Williamsburg Steel Products Co.

288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondents to refrain in the future from abridging any of the rights guaranteed employees by said Section 7 24 Having found that the Respondents discharged Fern Miller on December 13, 1958, in violation of Section 8(a) (1) and (3) of the Act, I shiall recommend that the Respondents offer her immediate and fall reinstatement to her former or a sub- stantially equivalent position without prejudice to her seniority and other rights and privileges, and make her whole for any loss of pay she may have suffered by reason of the discrunination against her, as found above , by payment to her of a sum of money equal to the amount of wages she would have earned , but for the said dis- crmunation, between December 13, 1958, and the date of a proper offer of rem- statement to her as aforesaid, and that the said loss of pay be computed in accord- ance with the formula and method prescribed by the Board in F W Woolworth Company, 90 NLRB 289, to which the parties to this proceeding are expressly referred 25 Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following CONCLUSIONS OF LAW 1 The Respondents constitute, and have constituted at all times material to this proceeding, a single employer within the meaning of Section 2(2) of the Act 2 Amalgamated Meat Cutters and Butcher Workmen of America, AFL-CIO, is, and has been at all times material to this proceeding , a labor organization within the meaning of Section 2(5) of the Act 3 By discriminatorily discharging Fern Miller, as found above, the Respondents have engaged m and are engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act 4 By interfering with, restraining, and coercing employees in the exercise of rights guaranteed them by Section 7 of the Act, as found above, the said Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act 5 The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act [Recommendations omitted from publication l -May Department Stores d/b/a Famous Bap r Stores v NLRB, 326 US 376 Bethlehem Steel Company v N L R B, 120 F 2d 641 (C A, D C) Z In accordance with the Board's past interpretation, the expression "former or a substantially equivalent position " is intended to mean "former position wherever possible but if such position is no longer in existence , then to a substantially equivalent position " The Chase National Bank of the City of New York San Juan , Puerto Rico, Branch, 65 NLRB 827 Benne Katz, Alfred Finkel, and Murray Katz, d/b/a Williams- burg Steel Products Company and Architectural and Engi- neering Guild, Local 66, American Federation of Technical Engineers, AFL-CIO. Case No 2-CA-5368 January 22, 1960 DECISION AND ORDER On July 13, 1959, Trial Examiner David London issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take 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 the General Counsel filed a brief 126 NLRB No 39 WILLIAMSBURG STEEL PRODUCTS COMPANY 289 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 Rodgers, Jenkins, and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Intermediate Report, the exceptions, and the briefs,' and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the modifications and additions noted below 2 We agree with the Trial Examiner that the Respondent violated' Section 8 (a) (5) and (1) of the Act I by instituting, during the Union's certification year and without notifying or consulting with the Union, the following unilateral action: (1) Granting merit in- creases in October 1956 and January 1957; (2) changing sick-leave policy on or about March 11, 1957; (3) announcing a new automatic wage increase system in April 1957.' We find no merit in the Re- spondent's contention that the existence of an impasse in the bargain- ing negotiations with the Union justified it in taking such unilateral action. Respondent in this connection asserts that the alleged im-_ passe derived in part from the fact that the Union and another com- pany in the industry entered into a collective-bargaining agreement containing a "most favored nations" clause.' In the circumstances of this case, we reject this position .6 For the evidence is clear that the ' The Respondent ' s request for oral argument is denied , as the record , including the exceptions and briefs, adequately presents the issues and the positions of the parties 3 As we find insufficient support in the record therefor , we do not adopt the statements in the Intermediate Report that (1) Chief Draftsman Halpern invited employee Langiulli into the former's office to look at a company pension plan , and (2 ) Halpern told em- ployee Thibou that management had been working on a company contract for some time,, that the contract contained a pension plan which the Union could not obtain for the men, and that the Union 's Pioneer contract was not as good as the company contract. However, these findings of the Trial Examiner -are not essential to our concurrence with the Trial Examiner's ultimate conclusions s See N.L R B. v Crompton-Highland Mills, Inc, 337 U.S. 217 ( 1949 ) ; Armstrong. Cork Company v N L R B , 211 F 2d 843, 847 (C A 5, 1954) , Chambers Manufacturing Corporation, 124 NLRB 721, Bonham Cotton Mills, Inc., 121 NLRB 1235, 1236. 