from the relevancy of this consideration, I do not know that such employer is worse off-he may be better off-than an employer with a total strike, a protected activity, on his hands. For an employer may prefer to continue operations on a reduced slowdown basis with his regular employee complement than either not at all or with new inexperienced personnel; but should he prefer, the employer also has it within his lawful discretion to discharge all or some of the employees participating in the slowdown and to close down operations, wholly or in part ; or he may, if he desires, hire immediate displacements or replacements for the unprotected employees or even eventually rehire the latter but as new employees. Thus there are more economic risks assumed 21 The Board vacated its Decision and Order in this cited case on September 15, 1950, for reasons unrelated to the subject under discussion. PHELPS DODGE COPPER PRODUCTS CORPORATION 387 by employees engaging in a shutdown than by their total strike counterparts,' and the slowed-down employer accordingly has more strings to his economic bow than his counterpart of the totally struck plant. Although employees slowing down do enjoy at least some of the immediate financial advantages of employment which are denied employees on total strike, they do so only at the election of their employer who also enjoys, as long as he desires, at least some of the benefits of a going operation which may be denied the employer of the completely struck plant. I also cannot accept the underlying premise for the Respondent's argument that the 'bargaining mandate be suspended during a slowdown so as not to encourage that practice and that the slowdown would be elevated, from the status of unprotected activity to the category of protected conduct should the suspension not be permitted. The critical issue in this case is not whether the suspension of bargaining during a slowdown will discourage or encourage slow- down, or whether the denial of suspension will raise the slowdowns to pro- tected status, and in this latter connection I do not understand how the fact of nonsuspension affects the matter of status, for suspension or not, an employer may discharge employees who participate and because they participate in such conduct and this right of discharge in the employer earmarks the activity as other than protected. The encouragement of slowdowns certainly is not an affirmative objective of the Act, but neither is it a statutory objective to dis- courage such unprotected practice which is not also unlawful. Cf. International Union U. A. W., A. F. of L., Local 232, et al. v. Wisconsin Employment Relations Board, et al., supra. On the other hand it is congressional policy to mitigate and eliminate obstructions to commerce "by encouraging the practice and pro- cedure of collective bargaining ;" a and where a slowdown is in effect and the employer does not discharge the participants, as he is privileged to do, but instead continues to treat them as his employees,80 this statutory policy requires,, no less than in the case of a total strike under similar circumstances, that the parties meet and discuss their differences and thus hasten the end of the labor dispute which occasioned the slowdown. In the collision between the Respondent's suggested policy of discouraging employees from engaging in unprotected slowdown conduct, unprotected in this- instance meaning only that an employer is privileged to discharge employees for engaging in such activity, and the established congressional policy of en- couraging the procedures of collective bargaining-the latter must prevail. I conclude, therefore, that it would not effectuate the policies of the Act, it would hinder them, to suspend the statutory obligation to bargain during a slowdown. Accordingly, I am impelled to find that the Respondent violated Section 8 (a) (5) and (1) of the Act by refusing to negotiate with the Union in June 1950 because the employees were engaging in a slowdown." C. Unilateral change in vacation pay On or about June 29, 1950, during the period of negotiations and there being no operative contract at the time, the Respondent changed the established 28 Buzza-Cardozo, 97 NLRB 1342, and cases cited therein. 19 See Inland Steel Co. v. N. L. R. B., 170 F. 2d 247, 266, certiorari denied, 336 U. S.. 760. '10 Compare N. L. R. B. v. Fansteel Met. Corp ., 306 U. S. 240, 262; and N. L. R. B. v. Sands Manufacturing Co., 306 U. S. 332, 344. 81 Accordingly , the Respondent was also not entitled to insist on a withdrawal of the 8 (a) (5) charges pending at the time as a condition of continued bargaining. Cf. Mon- Santo Chemical Company, 97 NLRB 517; Dealers Engine Rebuilders, Inc., 95 NLRB 1009. 