Lloyd A. Fry Roofing Co.

200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining representative .5 We find it unnecessary to make any finding and conclusion upon objections 1 (a) and 1 (b). We shall order that the election be set aside and direct that a new election be held. [The Board set aside the election held on July 23, 1952.] [Text of Direction of Second Election omitted from publi- cation.] SReeves Instrument Corporation, 100 NLRB 1331. LLOYD A. FRY ROOFING COMPANY and MISCELLANEOUS AND WOODWORKERS UNION, LOCAL 2565, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL. Case No. 20-CA-779. July 17, 1953 DECISION AND ORDER On April 21, 1953, Trial Examiner Wallace E. Royster issued his Intermediate Report in this 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 Respondent filed exceptions to the Intermediate Report and a supporting brief and requested oral argument before the Board. The Respondent's request for oral argument is denied as the record , exceptions, and brief, in our opinion, adequately present the issues and the positions of the parties. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Styles]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the 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 additions and modifications: 1. While we concur in the Trial Examiner's conclusion that the Respondent failed to invest sufficient authority in its bargaining representative, we think that the authority that must be vested in a party's representative in bargaining negotiations is not readily susceptible to general definition; the more realistic way to appraise this question, in our view, is to consider the facts of the particular case. In the instant case the authority of the Respondent's representative was limited to the transmittal of proposals to and from the 106 NLRB No 34. LLOYD A. FRY ROOFING COMPANY 201 Respondent , discussion concerning such proposals , and recom- mendations to the Respondent . On these facts we find, in agreement with the Trial Examiner, that the Respondent did not give its negotiator sufficient authority to engage in give-and-take collective bargaining and thereby violated Section 8 (a) (5) of the Act.' 2. Unlike the Trial Examiner we are not persuaded that the Respondent ' s conduct as revealed by the record in this case is indicative of a predilection to commit other unfair labor practices in the future . We shall therefore not adopt his recommended broad cease -and-desist order but shall order the Respondent to cease and desist only from engaging in the unfair labor practices found and any like or related conduct. ORDER Upon the entire record in this case , and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Re- spondent , Lloyd A. Fry Roofing Company, San Leandro, California , its officers , agents, successors , and assigns shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith with Mis- cellaneous and Woodworkers Union , Local 2565, United Brother- hood of Carpenters and Joiners of America , AFL, as the exclusive representative of all employees in the appropriate unit in respect to rates of pay, wages , hours of employment, and other conditions of employment. (b) In any like or related manner interfering with, restrain- ing, or coercing its employees in the exercise of the right to self-organization , to form labor organizations , to join or assist Miscellaneous and Woodworkers Union, Local 2565, United Brotherhood of Carpenters and Joiners of America, AFL, or any other labor organization , to bargain collectively through representatives of their own choosing , to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request , bargain collectively in good faith with Miscellaneous and Woodworkers Union, Local 2565, United Brotherhood of Carpenters and Joiners of America, AFL, as the exclusive representative of all its employees in the appro- 'See Century Cement Manufacturing Company , Inc., 100 NLRB 1323; Standard Generator Service Company of Missouri. Inc., 90 NLRB 790, at 791, 800, enfd 186 F. 2d 606 (C A. 8); Brown and Root , Inc., 86 NLRB 520 at 521 , 531, enfd as modified 190 F. 2d 222 (C A 8); J. B Cook Auto Machine Company, Inc , 84 NLRB 688 at 698, enfd 184 F 2d 845 (C A 6); V-O Milling Company, 43 NLRB 348 at 360; Great Southern Trucking Co v. N L. R B . 127 F 2d 180 (C.A. 4), cert. denied 317 U S. 652 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD priate unit in respect to rates of pay, wages , hours of employ- ment, and other conditions of employment , designating as representative for purposes of negotiation one possessing authority to reach understanding with the Union and if an understanding is reached to embody the understanding in a signed agreement. (b) Post at its plant in San Leandro , California, copies of the notice attached hereto and marked "Appendix A."2 Copies of said notice , to be furnished by the Regional Director for the Twentieth Region, shall , after being duly signed by Re- spondent ' s authorized representative , be posted by 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 Respondent to insure that said notices are not altered , defaced, or covered by other material. (c) Notify the Regional Director for the Twentieth Region in writing within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. 2 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." 