4 we construe the Intermediate Report as finding violations only with respect to the above specified unilateral acts As the General Counsel filed no exceptions, we do not pass on any other allegations in the complaint There is no allegation in the complaint that the Respondent generally bargained in bad faith in the actual negotiations with the Union. Therefore, we do not adopt the broad statement in the Intermediate Report that ". . Respondent was merely going through the motions of collective bargaining without a genuine intention of trying to negotiate an agreement with the Union . .11 s The clause is captioned "ARTICLE XXV-MOST FAVORED NATIONS CLAUSE," and provides : "Anything to the contrary notwithstanding, no other Employer in The Hollow Metal Door & Buck Industry shall be accorded terms and conditions in a collective bar- gaining agreement which are more favorable than those contained herein , including classifications and minimum rates of pay. The foregoing however, shall not apply to, general wage increases and rates of pay " 6 We do not adopt, as we find it unnecessary to pass upon, the Trial Examiner' s state- ment that "The clause did not . make it impossible for the Union to conclude an agreement with Respondent. .. 554461-60--vol 126-20 '290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent undertook its unilateral actions before negotiations were discontinued in May 1957, or before, as we find on the record, the existence of any possible impasse. 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 the Respondent, Benno Katz, Alfred Finkel, and Murray Katz, d/b/a Williamsburg Steel Products Company, Brooklyn, New York, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Unilaterally changing wages, rates of pay, or sick leave, or granting merit increases, or in any similar or related manner refusing to bargain collectively with Architectural and Engineering Guild, Local 66, American Federation of Technical Engineers, AFL-CIO, as the exclusive representative of its employees in the following unit : All technical engineering employees in the engineering department of the New York operation, including estimators, technical clerks, de- .signers, draftsmen, listers, schedulers, hardware coordinators, methods and/or process engineers, and other technical engineering employees .doing similar work regardless of assigned classification, but excluding all other employees, specifically office clerical employees, production ,employees, salesmen, mechanics, teamsters, guards, and supervisors as defined in the Act. (b) Refusing to bargain collectively concerning rates of pay, wages, -hours of employment, and other conditions of employment with the Union as the exclusive representative of its employees in the above, ,described unit. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with the Union as the ex- 'elusive representative of all its employees in the above-described unit .concerning rates of pay, wages, hours of employment, and other con- ditions of employment, and embody any agreement reached in a signed contract. (b) Post at its plant at Brooklyn, New York, copies of the notice attached hereto -marked "Appendix A." 7 Copies of said notice, to be furnished by the Regional Director for the Second Region, shall, after being duly signed by the Respondent's authorized representa- tive, be posted by the Respondent immediately upon receipt thereof and maintained 'by it for 60 consecutive days thereafter in conspicu- ous places, including all places where notices to employees are cus- 7 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." WILLIAMSBURG STEEL PRODUCTS COMPANY 291 tomarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Second Region, in writ- ing, within 10 days from the date of this Order, what steps the Re- spondent has taken to comply herewith. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT unilaterally change wages, rates of pay, or sick leave, or grant merit increases, or in any similar or related manner refuse to bargain collectively with Architectural and Engineering Guild, Local 66, American Federation of Technical Engineers, AFL-CIO, as the exclusive representative of our employees in the following bargaining unit: All technical engineering employees in the engineering department of our New York operation, including estimators, technical clerks, designers, draftsmen, listers, schedulers, hardware coordinators, methods and/or process engineers, and other technical engineering employees doing similar work regardless of assigned classification, but excluding all other employees, specifically office clerical employees, production employees, salesmen, mechanics, teamsters, guards, and supervisors as defined in the Act. WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours of employment, and other conditions of employment with the Union as the exclusive representative of our employees in the above-described unit. WE WILL, upon request, bargain collectively with the Union as the exclusive representative of all our employees in the above- described unit concerning rates of pay, wages, hours of employ- ment, and other conditions of employment, and embody any agreement reached in a signed contract. BENNE KATZ, ALFRED FINKEL, AND MURRAY KATZ, D/B/A WILLIAMSBURG STEEL PRODUCTS 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. 