242305-53--26 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD method of computing vacation pay for employees having more than 5 years seniority. The change was made immediately effective for the vacation period beginning July 3, 1950,' and was instituted without consulting or even notifying the Union which immediately protested the matter to the Respondent upon being advised by its membership of the revised method of payment. The sub- ject of vacation pay was among the Union's proposals of May 25, 1950; it was still pending under negotiation on June 29 and was finally covered by the agreement of October 1950. The earlier contract which expired May 1, 1950, provided that employees hav- ing less than 5 years seniority "will be paid their average hourly rate . . . in effect during tae month of May [vacations began about July 1] for the average actual hours worked during the ten pay periods preceding June 1 . . . with a minimum of forty (40) and a maximum of forty-eight (48) hours." As to employees with 5 years longevity the contract had an identical clause except to provide "a minimum of eighty (80) and a maximum of ninety-six (96) hours." Despite these contract provisions, the Respondent contends that its practice during the contract term, particularly in 1948 and 1949, was to grant vacation pay only to those 5-year employees who had worked 30 or more weeks during the year, and it offered evidence to the effect that 5-year employees having fewer than 30 workweeks during those years did not receive vacation pay. It appears in each instance, however, that the employee involved had not worked during the 20 weeks (or 10 pay periods) immediately before the vacation period. On the other hand, the General Counsel adduced testimony to the effect that the practice under the contract comported with the terms of the agreement, namely, that all 5-year men received no less than 80 hours paid vacation regardless of the number of weeks worked, at least where 5-year men were also employed during the 20-week period immediately preceding the vacation period. In any event, the change in June 1950 resulted in 5-year employees with 40 or more workweeks being paid, in effect, in accordance with the terms of the old contract, while 5-year employees who had worked fewer than 40 weeks received that proportion of full vacation pay which the number of weeks the employees had worked bore to the number 50. This change affected some 60 employees, in some instances to their advantage, of the approximately 1,200 employees in the bargaining unit, and McGlinchey testified that 1950 was the first year in which the Respondent had relatively many 5-year employees with fewer than 40 work- ing weeks and that the Respondent instituted the change because it believed the revised basis to be a more equitable standard for computing vacation pay. Whatever the past practice, however, and I accept the General Counsel's version, the Respondent does not dispute that it unilaterally devised and effectuated a change without consultation with, or even notice to, the Union, the only differ- ence between the parties as to the past practice being one as to extent, rather than the fact, of such revision. The subject of vacation pay is a bargainable issue,' as the Respondent does not deny, and the Respondent has failed to advance any lawful exculpating reason for unilaterally removing that issue from the bargaining table even though it did so for only the 1950 vacations and even though the unilateral 21 The record does not show that the revised formula was intended to apply beyond the 1950 vacations. as Whztinsvslle Spinning Ring Company, 97 NLRB 801; Harry Epstein et at. d/b/a Top Mode Manufacturing Co., 97 NLRB 1273; May Department Stores Co. v. N. L. R. B., 326 U. S. 376, 383-385; Great Southern Trucking Co. v. N. L. R. B , 127 F. 2d 180, 186 (C. A. 4), certiorari denied 317 U. S. 652. PHELPS DODGE COPPER PRODUCTS CORPORATION 389 change may have inured to the benefit of some of the affected employees." This unlawful derogation of the bargaining status of a statutory representative, taken without even notice to the Union," becomes still more aggravated upon consideration that it occurred during negotiations embracing this very matter se The Respondent urges that this allegation should nevertheless be dismissed because the parties included the clause set forth below " in the October 1950 agreement, which clause settles "any and all grievances" arising out of the unilateral change in 1950 vacation payments, and because the parties otherwise satisfactorily reached an agreement for future vacation payments in the same contract. The Respondent also relies on the general waiver clause set forth in the slowdown discussion for further support in this connection. Clearly, any subsequent agreements between the Respondent and the Union to resolve the dispute in question do not render the unfair labor practice issues mootH° and do not otherwise deprive the Board of its exclusive statutory obli- gation to administer the Act in the public interest. (Section 10 (a) of the Act.) 3' However, as a principal objective of the Act is to encourage "the practice and procedure of collective bargaining" (Section 1 of the Act), one should consider the impact of any such bargaining between