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 bargain collectively, upon request, with Miscellaneous and Woodworkers Union, Local 2565 , United Brotherhood of Carpenters and Joiners of America, AFL, and designate as our negotiator an individual authorized to reach an understanding with that organization with respect to rates of pay , wages, hours of employment, and other conditions of employment , and if an under- standing is reached , we will embody such understanding in a signed agreement . The bargaining unit is: All production and maintenance employees , excluding office and clerical employees, professional employees, guards , the foreman , the shipping clerk, and supervisors as defined in the Act. WE WILL NOT by unilaterally changing working condi- tions or by failing sufficiently to empower a negotiator to meet and deal with the Union, or in any like or related manner, interfere with, restrain , or coerce our employees LLOYD A. FRY ROOFING COMPANY 203 in the exercise of the right to self-organization , to form labor organizations , to join or assist Miscellaneous and Woodworkers Union, Local 2565, United Brotherhood of Carpenters and Joiners of America , AFL, or any other labor organization , to bargain collectively through repre- sentatives of their own choosing , to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection , and to refrain from any or all 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. LLOYD A. FRY ROOFING COMPANY, Employer. Dated .... ................ By ............................................... (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced , or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon charges filed by Miscellaneous and Woodworkers Unicn, Local 2565, United Brother- hood of Carpenters and Joiners of America , AFL, herein called the Union,, against the Lloyd A Fry Roofing Company , San Leandro, California, herein called the Respondent, the General Counsel of the National Labor Relations Board issued his complaint , dated January 30, 1953, alleging that the Respondent had committed and was committing unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended , 61 Stat 136, herein called the Act In respect to unfair labor practices, the complaint alleges that at a time when the Re- spondent was under a duty to do so, it failed to bargain in good faith with the Union in that it unilaterally made a change in working conditions at its plant and did not invest any agent with authority to accept or reject bargaining proposals or otherwise to negotiate and to conclude a collective- bargaining agreement with the Union Respondent' s answer asserts that. (1) Its representative for purposes of bargaining with the Union had authority to negotiate a collective -bargaining agreement , (2) changes in working conditions at the plant were made to improve efficiency of operations , (3) such changes were discussed with the Union and (4 ) denies the commission of unfair labor practices Pursuant to notice a hearing was held before the undersigned Trial Examiner in San Francisco , California , on March 9 , 1953 All parties were represented , were permitted to examine and cross - examine witnesses , and to introduce evidence pertinent to the issues Briefs have been received from counsel for all parties Upon the entire record in the case and from my observation of the witnesses , I make the following: FINDINGS OF FACT L THE BUSINESS OF THE RESPONDENT Lloyd %. Fry Roofing Company is a Delaware corporation , with its principal office and place of business at Summit , Illinois Respondent is engaged at several plants located at various points in the United States in the manufacture of asphalt roofing. The only operation of the Respondent of concern here is its plant in San Leandro, California , where asphalt roofing , shingles, and rolled material are manufactured. 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During 1952 Respondent purchased and imported from places outside the State of California materials to its San Leandro plant having a value in excess of 1 million dollars During the same period Respondent sold and shipped from that plant to points located outside the State of California products having a value in excess of $25,000 I find that the operations of the Respondent are in commerce and affect commerce within the meaning of the Act IL THE LABOR ORGANIZATION INVOLVED Miscellaneous and Woodworkers Union, Local 2565, is a labor organization affiliated with United Brotherhood of Carpenters and Joiners of America , AFL, admitting to membership employees of the Respondent Ill. THE UNFAIR LABOR PRACTICES On August 27, 1952, following a Board - directed election and based upon its result, the Board issued its certificate I to the Union as the representative for purposes of collective bargaining of Respondent ' s employees in a unit comprised of: All production and maintenance employees , excluding office and clerical employees, professional employees, guards, the foreman, the shipping clerk, and supervisors as defined in the Act Immediately following notice of its certification , the Union requested a meeting for pur- poses of negotiation Such a meeting was held on September 19 in the office of George Bahrs, a San Francisco attorney whom the Respondent had designated as its representative