Deeco, Inc.

666' DECISIONS OF NATIONAL LABOR RELATIONS BOARD aging membership in and activity on behalf of the above-named labor organization,. the Respondent has engaged in and is'engaging in unfair labor practices, within the meaning of Section 8(a)(3) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed by Section 7 -of the Act, the Respondent has- engaged in and is, engaging in unfair labor practices within the meaning of Section -8 (a) (1) of the Act. 4, The aforesaid unfair labor practices are unfair labor practices affecting com- me-ce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Deeco, Inc. and Local 976, International Union, Allied Industrial' Workers of America, AFL-CIO. Case No. 21-rCA-37 0. May 9,. 1960 DECISION AND ORDER On January 25,1960, Trial Examiner William E. Spencer issued his- Intermediate Report in the above-entitled proceeding, finding, that the Respondent had not engaged in and was not engaging in the unfair' labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Coun- sel filed exceptions to the Intermediate Report, together with a sup-- porting brief. The Board 1 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 Interme- diate Report, the exceptions and brief, and the entire record in the case, and finds merit in certain of the General Counsel's exceptions. Ac- cordingly, the Board adopts the findings, conclusions, and recommen dations of the Trial Examiner, with the modification set forth below.: As set forth more fully in the Intermediate Report, the Respondent, had had collective-bargaining agreements with the Union since 19568 and, since October 1958, Wilbur E. Harwell had been the Union's au- thorized representative in its dealing with the Respondent. In March, 1959 Harwell had requested a seniority list, but Julius Feldhorn, the Respondent's president, had been dilatory in furbishing it because Ofl the pressure of business. After being put off for over 5 months, Har' well was promised that the list would be ready on September 8. When. Harwell arrived at the plant on that date, however, he was informed that Feldhorn was out, and Respondent's acting comptroller, E. M. Pashkow, knew nothing about the seniority list. At this point, Hai-' well accused Feldhorn of giving him the "run around" and of being a liar; Harwell then left without seeing Feldhorn or the seniority list. 'Pursuant to the provisions of Seetion3(b) of the Act, the Board has delegated, its. powers in connection with. this case to a three-member panel [Members Rodgers, Bean= and Fanning]. 127 NLRB No. 86. DEECO, INC. 667 A week later, Harwell again came to Feldhorn's office, at which time Feldhorn announced that, because of the aforementioned remarks, he would no longer deal with Harwell, although he would deal with any other representative of the Union 2 Feldhorn sent a letter to this effect to the Union and thereafter did, in fact, refuse to deal with Harwell. The Trial Examiner found that Harwell's conduct justified Feld- horn's refusal to deal with him and, therefore, that there was no viola-' tion of the Act. We do not agree. It is well settled that an employer may not dictate to a union its selection of agents or representatives.3 It has been held that an em- ployer was justified in refusing to meet with a union representative who had expressed both bitter hostility to the employer and a desire to destroy the employer financially, because such an attitude on the part of the representative made any attempt at good-faith bargaining a futility.4 Such, however, is not the case here. Harwell was not hostile to the Respondent. His outburst against Feldhorn appears to have resulted from nothing more than momentary irritation at Feld- horn's procrastination in complying with a legitimate request for a seniority list. Although we do not condone Harwell's conduct, we do not believe that it reflects such underlying hostility to the Respondent as to make collective bargaining between the Respondent and Harwell a futility. Accordingly, we find that Feldhorn was not justified in refusing to deal with Harwell as the duly designated representative of the Union and that, by such refusal, the Respondent violated Section 8 (a.) (5) and (1) of the Act.' THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occurring in con- nection with the operations of the Respondent, 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 ob- structing commerce and the free flow of commerce. THE REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices, we shall require it to cease and desist therefrom and to take certain affirmative action designed to effectuate' the policies of the Act. 2Feldhorn also refused to give the seniority list to Harwell , giving it instead to em-, ployee Walter Rodriguez , the Union's plant committeeman , who had accompanied Harwell. D See, e.g., The Prudential Insurance Company of America, 124 NLRB 1390, enfd. as modified 278 F. 2d 181 (C A. 3). 4N.L.R.B. v. Kentucky Utilities Company, Inc., 182 F. 2d 810 (C.A 6). 5Roscoe Skipper, Inc., 106 NLRB 1238, enforcement granted 213 F. 2d 793 (C.A. 5) American Laundry Machinery Company, 76 NLRB 981 , enforcement granted 174 F. 2d 124 (C.A 6). 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Deeco, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 976, International Union, Allied Industrial Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing to deal with the duly authorized representative of the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section (a)8(5) and (1) of the Act. 4. The Respondent did not violate Section 8(a) (5) and (1) except as found in conclusion numbered 3, above. 