Acme Brick Co.

ACME BRICK COMPANY 173 4. By causing Frank P. Slater, an individual doing business as Acme Equip- ment Company, to discriminate in regard to the tenure of employment of Everett Jordan, Chester Steward, Albert G. DoBruck, and Ralph R. Good, in violation of Section 8 (a) (3), International Association of Machinists, Local Lodge 68, has engaged in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 5. By restraining and coercing persons employed by Frank P . Slater, an individual doing business as Acme Equipment Company , in their exercise of rights guaranteed to them by Section 7 of the Act, International Association of Machinists , Local Lodge 68, has engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] ACME BRICK COMPANY and LOCAL 602, UNITED BRICK AND CLAY WORK- ERS OF AMERICA, AFL. Cases Nos. 32-CA-132 and 33-CA433. January 13,195$ Decision and Order On June 4,1952, Trial Examiner J. J. Fitzpatrick issued his Inter- mediate Report in the above-entitled proceeding, finding that Re- spondent 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 ex- ceptions to the Intermediate Report and a supporting brief. The Board 1 has reviewed the rulings made by the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Respondent's exceptions and brief, and the entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modifications.2 In agreement with the Trial Examiner, and for the reasons detailed in the Intermediate Report, we find that the Respondent refused to bargain with the Union, in violation of Section 8 (a) (5) of the Act. However, unlike the Trial Examiner, we do not find that the Respond- 1 Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three -member panel [Chairman Herzog and Members Styles and Peterson]. I We note and correct the following minor inaccuracy in the Intermediate Report, which does not affect the validity of the Trial Examiner's ultimate conclusions nor our con- currence therein : The Union asked the Respondent for bargaining meetings in July 1551, not in July 1950, as stated in section III, B , ( 1) of the Intermediate Report. 102 NLRB No. 32. 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent's "refusal to agree to reinstate the strikers [upon their] request," which was not unconditional, constituted a violation of Section 8 (a) (5) of the Act. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Respondent, Acme Brick Company, Mal- vern, Arkansas, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Local 602, United Brick and Clay Workers of America, AFL, as the exclusive representative of all its employees in the following appropriate unit with respect to rates of pay, wages, hours of employment, or other conditions of em- ployment : All production and maintenance employees at the Perla, Arkansas, plant, including miners, but excluding clerical and office employees, watchmen, guards, and supervisory employees as defined in the Act. (b) Threatening employees with discharge if they vote to strike, and instructing prospective employees not to join the above Union. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights of self-organization, to form labor organizations, to join or assist Local 602, United Brick and Clay Workers of America, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, and to en- gage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act. (a) Upon request, bargain collectively with Local 602, United Brick and Clay Workers of America, AFL, as the exclusive representative of all the employees in the aforesaid appropriate unit and embody any understanding reached in a signed contract. (b) Upon application, offer immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, to all employees who struck on May 8, 1950, dismissing, if necessary, any person hired on or after that date; and make them whole, in the manner set forth in section V of the Intermediate Report entitled "The Remedy," for any loss of pay suffered by reason of Respondent's refusal, if any, to reinstate them. ACME BRICK COMPANY 175 (c) Post at its Malvern, Arkansas, plant copies of the notice at- tached to the Intermediate Report marked "Appendix." a Copies of such notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon re- ceipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted, and take reasonable steps to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Fifteenth Region in writing, within ten (10) days from the date of this Order what steps the Respondent has taken to comply herewith. This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner," the words "A Decision and Order." If this Order is enforced by a decree of a United States Court of Appeals, the notice shall be further amended by sub- stituting for the words "Pursuant to a Decision and Order " in the caption, the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." Intermediate Report STATEMENT OF THE CASE Upon charges filed in the above-numbered cases, a consolidated complaint was issued dated December 4, 1951, alleging that the Respondent Acme Brick Company' had engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended. With respect to the unfair labor practices, the complaint as amended at the hearing alleged that the Respondent : (1) Failed and refused to bargain with the authorized representative of its employees in an appro- priate unit at its Perla (Malvern), Arkansas, plant on or about January 9, 1950, and at all times thereafter, and particularly on September 18 and 29, 1951; (2) on or about December 9, 1950, and April 9, 1951, bargained directly and indi- vidually with its employees in the unit above described and granted wage in- creases to such employees; and (3) through W. T. Poyner advised the employees that they should go to the union meetings and informed the union members that If they were going to go on strike they would be discharged and new men would be hired. Copies of the order consolidating the cases, the complaint, and notices of hearing were duly served upon Respondent and the Union. No formal written answer was served but at the opening of the hearing R. W. Pafford, representing the Respondent, stated orally on the record that the Respondent denied all unfair labor practices alleged in the complaint. He admitted the allegation in the complaint as to the appropriateness of the unit and that the Union represented a majority of the employees therein except that he denied that the Union repre- sented a majority subsequent to January 1, 1951. He also stipulated at the hearing that wage increases were granted by the Respondent on dates set forth in the complaint. Pursuant to notice a hearing was held at Malvern, Arkansas, on January 23 and 24, 1952. The General Counsel and the Union were represented by at- 'As will later appear, J. A. Gooch entered an appearance for the Respondent at the reopened hearing on February 28, 1952. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD torneys, the Respondent by Mr. R. W. Pafford, vice president and general manager of all its various plants. On January 31, 1952, after the close of the hearing, the General Counsel filed a written request for leave to amend the complaint by adding thereto an allegation that the Respondent's employees struck on May 8, 1950, and that the strike was caused, provoked, and prolonged by the Respondent's unfair labor practices previously alleged. The Respondent filed written objections to the granting of this motion. After due consideration the motion was granted and the hearing was ordered reopened to permit the parties to meet the new issue. At the reopened hearing held at Malvern on February 28, 1952, the parties were represented as at the original hearing except that Attorney J. A. Gooch also appeared for the Respondent. At that time the Respondent filed a general denial to the allegations in the amendment to the complaint. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues at both hearings. Oral argument was waived at the close of the testimony,' but briefs have been received from the General Counsel, the Respondent, and the Union. Upon the entire record in the case and from my observation of the witnesses, I make the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Acme Brick Company Is a Texas corporation with general offices in Fort Worth, Texas. It operates brick plants in Oklahoma, Texas, and Arkansas. The plant involved in this proceeding is located in Perla, 2 miles from Malvern, Arkansas, where Respondent is engaged in the manufacture and production of bricks and tile. In the course and conduct of its operations at Perla, Respondent annually purchases raw materials, principally mud clay, in an amount approxi- mating 172,252 tons, about one-half of 1 percent thereof coming from outside the State of Arkansas. It annually sells and distributes in excess of $1,000,000 of its finished products, of which amount approximately 65 percent is shipped from its Perla plant to and through States other than Arkansas. I find that the Respondent is engaged in commerce as defined in the Act. II. THE LABOR ORGANIZATION INVOLVED Local 602, United Brick and Clay Workers of America, AFL, is a labor organization admitting to membership employees of the Respondent. M. THE UNFAIR LABOR PRACTICES A. Chronology of events 3 On January 26, 1949, the Union was selected as their bargaining representa- tive by a majority of production and maintenance employees including miners, but excluding clerical and office employees, watchmen, guards, and supervisory employees, at the Perla plant.` Pursuant to the election, and certification by 2 However at that time, at the request of the Trial Examiner, there was some discussion on the record as to the issues involved and what remedy if any should be applied. • Except as otherwise indicated herein, none of the testimony is disputed. ' Prior to 1949, the Union had represented the employees of the Respondent at its Perla plant, presumably in the unit described, since 1937. Collective-bargaining con- tracts were executed each year and the parties apparently enjoyed amicable relations, excepting for a strike in 1940 lasting about 1 month. ACME BRICK COMPANY 177 the Board 's Regional Director , a collective-bargaining agreement was executed by the Respondent with the Union on February 3, 1949, effective for 1 year but with an automatic renewal clause.' December first following, the Union gave written notice, in accordance with the contract provisions , of intention to negotiate amendments to the contract with respect to vacations , shift differ- entials, paid waiting time , guaranteed hourly rate for pieceworkers , insurance, pensions, and wages , and enclosed suggested clauses covering insurance and pensions. In the negotiation meetings that followed , R. W. Pafford of Fort Worth, Texas , vice president and general manager of all plants and in charge of labor relations, acted for the Respondent. Up until about the time of the set- tlement agreement hereinafter discussed , Paul Pelfrey, international vice presi- dent of United Brick and Clay workers , assisted by the negotiating committee of Local 602, represented the Union. At the first arranged negotiation meeting on December 19, 1949, neither Pelfrey nor Pafford was present due to other engagements, and sent as substi- tutes International Organizer J. W. White and Charles Sewell , Respondent's district manager. The meeting adjourned after the Union's demands had been read aloud . At the next meetings , on January 9 and 10 , 1950, also held in Malvern at the office of the plant , Pelfrey repeated the various union proposals, giving the reasons for each request. The proposed amendments and additions to the existing contract follow : 1. Add to the seniority clause a provision for the posting of job vacancies. 2. The 6 holidays provided for in the contract to be paid holidays. 3. Increase vacation benefits as follows : 1 week's vacation after 1 year's actual service paid on the basis of 2 percent of previous year 's earnings ; 2 weeks' vacation after 5 years' service paid at 4 percent of previous years' earnings ; and 3 weeks' vacation after 15 years' service paid at 6 percent of earnings for previous years' 4. Add a provision for a differential of 4 cents an hour pay on the second shift and 6 cents for the third shift. 5. New clauses providing for (a ) paid waiting time; (b) insurance and pension benefits. 6. Amend the existing wage schedule by adding 20 cents an hour increase for all employees, and wage adjustments on certain skilled jobs. Each of these union proposals was discussed in some detail but none was acceptable to the Respondent , except that it indicated acquiescence to posting notices of job vacancies, provided the wording of that proposal was changed somewhat. Pafford stated that the existing piece rates allowed for waiting time, and if the Respondent agreed to the Union's proposal in that respect it would have to reduce the piece rates. He offered to extend the old contract without change for an additional year. At the next meeting, on January 26, Respondent's revision of the clause for posting job vacancies was accepted by the Union . On January 27, Charles Wheeler of the U. S. Conciliation Service was in attendance at the meeting and the Union restated its demands . Pafford then announced that Respondent would consent to no changes or additions to the existing contract , other than the clause 0 A supplement to the contract , dated March 3, 1949 , provided for a retroactive increase in pay of all employees in the unit for the period from August 12, 1948 , to March 2, 1949, in line with the wage scale provided for in the main contract. • The 1949 contract provided annual vacations for all employees who had completed 1 full year's service by June 1 of each year, pay therefor to be computed as follows : (a) Less than 5 years' service 40 hours at the regular hourly rate ; ( b) 5 to 10 years' service 1% percent of previous years' earnings ; and (c) 10 years or more service at 2 percent of earnings of previous years. 