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge filed April 16, 1957, by the above-named Union, herein called the Union, against the above-named partnership, herein called Respondent, the General Counsel on September 8, 1958, issued a complaint alleging that Respondent 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, 61 Stat. 136, herein called the Act. Respondent, by its answer, denied the commission of any unfair labor practices and pleaded affirmative defenses which will be summarized and considered in later portions of this report. Pursuant to notice, a hearing was held before the duly designated Trial Examiner at New York, New York, between January 28, 1959, and February 6, 1959. The General Counsel and Respondent were represented by counsel, the Charging Union by its representative, and were all afforded full opportunity to examine and cross-examine witnesses, to introduce evidence bearing on the issues, and to file briefs. Respondent's motion to dismiss the proceedings for want of proof made at the close of the testimony, on which ruling was reserved, is now disposed of in accordance with the findings of fact and conclusions of law made below. Since the close of the hearing, briefs have been received from the General Counsel and Respondent and have been duly considered. 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 RESPONDENT Benue Katz, Alfred Finkel, and Murray Katz, are copartners d/b/a Williamsburg Steel Products Company at Brooklyn, New York. where they are engaged in the manufacture, sale, and distribution of hollow metal doors, bucks, and related prod- ucts. During the year preceding the filing of the complaint herein, Respondent, in, the course and conduct of its business operations, caused to be manufactured, sold„ and distributed at said plant products valued in excess of $200,000, of which, products valued in excess of $100,000 were shipped from said plant in interstate- commerce directly to States of the United States other than the State of New York. Respondent admits, and I find , that at all times material herein it has been engaged. in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Architectural and Engineering Guild, Local 66, American Federation of Technical' Engineers, AFL-CIO, herein called the Union, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES Following an election conducted by the Board pursuant to an agreement between, the Union and Respondent, the Union was, on July 5, 1956, certified as collective- bargaining representative of all technical engineering employees of Respondent's engineering department in its New York operation including estimators, technical clerks, designers, draftsmen, listers, schedulers, hardware coordinators, methods and/or process engineers, and other technical engineering employees doing similar work regardless of assigned classification, employed at its plant. Similar separate certifications were issued to the Union by the Board on the same day for similar units of employees at Superior Fire Proof Door and Sash Company, Triangle Steel Products Company, World Steel Products Corp., Pioneer Fire Proof Door Corp., and City Steel Door Corp. All of the employees aforementioned, including Respondent, were at all times material herein members of an association of approxi- mately 25 steel fabricators, manufacturing products similar to each other and known as Hollow Metal Door and Buck Association, Inc., hereinafter referred to as the Association. On July 11, 1956. the Union, by identical letters to Respondent and each of the five other employers where the union had been certified as bargaining representative, asked that arrangements be made as quickly as possible "for either individual or association wide bargaining" and advised that the Union would within 7 or 8 days transmit its proposals for a collective-bargaining agreement The letter noted,, however, that in accordance with "previous discussions and mutual understanding, the wage rates and/or increases shall be negotiated on an individual Employer- basis . . . ... On July 19, the Union sent to Respondent and the five oher employers. WILLIAMSBURG STEEL PRODUCTS COMPANY 293 :a form letter listing a multitude of subjects for collective bargaining but repeating .its position that wage rates and increases were to be negotiated on an individual basis. Receiving no response to these letters , J. L. Raimist, business manager of the Union, "many times" called Sidney O. Raphael, attorney for both the Respondent and the Association, but was unable to arrange a meeting until August 30, 1956, when the first conference was held in Raphael's office. Though subsequent meetings were conducted in 1956 on October 2, 18, and 24, November 1, and December 5, and in 1957 on March 29, April 4 and 11, and May 1 and 13, the parties failed. to reach total agreement and carried on no further negotiations. Though both parties expressed willingness at the last meeting on May 13 to submit their