the parties in determining the appropriate remedy in a given situation. Mindful of these various con- siderations, therefore, I conclude that the Respondent's unilateral action vio- lated Section 8 (a) (5) and (1) of the Act. However, as I believe that the remedial provisions of the agreements should be honored, particularly as the parties also have executed the October 1950 contract establishing the basis of future vacation payments, I shall recommend only a cease-and-desist order respecting this unlawful conduct, an order which I believe the public interest requires. D. Refusal to bargain during a limited work stoppage Vacations in 1950 began on July 3 and, as in former years, the Respondent shut down all operations during this vacation week. If the practice under the expired contract had prevailed, operations would have resumed on July 10 except that the 5-year men would have been entitled upon request therefor being granted-and it usually, if not always, was-to remain on paid vacation a second week. At a meeting held on June 30, the Union voted to remain out a second week because of the Respondent's unilateral deviation from established vacation practices, as discussed under the previous heading. Most of the em- ployees accordingly did not report for work until July 17, with consequent dis- S* Cf. Whitinsville Spinning Ring Company, supra; Harry Epstein at al. d/b/a Top Mode Manufacturing Co., supra. 85 Compare N. L. R B . v. Bradley Wash!ountain Co., 192 F. 2d 144 (C. A. 7). se Great Southern Trucking Co. v. N. L. R. B., supra ; Inland Lime and Stone Company v. N. L. R. B., 119 F. 2d 20, 22 (C. A. 7) ; American Insurance Co v. N. L. R. B., 189 F. 2d 307 (C. A. 5). 81 "It is hereby agreed that for those employees who had been in the employ of the company for five years or longer prior to June 30, 1950, and who had worked at least 30 weeks but not 40 or more weeks in the year ending on that date, the company will pay them the difference between what they received as vacation pay and the vacation allowance they would have received if they had worked at least 40 weeks in such year and this agree- ment shall settle any and all grievances that have or might have arisen over vacation pay for the year 1950." 38 Southern Saddlery Company, 90 NLRB 1205, 1208. 80 N L. R. B. v Newark Morning Ledger Co., 120 F. 2d 262 , 268 (C. A. 3), certiorari denied 314 U. S. 693; N. L. It. B. v. Walt Disney Productions, 146 F 2d 44, 48 (C. A. 9), certiorari denied 324 U. S. 877. See N. L. R. B. v. Mexia Textile Mills, 339 U. S. 563, 567; N. L. R. B. V. Pool Manufacturing Company, 339 U. S. 577, 581-582. 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ruption In plant operations. No contract was in effect at the time and employees were not paid for their second "vacation" week. The Respondent thereupon cancelled a bargaining meeting scheduled for July 12, stating that it "will not negotiate until the Union and employees have demonstrated for three days that the production of the plant is back to normal." The Respondent continued to refuse to meet with the Union during the week of July 10-17. The Respondent asserts that the Union's action in taking an extra week's vacation, albeit an unpaid one, was a unilateral attempt to determine working conditions and the equivalent of a slowdown in legal effect. The Respondent accordingly argues that the stoppage was unprotected concerted activity and that because the Respondent was therefore privileged to discharge the par- ticipating employees, it was "justified in taking the less drastic step of refusing to bargain until they stopped exerting this improper kind of pressure and re- turned the plant to normal production." The Respondent also contends that if it "erred" in refusing to bargain during the period in question, this refusal was nevertheless merely an incident of isolated insignificance in a course of bargain- ing which did result in an agreement. This 1-week work stoppage was a "concerted interruption of operations by employees" and therefore a "strike" within Section 501 (2) of the Act. How- ever, the Supreme Court's opinion in the afore-mentioned U. A. W. case (336 U. S. 245) makes evident that the term "strike" in its full statutory meaning is not necessarily the touchstone upon which all Issues in this field are decided. The stoppage was immediately provoked by the Respondent's unlawful change of vacation benefits and, viewed in its factual context, was undoubtedly also intended to affect the course of negotiations then pending. Considering only the vacation motivation, however, employees traditionally have used the total strike to protest what they consider untoward action of their employer in regard to matters affecting their "mutual aid or protection," and I am un- aware of any minimal time limitation, to which the Respondent refers, on the protection accorded a total strike under such circumstances. Viewing the stop- page as an attempt to affect the negotiations, I also cannot accept the