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for posting notices of job vacancies ; that if this was not satisfactory to the Union, Respondent would ask that the checkoff provision in the existing contract be eliminated entirely as it involved a lot of extra bookkeeping, and that a bonus clause, less satisfactory to the employees, be substituted for the existing previsions covering vacations. He also stated that this was the Respondent's best and last offer and asked the union negotiators to present it as such to the Union. The union representatives agreed to do this and also to report the results thereof at a later meeting of the conferees to be agreed upon. The members of the Union voted to reject the Respondent's proposal. On January 31, Pelfrey, from Texarkana, Arkansas, wrote Pafford at Fort Worth, Texas, enclosing revised proposals eliminating the Union's previous demands for paid holidays, paid waiting time, and shift differentials, and requesting the following changes : 1. Posting notices of job vacancies as previously agreed. 2. Employees with 10 or more years' service entitled to annual vacations with pay based on 4 percent of his earnings for the previous calendar year. (This was identical to the section in the old contract, except that the percentage basis was raised from 2 to 4 percent.) ' 3. Extend the duration date to April 30,1952, with an annual automatic renewal clause ; also 60 days prior to May 1 of any year, either party could give notice of a desire to negotiate for insurance benefits. 4. Increase hourly rates 10 cents an hour and piece and contract rates 12 percent, effective from February 3, 1950. On February 2, after receipt of the new proposals, Pafford wired Pelfrey that the union proposals were substantially the same as its previous ones, and his answer was the same. The same night the Union voted to terminate the existing contract and notice of such action was sent the Respondent. On March 16, the negotiators met again at the company office, with Conciliator Wheeler present. The Union's new proposals were discussed but no agreement thereon was reached. Pafford offered to renew the old contract, and reiterated that otherwise the checkoff provision would have to be eliminated and a bonus plan' substituted for all existing vacation benefits. The Union was unwilling to discard either the checkoff or the provision for vacations. The union negoti- ators stated that their wage demand was a substantial retreat from the December proposal, but that they still had an "open mind" and were willing to discuss any counterproposal in that respect. None was offered. On April 13, at a called meeting of the Union during working hours attended by all but about 14 of the union employees, the union committee was authorized to strike Respondent to force the negotiation and execution of a contract when- ever the committee deemed that strategy necessary. The next meeting of the negotiators was on May 5. Pelfrey reviewed the situation to date and stated that although strike action had been authorized, the union negotiators were open to proposals but wanted something "concrete" that they could submit to the membership. When Pafford again announced that the Respondent was willing to renew the old contract but with no changes excepting the job-posting clause previously agreed upon, Pelfrey accused him of not bargaining in good faith. Pafford replied, "That is one man's opinion." On May 8, all but 10 of the 200-odd union employees struck. Pickets were in- stalled at the plant entrances and the strike continued thereafter and was ' Article VI, section 2 (d) 3 of the contract. No details of such bonus plan were submitted to the union negotiators , but Pafford again emphasized that it would probably result in "less money" for the employees. ACME BRICK COMPANY 179 current at the time of the hearings . The Respondent by hiring replacements continued to operate the plant. Up to this time all negotiations between the union committee and the repre- sentative of the Respondent had been held at the plant offices in Perla. After the strike started, further negotiation meetings were held but at neutral points outside the strike area. At the first of these meetings held at Little Rock, Arkansas, 45 miles from Malvern, on June 20 with Conciliator Wheeler present, the union negotiators claimed that the Respondent was paying employees then working 9 hours for 8 hours' work and that this constituted a wage increase, which was a subject for negotiation. Pafford denied that any wage increase has been granted. He also stated that the Respondent's position as to wages as well as other matters in issue remained unchanged ; and again offered to renew the old contract with the bidding clause added to the article on seniority as agreed. In response to a question from Pelfrey, Pafford stated that the Respondent was not claiming inability to pay the wage rate requested, but insisted that the Respondent was then paying as high wages as its competitors were. Neither the Union nor the Respondent accepted the proposal of Conciliator Wheeler that the parties submit the issues to arbitration. The record fails to disclose any adequate testimony or proof that the Respondent was in fact paying 9 hours for 8 hours' work at the time. At the next negotiation meeting held in the county courthouse in Malvern on July 14, the Respondent's atitude on the issues still remained unchanged. It refused a request from the union negotiators for a statement of earnings at the Perla plant for the years 1947, 1948, and 1949, or to prepare a schedule of its new employees and their rates of pay. At a meeting at the city courthouse in Malvern on July 26 arranged by Conciliator Aikins, substituting for Wheeler, the union negotiators indicated willingness to make further concessions in their demands, but Pafford replied that the Respondent's position was the same as he had stated previously. The conciliator announced that he would have to withdraw from further participation in the negotiations, when it developed that a charge had been filed by the Union against the Respondent. On September 30, 1950, at the request of the Respondent, the union negotiat- ing committee headed by O. Z. Benton, international representative succeeding Paul Pelfrey who had been transferred to another region, met Plant Superin- tendent W. T. Poyner on the courthouse lawn in Malvern. Poyner showed the committee a detailed schedule of wage rates which Respondent proposed to put into effect at its Perla plant beginning October 9, 1950. The schedule rep- resented approximately a 5-cent increase in the hourly rate of the old contract, although there apparently were some hourly classifications who would receive no increases. Also employees paid by the volume of output in loading and shad- ing face brick were increased 5 cents per thousand. Poyner told the committee: Here is a revision of the present wage scale. I would like for your com- mittee to look it over. We want permission, we want it to be in effect. On questioning by the union committee, Poyner admitted that he was there only for the purpose of securing the Union's approval to the proposed wage schedule and not to negotiate on it or on any other matter in issue. He stated that he had no authority to negotiate on any provision for a contract ; that was a matter to be taken up with Mr. Pafford who was then at Fort Worth. The union committee refused to agree to the schedule because it was not a proposal or the product of bargaining negotiations. At Poyner's request, however, the committee agreed to submit the schedule to the union membership for approval. 