differences to arbitration, they could not agree on the method of arbitration. The Union demanded that the arbitration be conducted under the auspices of the New York State Board of Mediation without cost to the parties, while Respondent insisted that they be conducted by an arbitrator appointed by the American Arbitra- tion Association. Respondent objected to arbitration under auspices of the State Board on the ground, as stated in its brief, that Respondent felt the State Board "could not render the required service in an objective manner since :t had participated to [a] great extent . . . when it attempted to handle this matter by mediation."' The Union's objection to arbitration by the American Arbitration Association was that it was too costly, and could not be afforded by the Union. On May 16, Respondent posted a notice on its bulletin board advising the employees in the unit that negotiations had come to an impasse, that no immediate agreement was in sight, and that Respondent had offered to arbitrate the dispute under the auspices of the American Arbitration Association. Though the notice further stated that its purpose was to advise the employees "of the present status of the situation," it made no mention of the Union's offer to submit to arbitration by the State board. On May 17, the Union wrote Respondent asking for the immediate resumption of negotiations. Respondent replied on May 21 stating its willingness to negotiate, ,or to arbitrate under the American Arbitration Association. Though it was undis- puted that Raimist thereafter had a large number of telephone conversations about continuing the negotiations with Raphael, attorney for Respondent who also repre- sented it at every bargaining conference and at whose offices about half of the bargaining sessions were held, no further meetings were held. On July 13, 1957, Halpern called employee Thibou to his office and told him that management had been working on a company contract "for quite some time" con- taining a pension plan which the Union could not obtain for the men. Halpern told him he had worked out a schedule showing how much each man would receive under the plan based on age, length of service, and salary. At about the same time Halpern also invited employee Langiulli into his office to look at the pension plan. During the conversation with Thibou, Halpern told him that the contract which the Union had negotiated with Pioneer was not so good as the one Respondent was ready to offer. On this and "various" other occasions, Halpern cautioned Thibou that he did not want these matters "to get around to the rest of the men until the situation was actually right for the information to be spread around." All this occurred at a time when Halpern, according to his own admission, "was well aware of considerable dissension and controversy among employees in the engineering department over union matters, . . . that the employees were breaking up into two factions, and that he had heard a rumor being circulated that the Board's certification "of the Union was no longer effective." During the last week in July 1957, Halpern "knew that the dissension among the employees had reached a point where they were going to do something about it during that week, at the coffee break, which . . . runs normally for 10 to 15 minutes at 4 p.m." About the same time, the latter part of July, 40 to 50 employees in the bargaining unit held a meeting in Respondent's drafting room. The meeting was convened at 4 p.m. and lasted, according to the estimate of several witnesses, from 1 to 2 hours. Working hours at that time were from 8 a in. to 4:30 p in. but the men "normally" worked overtime to 5:30. Though Halpern was aware of the meeting, his office being nearby and though he normally limited the coffee break to a relatively short period, he took no action to return the men to work before the meeting adjourned. Employee T. Sneed, Jr, testified that he "believed" he was paid for the time he was in attendance at the meeting, while several others testified that they punched out after the meeting was concluded. Based on this testimony, and there being no denial 'A number of the meetings between the parties were conducted at the offices of the State board and had been presided over by Howard Gamier, a mediator in the employ of that board 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereof, it may reasonably be inferred that the men were in fact paid for this attendance at the meeting. Herbert Jacobson, then a coordinator and staff assistant to Halpern,2 assisted in notifying employees of the meeting which was called "basically . . . [to] do away with [the Union] as the bargaining agent" because the men felt they "could do a better job [themselves] than . the Union had done." Also in attendance was Supervisor Edward Wisniewski, chief draftsman. Jacobson read a proposed contract to be presented to Respondent and explained the procedure for decertifying the Union which, he explained, required the resignation of the employees from the Union. By a vote of 20 to 15 the men decided to present the proposed contract to Respondent and to proceed with the decertification of the Union. Having