Respond- ent's suggestion that a necessary condition of an employer's obligation to bargain a work stoppage is an extension of the stoppage until an agreement Is reached. If such requirement were made, and under present law I know of no such quali- fication, the parties might never get together during a total striked for, until either the strikers capitulate or the employer does, the employer never could be certain that the employees would not terminate the strike before a contract is obtained. I conclude, therefore, that the employees were engaging in a traditional strike, both as to purpose and means, and that the strike was a protected con- certed activity within the meaning of the Act. The strike, therefore, did not suspend the Respondent's obligation to bargain." However, even though the 1-week total strike be deemed unprotected, the Respondent was nevertheless obliged to bargain with the Union during its operation for the same reasons of policy outlined in the slowdown situation already discussed, provided, of course, that the Respondent did not discharge employees in sufficient numbers to affect the Union's majority status" Thus, the contention that a refusal to bargain is a lesser penalty than a discharge for unprotected but not unlawful activity mistakenly equates an employer's right to economic action with the paramount 40 Compare N. L. R. B . v. Jamestown Veneer and Plywood Corp , 194 F. 2d 192 (C. A. 2). 41 See cases cited in footnote 18, above. 42 See cases cited in footnote 30, above. PHELPS DODGE COPPER PRODUCTS CORPORATION 391 -statutory policy requiring collective bargaining in order to effectuate the pur- poses of the Act .'o As the strike in question was caused by the Respondent's unilateral change .of vacation pay and therefore was an unfair labor practice strike , the refusal to bargain during its pendency was not mere isolated conduct" Nor does the later execution of a contract render the issues moot" I conclude, therefore, that the Respondent violated Section 8 (a) (5) and (1) of the Act by its refusal to bargain during the 1 -week strike in July 1950. E. Refusal to meet with designated representatives The gist of this allegation is that Wylie Brown, then the chairman of the Respondent's board of directors , refused to meet with certain union representa- tives on October 19, 1950. The Respondent's principal representative during the entire course of nego- tiations was D. F. McGlinchey. McGlinchey was the Respondent's director of in- •dustrial relations from 1948 until June 1950, and since then he has been a vice president in charge of labor, personnel, and legal problems. Representing the Union during the negotiations through the August 24 meeting were its Local officers and other committeemen, its attorney, and an international representa- tive, with Weihrauch (president of District No. 4) attending part of the July 20 session. Sometime before October 19, 1950, IUE President James Carey requested Brown to meet with a committee to resolve the contract negotiations, the Union having meanwhile continued the strike since July 24, 1950. Until that time Brown had not attended any of the afore-mentioned bargaining sessions. Brown .replied he would meet with Carey but with no other union representatives. Carey then notified Weihrauch and Joseph Iozzi, the latter the then chairman of the Union's negotiating committee, to meet him at the Respondent's offices on October 19, which they did. Proceeding to Brown's office, Carey, Iozzi, and Weihrauch were advised by Brown's secretary that Brown would see only Carey, whereupon Carey went into Brown's office alone and protested the exclusion of Iozzi and Weihrauch, but to no avail. Brown stated to Carey that he no longer engaged in contract negotiations, that he had McGlinchey for that purpose, McGlinchey also being present at the time, and during the discussion which followed Brown announced that the Respondent was prepared to make further wage concessions. Shortly afterward McGlinchey and Carey left Brown and re- sumed discussions with Iozzi and Weihrauch. Carey and Brown had known each other for several years as top officials -of their respective organizations. Brown had not conducted contract negotia- tions since 1945, although he has occasionally dealt with principal union execu- tives since that time, and the 1946 contract which expired in May 1950 provided that certain matters be referred for final determination by Brown and the UE's then director of organization failing an agreement between designated commit- tees of the UE and the Respondent. Carey testified that he received progress reports of the negotiations under discussion and it may also be presumed that Brown was kept similarly advised. 47 See the related discussion entitled "Refusal to bargain during a slowdown." " Compare Exposition Cotton Mills Company, 76 NLRB 1289 , 1294 , cited by the Respond- ent, where there was no other unfair labor practice and where there also was "doubt" as to whether the employer committed the conduct which was considered to have been dissi- pated ; and Wood Manufacturing Company, 95 NLRB 633, also cited by the Respondent, where the union involved was itself "not diligent" in attempting to reach an agreement. '" See cases cited in footnotes 13, 38, and 39 , above. 