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter at a regular meeting the union members rejected the proposal and the Union so advised Poyner in a letter dated October 3. On October 9, as had been indicated by Poyner, the new wage schedule was put into effect at Perla.' On October 19, the Respondent and the Union signed a formal settlement agreement which was later approved by the Regional Director. This agree- ment provided that the Respondent would post signed notices at its plant stat- ing in substance that the Respondent would bargain collectively upon request with the Union and not interfere with the protected rights of its employees, and that the Union would request a withdrawal of the charges in Case No. 32-CA-132 when the Regional Director was satisfied that the provisions of the agreement had been carried out.1° Thereafter, the notice attached to the settlement agreement was signed and posted by the Respondent as agreed. The next day, October 20, Benton wrote Pafford at Fort Worth, Texas, re- questing a bargaining conference as soon as possible. October 28 Pafford answered stating that his schedule was full until November 28. On November 1, International Vice-President Westbrook who was in Malvern wrote Pafford urging an earlier date. Pafford replied on the 6th stating that he might pos- sibly be available on November 22, but that he could not advise definitely about it until November 20. He again suggested the 28th. On November 8 Westbrook wrote Pafford that the Union was ready to meet "at any time" but wanted it "at the earliest possible date." There was no further word from Pafford about the meeting date " but he came to Malvern on November 28. Copies of most of the above correspondence had been sent to Conciliator Wheeler at Little Rock, and he was at Malvern on November 28. He conferred with Westbrook and the union committee at the union headquarters in Malvern, and also with Pafford at the Respondent's plant. Wheeler could not get the par- ties to agree on a common meeting place. Westbrook and the union committee wanted the negotiations to be held on neutral ground, as had been true in all meetings since the strike started, and had arranged for a room in the Malvern courthouse. Pafford insisted that the meeting be at the plant office even though it would require the union representatives to go through the picket line. In these preliminaries Wheeler acted as intermediary, talking with one side and then, either in person or by phone, reporting to and conferring with the other party. Wheeler did not testify but, according to Westbrook and Pafford, each side learned, through Wheeler, that the position of the other side on the issues was unchanged. As a result no negotiation meeting was held that day. On December 27 Respondent filed in the Regional Office of the Board a petition concerning the representation of the employees at the Perla plant alleging that "one or more individuals or labor organizations" was claiming to represent them. The petition was rejected as untimely. In July 1951, At- torney Charles A. Morris, representing the Union, wrote Pafford requesting that the latter agree to a bargaining meeting in Malvern. After considerable correspondence between them, in the course of which Pafford advised that the Respondent was again petitioning the National Labor Relations Board to hold an election to ascertain who was the representative of the employees in the 9 Pafford testified that as a result of rising prices , following the start of the Korean War, the Respondent raised wages in all plants except Perla to meet the wage schedules of its competitors. The raise in the other plants of Respondent was effective August 14, 1950. io The charge in Case No 32-CA-233 was not filed until November 23, 1951. " Pafford testified that he was in Colorado Springs, Colorado, attending a convention of the Structural Clay Products Institute for a week beginning about the end of October; and then went on a deer hunt in Texas ( an annual vacation ) from about November 16 to a few days before the 28th. ACME BRICK COMPANY 181 unit," arrangements were made for a meeting at the Respondent's plant and Morris requested that the Respondent furnish information as to the wage rates presently being paid at the Perla plant. The meeting held in the plant office " on September 18, 1951, was attended by Morris, Westbrook, and the union committee, Morris acting as spokesman. Morris handed to Respondent's Vice-President Pafford detailed written proposals, including modified requests of some proposals previously dropped and one new proposal, in subtance as follows : 1. An impartial arbitrator to dispose of unsettled grievances (new). 2. Posting of job vacancies ( as previously agreed upon). 3. Continuation of the old contract provision as to vacations, except that employees with 5 years' or less continuous service would receive 1 week's vaca- tion annually with pay amounting to 2 percent of their previous years' earnings, and those with more than 5 years' service to receive 2 weeks with pay amounting to 4 percent of their annual earnings. 4. A shift differential of 5 cents an hour on the second shift and 10 cents on the third shift ; pay for waiting time of 15 minutes or more. 5. Extend duration of the contract to February 3, 1953, with automatic renewal provision; after 6 months the contract could be reopened for the purpose only of negotiating a wage increase. 6. Insurance and pension benefits to employees. 7. Wage increase. The details of this were furnished by Morris later in the meeting and were the same as the modified demand of January 31, hereto- fore referred to, except that the piece-rate increase was reduced from 12 to 5 percent.) After the above demands had been read aloud at the meeting and there had been discussion on some of them, Morris asked about his previous written re- quest for data on present wages paid at Perla. Pafford produced a schedule of of wages showing the October 5-cent-an-hour increase heretofore referred to and also a further 5-cent-an-hour increase unilaterally granted in April 1951. Morris called attention to a provision in the expired contract wherein Respond- ent agreed to make a study of group life insurance and submit it to the Union for discussion,'* and asked if such a study had been made and submitted. Pafford responded in the negative. After an adjournment of some hours to permit a study by the union nego- tiators of the present wage rates, Morris presented the Union's wage demands in detail as above outlined. Pafford took the position that he would be unable to secure any further wage increase from the Wage Stabilization Board because the October and April raises amounted to approximately a 10-percent increase, and the Wage Stabilization Board would not go beyond that percentage. Morris maintained that a cost-of-living increase in wages could be secured ; that Re- spondent's wage scale contained inequities and was even substandard in the industry, and asked that the Union's proposal be submitted to the Wage Stabili- zation Board for approval. Pafford would not consent. An argument then developed as to who Respondent's competitors were, Pafford maintaining that the Perla plant manufactured facebrick and not the more expensive firebrick. Morris asked that Respondent's production figures be produced for the purpose of comparison, but Pafford refused to do so. 11 This referred to a second petition filed in July (32-RM-19) similar to the one previously filed (` 2-RM-1917).