previous to the vote agreed to abide by the vote of the majority, all employees in attendance at the meeting signed documents to decertify the Union, and to withdraw their membership therefrom. Shortly after this meeting, in August 1957, Respondent granted liberal wage increases to practically every employee in the unit, increases which exceeded those offered by Respondent to the Union in the previous May. The complaint, as amended at the hearing, alleges that Respondent violated its statutory duty to bargain collectively with the Union "in that" it engaged in the following misconduct: (a) Unilaterally changing sick leave. (b) Unilaterally changing wage rates. (c) Bargaining directly and individually with employees concerning wages and other terms and conditions of employment 3 (d) Aiding and assisting employees to repudiate the Union. (e) Publicizing, sponsoring, permitting, attending and participating in meet- ings on its premises of employees in derogation of the Union's representative status. (f) Unilaterally granting merit increases. It is the foregoing specified conduct, and nothing more, which paragraphs 10 and 12 of the complaint plead as the conduct claimed to be violative of Section 8(a)(5) and (1) of the Act. In that state of the record, I have concluded that it would serve no useful purpose to make more detailed findings as to all the areas of agree- ment or disagreement reached by the parties during their negotiations but to turn instead to immediate consideration of the testimony pertaining to the specific mis- conduct alleged in the complaint. Merit increases for employees in the unit was one of the subjects which the Union specifically proposed as a subject of collective bargaining in its proposals submitted to Respondent on or about July 19, 1956. Raimist testified that at the first meeting on August 30, it was "definitely established that there would be a joint review of merits," but that the details would be worked out at later meetings. Alfred Finkel, the Respondent partner in charge of its labor relations and who participated in all the meetings, testified that the subject was merely mentioned at the meetings on August 30 and October 2 and 10, 1956, but that the parties agreed on each of those dates to postpone negotiating thereon until a later date. Notwithstanding the pend- ency of future negotiations, Respondent, in October 1956, unilaterally granted 34 merit increases; 20 similar merit increases were unilaterally granted in January 1957. The evidence is undisputed that these merit increases were all granted without notice to, or negotiation with, the Union. The evidence also establishes conclusively that Raimist vigorously protested this conduct at a number of the bargaining ses- sions as conduct tending "to destroy the bargaining unit and . the Union." 4 On or about March 11, 1957, while negotiations with the Union were in progress„ Respondent notified the employees in the bargaining unit, and its office personnel, that it was making a substantial change in its sick-leave policy and that the change would be retroactive to January 1, 1957. Sick leave had been the subject of dis- 2 At the time of the hearing, Jacobson was in charge of production control. 8 In response to a motion for a bill of particulars, the General Counsel stated that this allegation referred to the unilateral change of wage rates mentioned in (b) immediately above. * It is no defense that Respondent was allegedly merely following an established prac- tice of quarterly reviewing the merit of its employees for "it is now beyond dispute that an employer is under a duty to bargain with the representative of its employees with respect to individual merit increases ." General Controls Co., 88 NLRB 1341 , citing NL.R.B. v. J. H. Allison & Company, 165 F. 2d 766 (C.A. 6), cert. denied 335 U.S. 814, rehearing denied 335 U.S 905; see also Armstrong Cork Company v. N.L.R.B., 211 F. 2d 843 (C.A. 5). WILLIAMSBURG STEEL PRODUCTS COMPANY 295 , cussion between the parties at three conferences prior to March 11, 1957, but no agreement had been reached thereon. The change was imposed without notice to the Union and was the subject of a vigorous letter of protest by the Union on March 15. In reply thereto, Respondent stated its position frankly, albeit mis- takenly, that it did "not feel obligated to explain the matter to [the Union] or anyone else until an agreement has been reached between" the parties In April 1957, Ernst Halpern, chief draftsman and supervisor of the employees in the bargaining unit,5 announced to those employees "that henceforth an automatic wage increase system would be in operation from them as follows: Up to $74.99 per week-automatic increase of $5 per week every 3 months, from $75 to $90 per week-automatic increase of $5 per week every 6 months; over $90 per week- merit increases review every 6 months, raises to be granted in management's discre- tion on a merit basis." These increases were announced without notice to, or consultation with, the Union and were substantially better than what Respondent had previously offered the Union. They were thereafter, with slight modification, put into effect. The foregoing