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 Respondent, Deeco, Inc., Huntington Park, California, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Local 976, International Union, Allied Industrial Workers of America, AFL-CIO, as the exclusive bargaining representative of its employees in the appropri- ate unit concerning rates of pay, wages, hours of employment, and other terms and conditions of employment, by refusing to meet with Wilbur E. Harwell, or any other duly authorized representative of the aforesaid Union. The following unit of employees is appropriate for collective bargaining: All production and maintenance employees at the Respondent's Huntington Park, California, plant, including shipping and re- ceiving employees and truckdrivers, but excluding plant clerical employees, office clerical employees, guards, watchmen, profes- sional employees, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the aforesaid Union, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, and to refrain from any and 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 DEECO, INC. 669 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. 'Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, meet, deal, and bargain collectively with the duly authorized representative of Local 976, International Union, Allied Industrial Workers of America, AFL-CIO, the exclusive bar- gaining representative of its employees in the appropriate unit. (b) Post at its plant in Huntington Park, California, copies of the notice attached hereto marked "Appendix." 6 Copies of such no- tice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by its authorized representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are cus- tomarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Twenty-first Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply therewith. 0 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 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 NOT refuse to bargain collectively with Local 976, International Union, Allied Industrial Workers of America, AFL-CIO, as the exclusive bargaining representative of our employees in the appropriate unit concerning rates of pay, wages, hours of employment, and other terms and conditions of employ- ment, by refusing to meet with Wilbur E. Harwell or any other. duly authorized representative of the aforesaid Union. The fol- lowing unit of employees is appropriate for collective bargaining: All production and maintenance employees at our Hunting- ton Park, California, plant, including shipping and receiv- ing employees and truckdrivers, but excluding plant clerical employees, office clerical employees, guards, watchmen, pro- fessional employees, and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the right to 670 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD - self-organization, to form labor organizations, to join or assist the aforesaid Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, and to refrain from any and 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, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL upon request, meet, deal, and bargain collectively with the duly authorized representative of Local 976, International Union, Allied Industrial Workers of America, AFL-CIO, the exclusive bargaining representative of our employees in the ap- propriate unit. All our employees are free to become, to remain, or to refrain from becoming or remaining, members of the above-named labor organiza- tion, or any other labor organization. DEECO, INC., 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 This proceeding was heard before the duly designated Trial Examiner of the National Labor Relations Board, herein called the Board, in Los Angeles, Cali- fornia, November 16, 1959, on the complaint of the General Counsel of the Board and answer of Deeco, Inc., herein called the Respondent. The issues litigated were whether the Respondent violated Section 8(a)(1) and (5) of the National Labor Relations Act, 61 Stat. 136, herein called the Act, by refusing to baigain in good faith with Local 976, International Union, Allied Industrial Workers of America, AFL-CIO, herein called the Union, the duly designated representative of Respond- ent's employees in an appropriate unit; and 8(a) (1) of the Act, by making coercive Statements. The General Counsel and the Respondent filed briefs. 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 Deeco, Inc., a California corporation, with its principal office and place of business in Huntington Park, California, is engaged in the manufacture of aluminum patio furniture. In the course of a representative 12-month period, it shipped products valued in excess of $50,000 directly to points outside the State of California. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act, admitting to membership production and maintenance employees of the Respondent at its Hunt- ington Park plant. DEECO, INC. III. THE UNFAIR LABOR PRACTICES 671 A. The determinative facts' On August 24, 1956, the Union was certified by the Board as bargaining repre- sentative in the following unit found by the Board and found herein to be appropriate: All production and maintenance employees of the Respondent at its Huntington Park, California, plant, including shipping and receiving employees and truckdrivers, but excluding plant clerical employees, office clerical employees, guards, watchmen, professional employees, and supervisors. In the fall of 1956 Respondent and the Union executed a collective-bargaining agreement, and on October 1, 1958, entered into a new agreement which by its terms is effective until October 1, 1960, subject to reopening on wages 60 days prior to October 1, 1959. Pursuant to the terms of this agreement, all of Respond- ent's employees in the appropriate unit are members of the Union, and there is a checkoff of dues. There is no question therefore that the Union was at all times material herein and continues to be the duly certified representative of Respondent's employees in the aforestated appropriate unit.' Since October 1, 1958, Wilbur E. Harwell has been the Union's duly authorized representative in its dealings with the Respondent, and on several occasions prior to September 16, 1959, Respondent's president, Julius Feldhorn, met and dealt with Harwell as such representative. According to Harwell, in March 1959 he requested that Feldhorn supply him with a seniority list, and was told by the latter that his clerical force was extremely busy at that time and that the seniority list would be furnished sometime in July. Further according to Harwell, he attempted to see Feldhorn relative to the list in July but was unsuccessful, and on meeting with Feldhorn about August 9 was told by the latter that the list would be sent to the Union's office the following week. The list was not sent and again in August Harwell attempted to but failed to obtain the list. About September 3 he was promised the list would be furnished him on September 8. On September 8 Harwell went to the plant to get the list and was advised that Feldhorn was out. Accompanied by employee Walter Y. Rodriguez, the Union's plant committeeman, he saw Respondent's employee and acting comptroller, E. M. Pashkow, in the latter's office. Harwell asked Pashkow if he knew anything about the seniority list and on being informed by the latter that he did not, Harwell said that he had set up several meetings with Feldhorn but Feldhorn was never in and it seemed Feldhorn did not want to see him; that Feldhorn was giving him the "run around"; that Feldhorn "wasn't a man of his word, and that he was always lying to him." In this same context, Harwell directed Pashkow to send in the checked off union dues? On September 16 Harwell, again accompanied by Rodriguez, met with Feldhorn in the latter's office. Feldhorn stated that he had three things to say: (1) that Harwell was late in keeping his appointment; (2) that he would no longer permit Harwell the freedom of the plant for consulting with the Union's committeemen or foremen-a courtesy previously extended for "settling things," presumably griev- ances of a minor nature; and (3) that he would no longer negotiate with Harwell as the Union's representative. Concerning this last, he told Harwell that he would write a letter to the Union expressing his unwillingness to have further dealings with Harwell. Harwell replied, in effect, that he did not believe that Feldhorn would write such a letter. Feldhorn declined to give Harwell the requested seniority list but did give it to Rodriguez. By letter dated September 16, 1959, Feldhorn advised the Union: I have the unpleasant duty to inform you that I do not wish to have any dealings nor am I in a position to negotiate any kind of Union business with your Mr. Wilbur Harwell. Mr. Harwell found it necessary to make slandering and insulting remarks about me personally to some of my employees while I was absent from my office one day last week. 'There has been some variation in the title of the Union since Its certification but its Identity as a labor organization has remained unchanged 2 These findings are based on the testimony of Rodriguez, first called as a witness by the General Counsel and later examined by the Respondent Pashkow's testimony was substantially the same Harwell 'testified but did not deny having made any of these statements attributed to him. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under these circumstances, you will understand that negotiations between Mr. Harwell and our Company cannot result in fruitful arrangements for either one of us. I assure you that any other delegate of your Union will be accepted here, with the greatest of courtesy and pending business matters will be taken up, with a desire to achieve pleasing results. On September 11 by notice posted on bulletin boards in the plant, the Respondent notified its employees that beginning the following week the employees would work only 3 days a week. This represented a substantial cut in the workweek. The Union was not given advance notice of the cut nor in any way consulted in the matter. Of the 24 employees then employed by Respondent, all but 5 had their workweek cut pursuant to this notice, but after I week the full normal working schedule was resumed for all employees. On July 28 the Union had notified Respondent that the Union wished to reopen the contract with respect to wages, and at the meeting with Harwell and Rodriguez on September 16, the matter of the reduction in the workweek was broached. Ac- cording to Harwell and Rodriguez, Feldhorn said that he had