• The second petition was also rejected 18 At this meeting and the later meeting in September, the picket line at the front entrance was suspended temporarily 1; Section 2 of article V of the 1949 contract provided "The company agrees to make a study of some form of life insurance and will submit it to Union for mutual agreement." 250983- -vol. 102-53 --13 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After Pafford had failed to agree to the Union's wage increase request, Morris asked if he would be willing to make his present wage schedule retroactive to February 3, 1950. Pafford refused that suggestion and also the arbitration proposal. He insisted that a provision be added to the previously agreed to job- posting clause in the article on seniority giving the Respondent the right to "cancel this at any time it becomes argumentative." The Union objected that such a provision would cancel out all seniority provisions in the event of dis- agreement on any. Respondent then asked that the leave-of-absence provision in the old contract be amended so as to limit the leave to 30 days. This had not been proposed or discussed previously, but the Union agreed. Pafford said that June 19 would have to be eliminated as an annual holiday. June 19 is important to Negroes in certain sections of the South, including Arkansas, as it is the anniversary of the Emancipation Proclamation. It was one of the 6 holidays in the old contract and the union negotiators would not consent to its elimination.'1 Pafford rejected: (a) Any insurance or pension proposals or any mention in a new contract that future possibilities along those lines would be explored, as suggested by the Union and provided for in the previous agreement; (b) the proposal on vacations ; and (c) the 6-month reopening clause on wages. Pafford insisted that the duration date of the proposed contract be February 2, 1952, instead of a year thereafter. The request for shift differentials was postponed to a later meeting when he promised a counterproposal.16 The same disposition was made of the waiting time demand. The union committee then asked about returning the strikers to work. Paf- ford stated that even though a contract was agreed to he would not replace any of the strikebreakers as they were permanent employees. He agreed to take back the strikers without seniority as places were found for them, pro- vided they were under 55 years of age and could pass a physical examination by it company doctor, the same as required of a new employee. Morris suggested that such examination be conducted by 2 doctors, 1 paid by the Union. Re- spondent agreed to provide 2 doctors, both of its own selection. Prior to the next meeting, Pafford advised Morris that the Perla plant's business was about 25 to 30 percent firebrick and the balance facebrick, in dollar volume ; and Morris requested that he be furnished information showing dollar volume comparison with other firebrick manufacturers for the year 1949, and written counterproposals. At the next meeting which had been set for September 29, also in the plant office, Pafford reaffirmed Respondent's previously stated position. He refused to give a dollar volume comparison on firebrick as requested. The Union of- fered to withdraw the 6-month reopening clause on wages if agreement could be reached on a duration date beyond February 1952, then only a few months away, but Respondent mentioned no later time. Pafford rejected the shift differential proposal but indicated he would accept the proposition for paid waiting time provided the loading and shading department was eliminated therefrom, and the starting period thereof was changed from 15 minutes to 1 hour. After a conference of the union negotiators they offered the following: (1) Arbitration clause of some kind; (2) vacation clauses of the previous contract to remain unchanged; (3) insurance and pension demands withdrawn provided these subjects could be reopened later for discussion; (4) wage hicrease and 6- 16 Prior to the strike 40 percent of the 280-odd employees in the Respondent' s Perla plant were Negroes. In September 1951, of approximately 324 In the unit only 20 or 25 Negroes were working 16 No counterproposals on shift differences were submitted thereafter. ACME BRICK COMPANY 183 month reopening clause on wages eliminated provided the new contract ran to February 3, 1953, and the existing wage schedules were retroactive to February 3, 1950; (5) posting of jobs included in seniority paragraph, but with the cancel- lation clause eliminated ; (6) all strikers to be reinstated without loss of senior- ity, but subject to passing a physical examination participated in by 2 doctors, 1 to be selected by the Union; (7) 6 unpaid holidays, including June 19; and (8) 1 hour minimum for paid waiting time in the loading and shading department, one-half hour in other departments. In the discussion that followed, Pafford agreed to the provision for 6 unpaid holidays as provided in the old contract. He agreed to pay for waiting time over after one-half an hour for all other departments, but refused to include the loading and shading department on any basis. He rejected the proposal on arbitration, pensions and insurance , duration date, elimination of the seniority cancellation clause, and the return of the strikers on the basis stated. In con- nection with the return of the strikers Pafford stated that although he hadl no vacancies at the present time he thought that he would be able to absorb alit the strikers within 120 days without replacing any of his present workers but would not agree to reduce such statment to writing. Morris then unsuccessfully asked that seniority run from the date of the contract. The conference closedi with no arrangement for a later meeting, but with both sides indicating a willing- ness to meet again if requested . No meetings have since been held , nor has; either party requested a meeting. B. Conclusions on the refusal-to-bargain issue 1. The unit; representation therein The complaint alleges, Respondent admits, and I find that all production and maintenance employees, including miners, in the Employer's