The Union presented a contract proposal which was discussed in detail Bahrs told them that he would present the proposal, together with the Union' s supporting contentions , to the Re- spondent and would offer a counterproposal at the earliest opportunity Union representatives testified that they inquired then of Bahrs as to the extent of his authority to bind the Re- spondent Bahrs testified that he recalled no such question at this meeting On October 7 about 20 employees at the plant, constituting apparently the entire group of workers on certain continuous machine operations , were called into one of the plant offices where they were told by Dave McKay , described in the record as a general superintendent from the head office , that as of the following day relief periods would be abolished Some of the men protested , but McKay told them that the change would be made and that nothing could be done about it The men affected had for some time in the past been given a 30-minute relief at the end of each 90-minute working period During an 8-hour shift, 4 such relief periods occurred , and during the 1 of his election an employee might eat his lunch During any such period employees who had been relieved might be directed to perform some bit of maintenance work or to assist in an emergency situation. On October 10 the second bargaining meeting occurred , at which Bahrs offered a written counterproposal and told the Union that the Respondent was prepared to sign a contract on those terms The offer was not acceptable to the Union and its representatives told Bahrs to what they objected. Bahrs, in the presence of union representatives , then dictated a letter to the Respondent setting forth the union position and his evaluation of the situation in terms of a possible strike One of the union negotiators , Chester Bartalim , said that the Respondent had better supply a negotiator with authority to act or the employees might strike, and asked if Bahrs could not persuade the Respondent to invest him with such authority as would permit him to reach agreement on whatever terms he thought fair . Bahrs answered that he did not have such wide authority and did not expect to get it He told them, however , that he would make recommendations to the Respondent in respect to contract terms On October 13 the employees in the unit represented by the Union began a strike which was still in effect at the time of the hearing . Further meetings were held on October 29, November 7, and finally, on January 12; 1953 In the course of them Bahrs said that the Respondent would modify its earlier position to the extent that it would recognize shop stewards , permit notices of union meetings to be posted on plant bulletin boards, and would agree to forego a no-strike pro- vision rather than submit grievances to final arbitration On October 29 the union representa- tives again requested that the Respondent be represented by someone with complete authority to execute a contract without the necessity for referring such matters back to the Respondent in Illinois 'Neither the representative status of the Union nor the propriety of the unit is disputed I find the unit set forth herein to be appropriate for purposes of collective bargaining and that the Union at all times material has been and is the designated representative of those employees LLOYD A. FRY ROOFING COMPANY 205 I have not attempted to set out in any detail the proposals and counterproposals made at these meetings It is clear enough that they did not develop to a point where it can be said that the Respondent by the adoption of an inflexible position or by a refusal to consider alter- natives had demonstrated a mind "hermetically sealed" to the Union ' s proposals It is not the theory of the complaint that the position of the Respondent taken with respect to any matter of negotiation was such as to carry with it an indicia of bad-faith bargaining. It is clear that Bahrs was willing to meet with the union representatives at reasonable times and to discuss with them matters affecting wages, hours , and working conditions in the plant But it is equally clear also that he did so not as one with authority to enter into any sort of agreement with the Union, even tentatively Bahrs attended the meetings merely as a conduit through which the Union's position was transmitted to the Respondent Bahrs testified that he did make recommendations to the Respondent in respect to bargaining issues, but the com-' munication running between him and the Respondent , appearing in the record, amounts to no more than a factual report of developments and Bahrs ' prophesy as to a probable strike It is not suggested that the union representatives were in any fashion the victims of a deception The limits of Bahrs' "authority" were no secret from the beginning. The union negotiators were aware throughout the course of the meetings that the Respondent ' s repre- sentative was there merely to listen and report Bargaining connotes a meeting between equals and neither party discharges the obligations imposed upon him by statute by merely providing an ear to which demands , requests , or sug- gestions can be made . In this case the Union , by virtue of the Act , had a right to meet with some representative of the management who could be persuaded to effective action