reduced the workweek because of Harwell and that if Harwell was still around when the contract ended he, Feldhorn, would get another union in the plant. Feldhorn denied that he made the statement that the workweek had been cut because of Harwell. Both he and Pashkow testified that the cut was made because it was the slack season and not enough orders were on hand to provide a full workweek for all employees; that when new orders were received the full workweek was promptly resumed. B. Analysis; concluding findings on the refusal to bargain 1. The refusal to negotiate with Harwell It is appropriate to note, as background, that there is no evidence of antiunion bias on the part of this Respondent. Feldhorn, with understandable and commend- able pride, referred to the fact that all of the several branches of Deeco, Inc., in widely separated parts of the Nation, were unionized, with existing amicable union-management relationships, and that at no prior time had there been a charge of unfair labor practices filed against any of them. His own dealings with the Union had borne fruit in two collective-bargaining contracts, and prior to the inci- dents here related there is no history of conflict between his Employer and this labor organization. Feldhorn's September 16 letter to the Union invites continued nego- tiations with the Union through some representative other than Harwell. Feldhorn's failure to furnish the Union with a seniority list for a period of months indicates at the least a dilatoriness in meeting the reasonable requests of the Union's, representative. It is borne in mind, however, that Harwell, who testified that he first made the request for the list in March 1959, acquiesced in a delay until sometime in July. It must be inferred that there was very little urgency behind the Union's, request or that it was exceptionally generous and considerate. Nevertheless, the seniority lists promised for July were not actually furnished until early September„ and this delay was no doubt provocative. It is not likely, however, that the Union's representative was unaware that the summer of 1959 was one of economic hardship for this employer, its worst season economically since 1955. There is little doubt that Feldhorn was harassed with business worries and very busy. I am; convinced that he did not deliberately avoid meetings with Harwell or give him the "run around." This record affords no foundation for an inference that Feldhorn had any objection to the Union's receiving such a list, or questioned its right to obtain it In fact, this record affords no clue as to why Feldhorn would not want to meet with Harwell and surrender the seniority list to him, unless we are supposed to infer this from a letter dated July 28, 1959, in which Harwell informed Feldhorn that the Union wished to negotiate a change in the existing wage supplement to the bargaining agreement. Aside from the fact that this appears to have nothing to do with the furnishing of a seniority list, Feldhorn in his September 16 letter to the Union makes it clear that while ruling out further dealings with Harwell he is continuing to recognize the representative character of the Union and is receptive to negotiations with it on "pending business matters." This is inconsistent with any inferences that he was avoiding meetings with Harwell because of the Union's July- 28 wage re-negotiation notice. As to the September 8 incident, Harwell testified that he had an appointment to meet with Feldhorn at 10 o'clock that morning; Feldhorn testified that the appoint- ment was for no certain time other than "early in the morning." According to him he waited for Harwell and when the latter did not arrive, absented himself from the plant for but a short time, and on returning was surprised to find that Harwell had DEECO, INC. 673 called and left. There is no reason to doubt his testimony that the seniority list had been prepared and was on Feldhorn's desk, and that had Harwell exercised a little patience, or called back later, he would have received it on that date. Instead, he blew his top, in the presence of Feldhorn's employees but not of Feldhorn, accusing the latter of giving him the run around and "always lying to him." I find that it was solely because of these abusive statements and the fact that they were made on Respondent's premises in the presence of employees but outside the presence of Feldhorn, that Feldhorn refused on September 16, and thereafter to negotiate with the Union through Harwell. The issue on this point therefore is pre- cise and narrow: did Harwell's conduct justify Respondent's refusal to negotiate further with him. Nothing is more firmly settled in the decisions than that one bargaining principal may not dictate to his opposite what person the latter shall name as his negotiator. This is a corollary or supplementation of the Act's mandate that employees shall be free to bargain through representatives of their own choosing. But the statement of this broad and settled principle does not quite dispose of our problem. A simple illus- tration will suffice to show that it is just as elementary that a bargaining principal is not in every case and under all circumstances required to negotiate with the person or persons named to represent his opposite. Had Harwell while in Respondent's plant on September 8 addressed Respondent's employees in inflammatory terms and threatened to inflict