Perla, Arkansas, plant, excluding clerical and office employees , watchmen, and guards as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act; and that on or about January 26, 1949, a majority of the employees in the above unit designated the Union as their representative for the purposes of collective bargaining with the Respondent. The complaint also alleges that since on or about January 26, 1949, the Union, by virtue of Section 9 (a) of the Act, has been and is now the exclusive representative of all the employees in the said, unit for the purposes of collective bargaining. The Respondent admits that the Union represented a majority in the unit up to January 1, 1951. It contends, however, that after that date the Union lost its majority status. This contention Is presumably on the theory that the May 1950 strike was economic in nature, and that the strikers thereafter had been replaced and were no longer employees. But the strikers were re- placed immediately after the strike started as the Respondent at no time ceased operating its plant. Nevertheless, after the strike started, Respondent continued to recognize the Union and went through the form at least of bargaining with it. Indeed, after the Union on June 30 and September 13, 1950, filed charges that the Respondent, among other things, had refused to bargain, the Respondent formally agreed on October 19 to bargain upon request with that organization "as the exclusive representative of all employees" in the unit. The Respondent was under an obligation to honor the settlement agreement for a reasonable time after it had been executed.1' 17 Poole Foundry and Machine Company, 95 NLRB 34, enforced 192 F 2d 740 (C. A 4). 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent argues, however, that the 8-month period from October 1950, when the settlement agreement was executed , to the following July was an unreasonably long period for the Union to wait before requesting bargaining negotiations. I cannot agree that, under the circumstances, this was an unreasonable period to permit the development of contract negotiations. The Union had requested bargaining negotiations as early as October 20 , 1 day after the settlement agreement. Thereafter, on November 28, the Respondent made it clear to the Union, through the conciliator, that its previously stated position in the negotiations was unchanged, I. e., that it would extend the old contract 1 year but otherwise its terms would have to remain except for the job -posting addition. Thereafter, in December, the Respondent raised a question with the Regional Office of the Board concerning the representation of the employees involved. About the time the petition concerning the representation of the employees was rejected as untimely, the Union, in July 1950, again asked for bargaining meetings. Under the circumstances the apparent delay was not unreasonable. I therefore find that the Union at all material times herein has been and is now the exclusive representative of all employees in the unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 2. The effect of the settlement agreement As the complaint alleges that the Respondent refused to bargain with the Union on and after January 9, 1950, it includes a period prior to the October 19, 1950, settlement agreement. Normally the Board honors the terms of a settlement and will not consider unfair labor practice charges included in the settlement. However, the Board is not estopped from considering prior charges where there has been a failure to comply with the terms of the settlement18 In this instance I am convinced that the Respondent did not bargain in good faith with the Union after October 19, 1250, as it had agreed to do. At the time of the settlement the parties were in this position : Although the Respondent in July had refused to consider any of the Union's proposals (includ- ing a 10-cent an hour wage increase), except the previously agreed to job-posting clause, a week before the October settlement it unilaterally instituted what amounted to a 5-cent an hour increase among its employees then working. On November 28, after the settlement, although no actual negotiation meeting was held due to the stubborn refusal of both sides to concede on a meeting site, such a meeting would probably have been of no avail because Respondent announced that its position had not changed relative to the union demands. In other words, it was still insisting on the old contract terms, plus the job-posting clause and the 5-cent increase it had unilaterally put into effect. Although, as above noted, the Respondent, through the conciliator, made it clear to the union negotiator in November 1950, that it would not consider any of the other union demands, including an additional wage increase, the following April the Respondent again unilaterally instituted an additional 5-cent an hour wage increase, without even notifying the union negotiators of such intention as it had done prior to the first increase. In the only two negotiation conferences held thereafter, in September 1951, the Respondent shifted its position on the previously agreed to amendment to the seniority paragraph in the old contract providing for the posting of job vacancies, by insisting on adding thereto a provision that "The Company reserves is Poole Foundry and Machine Company, supra; and N. L. R. B. v. Prettyman, 117 F. 2d 286, 292. ACME BRICK COMPANY 185 the right to cancel this at any time it becomes argumentative ." It refused to negotiate on pensions or insurance or to agree to permit the strikers to return to work except as new employees . Even after the Union withdrew its demand for wage increases, including its request that the contract provide that the subject be reopened for discussion after 6 months , Respondent refused to execute a contract extending beyond the first of the following February , less than 4 months away. This attitude displayed none of the give-and-take of good-faith bargaining. It was mostly take and little give. The Respondent was "legally bound to nego- tiate with an open mind and sincere desire to reach an agreement in a spirit of amity and cooperation." N. L. R. B. v. Atlanta Broadcasting Company/, 193 F. 2d 641 (C. A. 5.) This it utterly failed to do. I therefore find that as the settlement terms were not complied with, the Board is not barred from inquiring into and making findings and conclusions relative to Respondent 's activities covered by the agreement. 