This is not to say that the Act requires bargaining representatives to be invested with plenary authority , commissioned to accept or reject proposals instantly and fully authorized to enter into final and complete agreements at the bargaining table. It does mean, however, that employers and unions alike , in order to discharge the duty imposed by statute to bargain in good faith, must send to the bargaining table representatives invested with an authority comparable to that which would be given to any other representative of the party who was commissioned to seek agreement in important matters of business. It does appear that Bahrs was authorized to conclude agreement with the Union on the basis of the Respondent's counterproposal . But he lacked authority to vary from that written instrument , even to the extent of tentatively agreeing to a change until some official in Illinois agreed to it By this process of long-distance bargaining the Union was deprived of the opportunity to meet its opposite number across the table and its situation could hardly have been worsened had the Respondent insisted that negotiations be carried on through the medium of the post office. I consider it to be no defense to the Respondent that the union negotiators may not have been commissioned to enter into a final and binding agreement without reference to the union membership The representatives were persons of influence and authority in their organiza- tion and agreements with them, even tentative in nature , reasonably promised completion As on October 7 the Respondent was under an obligation to bargain with the Union in re- spect to wages, hours , and conditions of employment, and as the change by abolition or modification of the rest periods wAs a substantial one in respect to working conditions at the plant , it was a matter on which the Union should have been heard before rather than after its accomplishment The unilateral action of the Respondent in this matter is not consistent with a good-faith recognition of the status of the Union I find that by failing to invest its representative , Bahrs, with authority to negotiate a bargaining agreement with the Union and by unilaterally changing the working conditions at the plant on October 8, the Respondent has failed to bargain in good faith with the Union, and has thereby violated Section 8 (a) (5) of the Act By refusing to bargain , as found , the Respondent interfered with, restrained , and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and has thereby violated Section 8 (a) (1) of the Act IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The operations of the Respondent described in section I, above, occurring in connection with the conduct described in section III, 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 the unfair labor practice of failing to bargain in good faith with the representative of its employees, it will be recommended that 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent cease and desist therefrom , and upon request empower a negotiator to meet with and deal with the Union in matters of collective bargaining. The negotiator designated must be one who has authority to conclude agreement with the Union once understanding has been reached. Although the unfair labor practice found relates only to bargaining , the Respondent has in a fundamental sense rejected the command of the statute and has thereby indicated in my opinion the probability of the commission of other and different unfair labor practices in the future. It will therefore be recommended that the Respondent cease and desist from violating the Act in any particular. Upon the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Miscellaneous and Woodworkers Union, Local 2565, United Brotherhood of Carpenters and Joiners of America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees, excluding office and clerical employees, professional employees , guards, the foreman, the shipping clerk, and supervisors 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. Miscellaneous and Woodworkers Union, Local 2565, United Brotherhood of Carpenters and Joiners of America , AFL, was at all times material herein and now is the exclusive representative of all employees of the Respondent in the unit aforesaid for purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By unilaterally changing working conditions and by failing to invest a negotiator with requisite authority , 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 such unilateral conduct and by such failure to invest authority, the Respondent has interfered with, restrained , and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [ Recommendations omitted from publication.] DES MOINES PACKING COMPANY, Petitioner and LOCAL 7, UNITED PACKINGHOUSE WORKERS OF AMERICA, CIO and DES MOINES PACK INDEPENDENT UNION0 Case No. 18-RM-133. July 17, 1953 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Raymond C. Sandberg , hearing officer . The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three -member panel [Members Houston, Murdock , and Peter- son] Upon the entire record in this case , the Board finds: 1. The Employer is engaged in commerce within the mean- ing of the Act. 2. The labor organizations involved claim to represent employees of the Employer. 106 NLRB No. 41.