findings that Respondent unilaterally granted merit increases, unilaterally changed its sick-leave policy and wage rates, all without notice to, or negotiations with, the Union, are based on undisputed evidence. Indeed the testi- mony establishing that conduct was given by Finkel, Halpern, one of Respondent's top supervisors, and by Respondent's own records. At the hearing, and in its brief, Respondent defended its action aforementioned on the ground that the Union conducted the negotiations in such an "untoward . . . and intemperate" manner as to create an impasse thereby so "alienat[ing] its own members [that it] ceased to be their bargaining representative." Based on the foregoing premise, Respondent further contends that "in the face of the Union's attitude and the impasse created thereby, the Respondents were authorized to give directly to their employees . the various wage and salary revisions . . . [which] followed an historical pattern " The only reason ascribed for the unilateral change of the sick-leave policy was that Respondent deemed the change to be in the best interests of Respondent and its employees. I find this entire defense to be without merit. In the argument in support of its defense, Respondent places greatest emphasis on (1) alleged shifting of positions by the Union from individual bargaining with Re- spondent to associationwide bargaining, and (2) to the alleged insistence by the Union that Respondent had to accept a contract similar to the one that the Union had successfully negotiated with Aetna Steel Products Corporation, also a member of the Association, and containing a "favored nations clause" which Respondent contends "presented an impassable barrier to further negotiations with the Re- spondent and other employers." As to (1), the record clearly establishes that the Union was willing throughout the entire negotiations, as a matter of convenience to all the employers and the Union, to bargain on an associationwide basis on all terms and conditions of em- ployment except wages, but demanded, as it had a right to demand, that the latter subject be negotiated separately with Respondent. It was Respondent who, though first agreeing to that division of subjects, shifted its position. As to (2), dealing with the effect of the Aetna agreement on the negotiations be- tween the parties, it should be noted at the outset that this contract was first con- sidered in the negotiations on March 29, 1957, long after the unilateral merit in- creases of October 1956, January 1957, and the unilateral change of sick leave on March 11. Nor is there any merit to the argument that the "favored nations clause" in the Aetna agreement presented "an impassable barrier to further negotiations, with Respondent." That clause read as follows: ARTICLE XXV-MOST FAVORED NATIONS CLAUSE Anything to the contrary notwithstanding, no other Employer in the Hollow Metal Door & Buck Industry shall be accorded terms and condition in a collec- tive bargaining agreement which are more favorable than those contained herein; including classifications and minimum rates of pay. The foregoing how- over, shall not apply to general wage increases and rate of pay. The clause did not, as Respondent contends, make it impossible for the Union to conclude an agreement with Respondent, or any other employer, on terms or con- ditions of employment other than, or more favorable to the employers than, those contained in the Aetna agreement. Its only effect might be, as Raimist explained at the conferences, to create a problem for the Union with the employees at Aetna 5 At the time of the hearing, Halpern was shop superintendent and plant manager, 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whose working conditions might be worsened if other employers were given more favorable terms,s In any event, the record establishes that the parties continued to negotiate for approximately 6 weeks after the Union proposed the Aetna contract as a format or pattern on March 29. Rather than demonstrating bad-faith bargaining by the Union, the entire record compels the conclusion that it was Respondent's conduct which brought the nego- tiations to naught. Thus, Respondent's unilateral action heretofore found, "while negotiations were still continuing, and in complete disregard of the Union's status, provides the final insight into Respondent's conduct of the negotiations with the Union. It clearly shows that . . . Respondent was merely going through the motions of collective bargaining without a genuine intention of trying to negotiate an agreement with the Union as required by the provisions of the Act? On the entire record I find and conclude that by taking the unilateral action above found before any claimed impasse was reached,8 and while negotiations were pending, Respondent did so in clear disregard of its obligation to bargain with the Union as the exclusive bargaining representative of its employees, and thereby undermined the authority which the Act bestowed upon the Union. By that conduct, Respondent violated Section 8(a)(1) and (5) of the Act. Medo Photo Supply Corporation v N.L R.B., 321 U.S. 678, 683-684; May Department Stores d/b/a Famous-Barr Company v. N.L.R.B., 326 U.S. 376; N.L.R.B. v. Crompton-Highland Mills, Inc., 337 U.S. 217. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES The activities of Respondent set forth in section III, above, occurring in connec- tion with its operations described 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 Respondent has engaged in and is engaging in certain unfair labor practices affecting commerce, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has failed to perform its obligation to bargain in good faith with the Union, it will be recommended that upon request Respondent bargain in good faith with that organization. The withdrawal of membership from the Union by the employees in the latter part of July 1957, can have no effect on the portion of the remedy just recommended. The Board has consistently held, with Supreme Court approval,9 "that the only means by which a refusal to bargain can be remedied is an affirmative order requiring the employer to bargain with the Union which represented a majority at the time the unfair labor practice was com- mitted." Frank Bros. Company, et al., 44 NLRB 898, 917; Poultry Enterprises, Inc, 102 NLRB 211, enfd. 207 F. 2d 522 (C.A. 5). Here, the unfair labor practices of which Respondent has been found guilty were committed within the year following the Board's certification and at a time when the Union was the unchallenged exclusive bargaining representative of its employees. "Out of its wide experience, the Board many times has expressed the view that the unlawful refusal to bargain collectively with the employees' chosen representative disrupts the employees' morale, deters their organizational activities and discourages their membership in unions . The Board's study of this problem has led it to con- clude that, for these reasons, a requirement that union membership be kept intact . . . would result in permitting employers to profit from their own refusal to bargain." 10 6 After the execution of the Aetna contract, the Union entered into individual contracts on less favorable terms to the Union and the employees at Pioneer Fire Proof Door Corp , Triangle Steel Products Co , Inc, and City Steel Door Corp 7 Fant Milling Company, 117 NLRB 1277, 1282 enforcement denied on another ground in 258 F. 2d 851 (C.A 5), which decision was, however, reversed by the Supreme Court on June 15, 1959, 360 U S. 301. 8 Even assuming "the existence of an Impasse, the legal rights inherent in this situation depend upon whether or not such impasse was reached as the result of bona fide collective bargaining. See N.L.R B v. Andrew Jergens Co , 175 F 2d 130 (C A 9, 1949) " Reed & Prince Manufacturing Company, 96 NLRB 850. 9 Franks Bros . Company et at v N.L R.B., 321 U.S 702. 10 Ibid. LOCAL UNION 522, LUMBER DRIVERS, ETC. 297 The foregoing rationale also requires rejection of Respondent 's affirmative defense that because of the lapse of time this proceeding has become moot or barred by laches. "Respondent cannot take advantage of the Board's delay in order to relieve itself of making amends for its unfair practices ." N.L.R.B. v. Andrew Jergens Company, 175 F. 2d 130 (C.A. 9), cert. denied 338 U.S. 827. 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. Architectural and Engineering Guild, Local 66, American Federation of Tech- nical Engineers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. All technical engineering employees of Respondent's engineering department in its New York operation including estimators, technical clerks, designers, drafts- men, linters, schedulers, hardware coordinators , methods and/or process engineers, and other technical engineering employees doing similar work regardless of assigned classifications employed at its plant, excluding all other employees, specifically office clerical employees, production employees, salesmen, mechanics, teamsters, guards, and supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. On and since July 5, 1956, the Union was, and presently is, the majority repre- sentative of the employees in the above-described appropriate unit for purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. 4. By failing to perform its obligation to bargain in good faith with the Union in October 1956, and thereafter, Respondent has engaged in and is engaging .in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 5. By unilaterally granting merit increases in October 1956 and in January 1957, by unilaterf ` hanging its sick-leave policy on or about March 11, 1957, and by uni- laterally granting wage increases in April 1957, Respondent interfered with, re- strained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)( I) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Local Union 522, Lumber Drivers, Warehousemen & Handlers, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America and Mach Lumber Company. Case No. 22-CC-1. January 06, 1960 DECISION AND ORDER On October 23, 1959, Trial Examiner David London 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 Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman Leedom and Members Bean and Jenkins.] The Board has reviewed the rulings of the Trial Examiner made 126 NLRB No. 41.