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The General Counsel does not contend thatMcGlinchey lacked adequate au- thority to negotiate in behalf of the Respondent, nor does he assert that the Re- spondent would have violated its obligation to bargain had Brown refused to meet with Carey and otherwise had completely refused to' participate in the ne- gotiations. In fact the General Counsel admits otherwise. But it is contended by the General Counsel that once Brown consented to enter negotiations to the limited extent of discussing some disputed matters with Carey, the Respondent thereby waived any privilege or right it may have had respecting Brown's further participation or nonparticipation and that Brown was thereafter obliged to meet and deal with any or all representatives designated by the Union. This is not a situation where an employer has refused to deal except with a limited class of representatives," for McGlinchey imposed no such restriction. Nor is this a case of an employer failing to designate a qualified representative 4' for McGlinchey, the General Counsel admits, met this test. In my opinion what the General Counsel's position ultimately amounts to under these circumstances is that a union may determine who an employer's representatives should be, which right, as a legal proposition, a union does not possess. Great Southern Trucking Company v. N. L. R. B., supra. There are, I believe, also policy reasons of sound industrial relations which militate against the General Counsel's proposition. Presumably, both Carey and Brown came upon the scene, at least in a negotiating or conferring capacity, only after the other representatives had failed to settle the controversy. To im- pose on either of these men or on other union and industrial officials similarly situated," a requirement of unlimited participation in negotiations under the circumstances stated, would tend to deny to the bargaining process whatever salutary results in settling labor disputes which flow from even the limited par- ticipation of such top level officials ; for, if the General Counsel's contention be sustained, such officials would ordinarily prefer to withhold all participation lest there be thrust upon them an unlimited bargaining role which they are un- willing, and otherwise not required, to assume. I conclude, therefore, that by Brown's refusal to meet with Iozzi and Wethrauch the Respondent did not refuse or fail to bargain within the meaning of Section 8 (a) (5) and (1) and I shall therefore recommend dismissal of this allegation. F. Postponing a wage increase because of strike action The contract of October 19, 1950 , provided that the employees be given an immediate hourly increase of 5 cents and that an additional increase of 10 cents "go into effect on December 1, 1950, provided there be in the interim no strikes, slowdowns, or other interruptions with production." The General Counsel con- tends that the Respondent withheld immediate payment of the 10 cents increase as a penalty for the Union's strike action. It is recalled that the Union conducted a 1-week strike from July 10 until July 17 in connection with the Respondent's vacation payment change and that, in implementation of its bargaining position, it maintained a slowdown from June 13 until June 19 and a total strike from July 24 until the October 19 agreement was reached. The Respondent denies 40 Cf. The Kentucky Utilities Company, 76 NLRB 845, 847 ; The American Laundry Machinery Company, 76 NLRB 981, 982-983, enforced, 174 F. 2d 124 (C. A. 6). 47 Cf. N. L. R. B. v. Poultrymen's Service Corp., 138 F. 2d 204 (C. A. 3), enforcing 41 NLRB 444; Great Southern Trucking Company v. N. L. R. B., 127 F. 2d 18Q, 185 (C. A. 4), certiorari denied 317 U. S. 652. 4s The respective responsibilities of Brown and Carey extended far beyond the labor rela- tions situation at the Bayway division. PHELPS DODGE COPPER PRODUCTS CORPORATION 393 that the additional increase was withheld as a penalty for past interruptions; it asserts, instead, that it held out the additional increase as an inducement to the employees to maintain uninterrupted production at least until December 1, 1951, and that it believed such monetary inducement necessary in view of the Union's past conduct. The 10 cents offer was first made by Brown to Carey at their October 19 meeting which McGlinchey also attended. According to Carey, Brown expressed his disapproval of the Union's local leadership, referring to them as "dead-end kids," and stated that the Bayway employees had engaged in a strike and did not deserve to be treated like the employees at the Respondent's other plants who received immediate 10-cent increases 49 and who, in view of the Bayway