bodily harm on Feldhorn if the seniority lists were not forth- coming, I think neither this Board nor any court would have required Feldhorn thereafter to meet with him as the Union's negotiator. Of course Harwell did not go that far; he merely called Feldhorn a run-around artist and a habitual liar. Aside from the fact that I am convinced that Feldhorn was neither, and assuming provocation, Harwell was not without orderly means for registering his protest and obtaining the desired results. He might have filed a grievance under the machinery provided by the Union's contract, or, inasmuch as the Union was entitled to the lists as a matter of law, he might have filed a charge with this Agency because of the unreasonable delay in their submission. Harwell is a literate, polished, and knowl- edgeable individual. Could his abusive language be attributed to a mere outburst of temper, a momentary letting off of steam, Feldhorn's refusal to negotiate with him thereafter might be viewed with scepticism; but Harwell compounded his abusive conduct when next meeting with Feldhorn by refusing to apologize for his intem- perate statements made outside Feldhorn's presence and, in effect, again questioning Feldhorn's veracity when Feldhorn said he would write a letter to the Union in explanation of his refusal further to negotiate with Harwell. I realize that being called a run-around artist and habitual liar may have different degrees of gravity to different people, and that there is no way to set an absolute standard to apply in all cases. I have always thought that considerable latitude should be allowed in verbal exchanges which occur during bargaining sessions. A letting off of steam in violent or profane language can produce salutary results, and, after all, we are not Emily Posts of the bargaining table. There is no requirement that I know of that bargaining sessions be conducted with the decorum and civility of an eighteenth century drawing room. But even in bargaining conferences I would suppose that there are limits to the abuse which any party is required to take at the hands of opposing negotiators. I think it is a more serious thing when a union representative, outside the bargaining room and in the absence of the employer but on the employer's premises, makes abusive statements in the presence of the latter's employees. Here there were only two employees, but two or a dozen makes no difference for, in this respect, what is the property of one soon becomes the property of all. Under the circumstances of this case, had Feldhorn condoned Harwell's conduct-and he would have condoned it if he continued to deal with Harwell in the face of the latter's continued contemptuous attitude-he could reasonably expect that the next time Harwell felt provoked, justifiably or not, he might again, outside Feldhorn's presence but in the presence of his employees and on Respondent's premises, engage in verbal attacks on Respondent's president, in like or more offen- sive terms. This obviously could lead to a serious breach in plant discipline. I think it was a chance the Respondent was not required to take.3 It is equally true that if 3 Kentucky Utilities Company, Inc., 76 NLRB 845, 846-847, en1fd. as mod 182 F 2d 810 (C.A 6) ; American Laundry Machinery Go, 76 NLRB 981, 982-983, enfd 174 F. 2d 124 (CA. 6), cited by the General Counsel as authority on the point, do not present factual situations comparable to the one with which we are confronted ; in neither case did the union representative engage in overt action or make statements which if con- doned held the potentiality of a disruption of plant discipline. 560940-61-vol. 127--44 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we condone Harwell's conduct-and we condone it if we find a violation of the Act based on Feldhorn's refusal to negotiate with him because of it-we thereby invite its repetition in like or more violent form. This I think we should not do.4 Accord- ingly, I shall recommend dismissal of the complaint insofar as it alleges a refusal to bargain because of Feldhorn's refusal to negotiate with Harwell on and after Sep- tember 16, 1959. 2. The change in the workweek Turning now to the second phase of the General Counsel's two pronged attack, it, too, has the appearance of absolute authority, for once his employees have chosen a bargaining representative the employer may not thereafter unilaterally change their rates of pay, hours of work, or working conditions. The decisions on this point are too numerous and long standing to require citation. And it'is undisputed that during a single week in September, the Respondent did reduce the working time of all but 5 of its 24 employees, without notice to or consultation with the Union. Again, ,however, the problem is not quite so elementary as it seems. Not every employer act materially affecting the wages, hours, and working conditions of his employees, taken without notice to their bargaining representative, is unlawful. There may be in existence a bargaining agreement which allows for the exercise of employer discretion in such matters; or the practice of the parties under the contract may be such as to raise an inference that the bargaining representative has waived notice and consultation. Under such circumstances, the employer's action is not actually unilateral and, accordingly, the rule governing unilateral acts does not apply. Here we have an