3. The negotiations prior to the settlement ; cause of the strike As heretofore noted, there were only four formal bargaining conferences prior to the strike which started on May 8, 1950, to wit: January 9, 26-27, March 16, and May 5. At the earlier meetings, the Union's proposals for: (1) 20 cents an hour across-the-board wage increase and adjustment in the existing piece rates, (2) pay for the 6 holidays described in the old contract, (3) additional vacation allowances, (4) shift differential pay, (5) detailed provisions for insurance and pension benefits to employees, (6) amendment to the seniority paragraphs providing for the posting of job vacancies, and (7) paid waiting time were discussed. The Respondent promptly agreed to the provision for posting notices of job vacancies, after it had reworded the language thereof, but rejected all the other proposals. It offered to extend the old contract terms for an additional year with the addition only of the job-posting provision; and announced that if this was not agreeable it would insist on eliminating the checkoff provision in the old contract and substituting a bonus clause in lieu of the existing terms relative to vacation. Vice-President Pafford was vague as to the bonus proposal (and no specific proposal in that respect was ever submitted) but warned it would be less satisfactory to the employees than the existing provisions on vacations. Pafford insisted that these alternative terms, rejected by the union negotiators, be submitted to the union membership as Respondent's best and last offer. This was done and the membership also rejected them as inadequate. The Union then submitted revised proposals asking for 10 cents an hour increase and 12 percent increase for pieceworkers. It asked for a duration date of April 30, 1952, with a provision for reopening negotiations on pensions and insurance 60 days prior thereto. The Union also modified its vacation requests. The Respondent stood pat on its original proposition. It rejected the Union's new proposals and offered no counterproposals thereto. After the strike started, three conferences were held by the negotiators on June 20, July 14, and July 26, 1950. Nothing was accomplished, although a conciliator was present at two of the meetings. Wages were discussed but Pafford stated no increase would be considered, although the Respondent was well able to pay the increases requested. He stated that the Respondent's position on the Union's new proposals was the same as he had announced prior to the strike. He reiterated that position even after the Union announced it was prepared to make further concessions. In spite of this adamant attitude on 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any wage increase, last expounded in late July, the Respondent on October 9 -unilaterally instituted approximately a 5-cent an hour wage increase, after first giving notice to the Union of its intention to do so.1' As heretofore found, even after the Respondent had formally agreed to bargain with the Union, it failed to bargain in good faith on the issues, and again insti- tuted a unilateral wage increase. I therefore find on the record considered as a whole that the Respondent on and after February 2, 1950,20 refused to bargain in good faith with its employees' authorized representative by (a) failing to negotiate on pensions and insurance for the employees, wage increase requests and other requested changes in the terms and conditions of their employment, and shifting its position on the seniority provisions, and (b) by instituting unilateral wage increases at times when increases in pay were subjects of negotiation and no impasse had been reached thereon. I further find that by the above unfair labor practices the Respondent caused and prolonged the strike of its employees; and that its refusal to agree to reinstate the strikers on request also was a refusal to bargain. C. Interference, restraint, and coercion Tony Robinson, employed by the Respondent from 1945 up to the time of the strike, testified that in January 1950, prior to attending a union meeting, Sup- erintendent Poyner asked him at work in the presence of Foreman Holmes if he was going to attend the union meeting, and when Robinson responded in the affirmative, Poyner told him he had "better go up and find out what was going on," that if the members voted to strike he had better not so vote "because if we did we would all get fired," as the Respondent would hire a new crew. Plant Superintendent Poyner testified that he could not recall any January 27 conversation with Robinson regarding a union meeting but refused to deny that he may have talked to Robinson about such a meeting. He denied that he in- structed Robinson to go to the union meeting and vote against a strike on threat 'of being fired. On cross-examination, Poyner admitted that he may have asked Robinson to attend a union meeting, as he had made arrangements on several occasions for members to attend such meetings. He admitted that it was "com- mon knowledge" that the employees were talking about striking and that he "probably" talked to some of them about it and told them "he hoped they didn't have to strike." He also admitted that he talked to Robinson about the Union or the strike and that in talking to employees he may have stated that if the Union struck, employees "might be replaced." Foreman Holmes could not recall talking with Robinson or hearing Poyner talk to Robinson on January 27 about a union meeting. He testified that he could not remember being present on any other occasion when Poyner talked to Robinson. In view of the hazy memory of both Poyner and Holmes on the subject and Poyner's admissions, I credit Robinson's specific testimony. Tom Wiley worked for the Respondent from sometime in the year 1946 to 1948. In March 1949 he was rehired and worked until the time of the strike. He testified that he was rehired by Superintendent Poyner when he approached "The notice of the wage increase was given to the Union, not at a called meeting or in a conference by an official of the Respondent with authority to negotiate and bargain, ,but by Plant Superintendent Poyner. Poyner, in effect, admitted that the wage increase was not a proposal, and that he had no authority to negotiate on wages or any other bargaining subject-that his mission was limited to notifying the Union of what the Respondent had already decided to do and to obtain the Union's approval thereof. Unlike Montgomery Ward d Co., 90 NLRB 1244, neither this nor any other wage proposal had been submitted by the Respondent in any prior negotiations. m The date Pafford notified the Union its second modified proposals were also rejected. ACME BRICK COMPANY 187 him about a job; and at that time Poyner told him that he would not have to join the Union, and if he was given a job he should not do so ; that if he needed any money he should come to him instead of going to the Union. Wiley testified that no one else was present at the time of this conversation. Superintendent Poyner admitted that he rehired Wiley in March 1949 and at that time told Wiley he would not have to join the Union. He denied telling Wiley that he should not join the Union. He testified that he could not remember telling Wiley he could "borrow money from the Company," but stated that he did not indicate to Wiley his joining or not joining the Union would have any bearing on his employment. On cross-examination Poyner admitted that he could not recall the conversation at all or where it took place. I find that on March 1949 Superintendent Poyner told Wiley when he was rehired that he was not to join the Union. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices I will recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It has been found that the Respondent has refused to bargain collectively with the Union in violation of the Act. It will therefore be recommended that the Respondent cease and desist therefrom and, upon request, bargain collectively with the Union with respect to wages, hours, and other terms and conditions of employment, and if an understanding is reached, embody such understanding in a signed contract. It has been found that the strike, current at the time of the hearings, was caused and prolonged by the Respondent's unfair labor practices. During the last bargaining negotiation meetings in September 1951, the Respondent refused to agree to return the strikers to their former positions without loss of seniority because all such positions had in the meanwhile been filled. These striking em- ployees, under the circumstances, are entitled to full reinstatement, upon applica- tion, regardless of whether or not their positions have been filled by Respondent" Therefore, in order to restore the status quo as it existed prior to the time the Respondent engaged in the unfair labor practices and thereby effectuate the policies of the Act,' it will be recommended that the Respondent shall, upon application " of the May 8, 1950, strikers, offer them reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, dismissing, if necessary, any person hired on or after = Rubin Brothers Footwear, Inc, 91 NLRB 10, 15; American Bread Company, 44 NLRB 970, 979. $' City Packing Company, etc., 99 NLRB 1261. a I do not construe the demand of the Union, made during bargaining negotiations, that the strikers be returned to work without loss of seniority, as a blanket , unconditional application for reinstatement on behalf of all the strikers. (Cf. Foote d Davies, 66 NLRB 416.) Nevertheless , the Respondent's response to the above demand clearly indicated that if the strike was abandoned and the strikers unconditionally requested reinstatement, such requests would, in effect, have been regarded and treated by the Respondent as applications for employment. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that date ; and make them whole for any loss of pay they may have suffered, or may suffer, by reason of the Respondent's refusal, if any, to reinstate them, by payment to each of them of a sum of money equal to that which he normally would have earned as wages from 5 days after the date of his application to the date of the Respondent's offer of reinstatement, less his net earnings during such period. Loss of pay to be computed on each separate calendar quarter basis as provided in F. W. Woolworth Company, 90 NLRB 289. For the purposes of de- termining reinstatement rights and back pay due, the Respondent , upon request, shall make available to the Board all necessary records. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following : CONCLUSIONS OF LAW 1. Local 602, United Brick and Clay Workers of America, AFL, is a labor organ- ization within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees at the Perla plant , including miners, but excluding clerical and office employees , watchmen, guards, and supervisory employees as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Local 602, United Brick and Clay Workers of America, AFL, was on Janu- ary 26, 1949, and at all material times since has been , the exclusive representa- tive within the meaning of Section 9 (a) of the Act of all employees in the aforesaid unit for the purposes of collective bargaining. 4. By refusing on February 2, 1950, and at all times thereafter, to bargain collectively in good faith with the Union as the exclusive bargaining representa- tive of the employees in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By said acts and by threatening employees with discharge if they voted to strike and instructing a rehired employee not to join the Union, the Respond- ent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act in violation of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] Appendix NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a trial examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT threaten our employees with loss of employment for voting to strike, or instruct prospective employees not to join the above union. WE WILL NOT in any manner interfere with , restrain , or coerce our em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist LOCAL 602, UNITED BRICK AND CLAY WORKERS OF AMERICA , AFL, or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or SOUTHEASTERN MICHIGAN GAS COMPANY 189 protection, and to refrain from any or all of such activities , except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as authorized in Section 8 ( a) (3) of the Act. WE WILL bargain collectively, upon request, with LOCAL 602, UNITED BRICK AND CLAY Wouxs is OF AMERICA, AFL, as the exclusive representative of all our employees in the following bargaining unit, and if an understanding is reached we will embody . such understanding in a signed contract. The bargaining unit is: All production and maintenance employees at the Perla, Arkansas, plant, including miners, but excluding clerical and office employees, watchmen, guards, and supervisory employees as defined in the Act. WE WILL offer , upon application, to all employees who went on strike on May 8, 1950, full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay they may suffer as a result of our refusal to reinstate them after such application. ACME BRICK COMPANY, Employer. By --------------------------- (Representative ) (Title) Dated-------------------- This notice must remain posted for 60 days from the date hereof , and must not be altered, defaced, or covered by any other material. SOUTHEASTERN MICHIGAN GAS COMPANY and LOCAL UNION No. 339, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WARE- HOUSEMEN & HELPERS OF AMERICA, AFL, PETITIONER. Case No. 7-RC-1967. January 13,1953 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Iris H. Meyer, hearing officer. The hearing officer's rulings made at the hearing are free from preju- dicial error and are hereby affirmed.' As to those rulings, we note particularly that the Petitioner objects to the hearing officer's grant of intervention to Utility Workers Union of America, CIO, alleging that the Intervenor has made no showing of interest. The Inter- venor holds a certification of representatives issued to it on October 26, 1951 (a year and a day prior to the filing of the petition herein). We fiend, therefore, in accord with the hearing officer, that it has suffi- cient interest in the proceeding to allow its intervention. We. discount, as without merit, the objection . of Utility Workers Union of America, CIO (hereinafter called Intervenor ), to the hearing officer 's rejection of the Intervenor's offer of evidence of unfair labor practices alleged to have been committed by the Employer. Worden-Allen Company, et al., 99 NLRB 410. 102 NLRB No. 18.