strike, had worked longer at a lesser wage rate than did the Bayway employees. Iozzi and Weihrauch testified that at their separate discussions of the delayed in- crease with McGlinchey on October 19, McGlinchey said that "it isn't fair to the rest of the plants who had worked for five cents" and that the Bayway people were "bad boys" and had to be taught a "lesson" and that the Respondent was postponing the increase as a "penalty" for their strike. Brown did not testify, but according to McGlinchey, Brown did not refer to the Union as "dead-end kids" or say or indicate that the withholding was for penalty reasons. McGlinchey testified that there was no discussion at all concerning the increases being post- poned and he further specifically denied that he had spoken in terms of a penalty or of the Bayway employees needing a "lesson." McGlinchey further testified that the Respondent's sole purpose in delaying the additional increase was to assure a return to normal production by inducing the employees to avoid a repetition of past strikes and slowdowns. The October 19 contract contains a no-strike provision and when this fact was mentioned at the hearing McGlinchey stated, in effect, that the Union and the employees needed an immediate financial inducement rather than a mere no-strike contract prohibition with a damage action for its violation to assure uninterrupted production in the plant. The various "strikes" involved in this case violated no contract or agreement or understanding, and no such contention is made. Nor did the Respondent offer any testimony or other evidence to show that this particular union had ever disregarded its contract obligations or other understandings with the Respondent or even that the employees of this plant had flouted such undertakings under the old contract or otherwise during the incumbency of their former bargaining representative. The Respondent does contend, however, that the absence of a penalty motive is borne out by the fact that the 1950 contract expressly provides that time lost by employees during the strike beginning July 24, shall be counted as days worked for the purpose of meeting the contract qualifications relating to vacations in 1951. While I am inclined to credit the Union's version of the conflict in testimony, I have sufficient doubt in the matter to preclude my finding a preponderance of credible testimony to support this allegation. Accordingly, I shall recommend dismissing this portion of the complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent described in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among 49 Five-cent increases went into effect at four other plants of the Respondent between April and June 1950, with additional 10-cent increases becoming effective at three of these plants in October 1950 and at the fourth plant in December 1950. 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the several States , and such of them as have been found to constitute unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action in order to effectuate the policies of the Act. The recommended order predicated on the Respondents' refusal to bargain, during a strike, as the term "strike" is defined in the Act, is, of course, not intended to require the Respondent to bargain during strikes in violation of contracts. The order as to insurance also is not intended to require the Respondent to bargain concerning insurance changes to take effect during the term of the 1950 contract, except that such limitation does not apply to the order requiring the Respondent to furnish information on the matter. CONCLUSIONS OF LAw 1. The Respondent has violated Section 8 ( a) (1) and ( 5) of the Act and has engaged in unfair labor practices within the meaning of Section 2 (6) and (7) of the Act by refusing to bargain with the Union while its employees were en- gaging In strikes ( slowdown and 1-week work stoppage ) involving no contract infringements, by refusing to bargain with the Union concerning changes in a group insurance program, by refusing the Union 's request for information rele- vant to negotiations concerning the group insurance program , and by instituting changes in vacation payments affecting employees in the appropriate unit rep- resented by the Union without first notifying and negotiating with the Union. 2. The Respondent has not refused to bargain with the Union concerning pensions or with certain designated union representatives , within the meaning of Section 8 (a) (1) and (5) of the Act. 3. The Respondent has not discriminatorily postponed a wage increase, within the meaning of Section 8 (a) (1) and (3) of the Act. [Recommendations omitted from publication in this volume.] STANISLAUS IMPLEMENT AND HARDWARE COMPANY, LTD. and INTER- NATIONAL ASSOCIATION OF MACHINISTS , DISTRICT LODGE No. 41. Case No. 20-CA-583. November 19, 1952 Decision and Order On February 7, 1952, Trial Examiner Herman Marx issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 101 NLRB No. 91.