employer whose business admittedly is seasonal. From a maxi- mum of some 140 employees at the season's peak, ordinarily occurring about July, employment may drop to some 20 to 25 during the slack season beginning about August or September. Possibly it is because of the seasonal character of Respondent's business that its contract with the Union does not define the workweek in terms of hours other than to provide that the "normal workweek shall consist of not more than forty (40) hours worked on five (5) consecutive days, Monday through Friday." [Emphasis supplied.] Obviously this ceiling is set on the "normal workweek" in order to provide for and regulate overtime pay. And there is no violation of this clause if the workweek consists of less than 40 hours, or less than 5 consecutive days. True, there is no provision in the contract which explicitly authorizes the Respondent to reduce the workweek below 40 hours and 5 consecutive days at its discretion, but the omission of any mention of the minimum number of hours required to constitute a normal workweek, considered in the light of the nature of Respondent's business, would appear to allow for the exercise of the Respondent's discretion. Certainly, this was the Respondent's understanding of its rights under the contract and there is no evidence whatever that the Union held a contrary view at the time the contract was negotiated and signed. As to the practice of the parties under the contract, it was Feldhorn's testimony that at times in the past the workweek has been reduced below 40 hours without notice to the Union, and without protest from the Union. He was unable to place the date of such action with sufficient specificity to give his testimony on this point much weight, but there can be no doubt that in the reduction of its work force from some 140 to some 20-odd employees during the slack season, the Respondent has acted without notice to or consultation with the Union. Harwell testified that prior to Sep- tember 1959 no reduction in the 40-hour workweek had been made, but his testimony covers only the period beginning October 1, 1958, when he was first designated to deal with the Respondent as the Union's negotiator, and there may have been no occasion for a reduced workweek during this period. In any event, Harwell did not participate in the negotiation of this or the prior contract and therefore was in no position to testify on the understanding of the parties at the time of their execution. In all, I am unable to say that Feldhorn's understanding that he was free to vary the working hours of his employees below the ceiling set in the contract, as required by Respondent's economic situation, was not reasonably based on the understanding of the parties at the time the contract was negotiated and their practice under this and the prior contract. No contention is made that the reduction in the workweek here complained of was made on a discriminatory basis, and I understood at the hearing and infer from his brief that the General Counsel concedes that it was economically motivated. In any 4 This is not to say that Feldhorn would be justified in continuing to refuse to negotiate with Harwell upon representations by the Union and Harwell reasonably safeguarding Respondent against a repetition of the September 8 incident. We do not have that situa- tion before us, and a decision here cannot properly embrace such a situation. _ DEECO, INC. 675 event, I am convinced that it was. Both Feldhorn and Pashkow testified that the re- duction was made because there were not on hand enough orders to enable the Re- spondent to meet a payroll of 24 employees for a 40-hour week, and I credit them. Admittedly 1959 was a season of economic distress for this employer. New orders being received, the full 40-hour week was restored to all employees after the 1 week. In reaching this conclusion of economic motivation, I have taken into account the testimony of Harwell and Rodriguez that during the meeting of September 16 Feld- horn stated that he had ordered the reduction because of Harwell and that if Harwell remained the Union's negotiator he would get a new union in the plant when his cur- rent contract expired. Feldhorn emphatically denied that he made the statement with respect to the reduction in the workweek, though admitting that he may have made remarks from which Harwell and Rodriguez drew the conclusions represented by their testimony. 1 shall notice these matters in more detail in the section of this report below, and allude to them here merely to indicate that the statements if made do not alter my finding and conclusion that the reduction in the workweek actually was solely and wholly because of economic factors. If the Union wishes to be noticed and consulted with respect to any changes in the "normal work week" below the ceiling set in the contract, absent contractual commitments to the contrary I think it is entitled to this as the bargaining represen- tative of Respondent's employees. The circumstances of this case are such, however, that I think it should at least put this Respondent on notice that it desires and re- quires consultation in the matter. Having no reason to doubt that the Respondent's understanding of its rights under the contract in this matter, was actually the under- standing and practice of the parties at all times prior to September 1959 I am dis- posed to find that no violation of the duty to bargain has here been established by a predominance of the material evidence and, accordingly, shall recommend dis- missal of this allegation of the complaint. C. Interference, restraint, coercion Statements attributed to Feldhorn by Harwell and Rodriguez, if made, were in- timidatory in character, regardless of what Feldhorn had in mind when he made them or whether they were statements of actual intention or mere bluster. Feld- horn's resentment of Harwell could not legitimately be channeled into interference with his employees' choice of a bargaining representative,i or punitive action taken against his employees, such as a reduction in their workweek. I am convinced and have found that the reduction in the workweek was not in fact punitive but was economically motivated, but Rodriguez would reasonably take his employer's state- ment at its face value. Feldhorn's denial or explanation of the statement attributed to him with respect to the reduction in the workweek, unfortunately was somewhat "garbled" in what was otherwise highly competent reporting. As I recall his testimony it was to the effect that Harwell's conduct and attitude created such ill will and was so disruptive -that it might have economic reprecussions resulting in a permanently reduced work- week, and that this was the substance of what he said at the September 16 meeting. His remark about getting a new union in the plant when his present contract expired was occasioned, he testified in effect, by Harwell representing himself as being the whole Union; in short, his remark at the September 16 meeting about getting a new union was merely an extension of his statement that he would no longer deal with Harwell. Feldhorn was, on the whole, a credible and convincing witness, but I incline to the view that Harwell's and Rodriguez' version of his remarks at the September 16 meeting more closely represents what he actually said than what Feldhorn now thinks he said. When he spoke he was in an angry and resentful mood; in retro- spect, his anger and resentment quieted, he rationalized what he had said, and in testifying substituted the rationalization for the actual words. He was not the first and will not be the last to do this. And there are these extenuating circumstances which must be considered: on September 16, he was confronted by a man who out of his presence and in the presence of his employees had called him an habitual liar and who in his presence on September 16 maintained a contemptuous attitude by questioning his word that he would put his refusal to deal with Harwell in writing by sending a letter to the Union. True, these statements of an intimidatory character were made in the presence of Rodriguez, an employee, but Rodriguez was not present in Feldhorn's office on this occasion, as a mere employee: lie was there as Harwell's .associate in the latter's representative character with the Union. Under all these ,circumstances, I cannot feel that a remedial order is required or that any useful 5 1.e, the labor organization of their own choosing. 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD public Purpose would be served by finding that this employer has violated the Act .6 Accordingly, I shall recommend dismissal of the complaint. CONCLUSIONS OF LAW 1. Deeco, Inc., Huntington Park , California, is engaged in, and at all times material herein has been engaged in, commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 976, International Union, Allied Industrial Workers of America, AFL.- CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. All production and maintenance employees, including shipping and receiving employees and truckdrivers, employed at Respondent's Huntington Park, Cali- fornia, plant, exclusive of plant clerical employees, office clerical employees, guards, watchmen, professional employees , and supervisory employees , constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union was, on September 16, 1959, and at all times material herein has been and still is, the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 5. The Respondent has not engaged in the alleged unfair labor practices violative of Section 8 (a) (1) and (5) of the Act. [Recommendations omitted from publication.] ' N.L.R.B. v. Arthur A. Borchert, d/b/a West Fork Cut Glass Company, 188 F. 2d 474 (C.A. 4). Clerks and Checkers Local Union No. 1692, International Long- shoremen's Association, Independent, and International Long- shoremen's Association, Independent and J & R Contractors, Inc. Case No. P3-CD-39. May 9, 1960 DECISION AND DETERMINATION OF DISPUTE STATEMENT OF THE CASE This proceeding arises under Section 10(k) of the Act which pro- vides that "whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4)'(D) of section 8 (b), the Board is empowered and directed to hear and deter- mine the dispute out of which such unfair labor practice shall have arisen. . . ." On September 14, 1959, J & R Contractors, Inc., herein called the Company, filed with the Regional Director for the Twenty- third Region an amended charge alleging that Clerks and Checkers Local Union No. 1692, International Longshoremen's Association, In- dependent, and International Longshoremen's Association, Independ- ent, herein called the ILA, had engaged in and were engaging in cer- tain unfair labor practices within the meaning of Section 8 (b) (4) (D) of the Act. It was charged in substance that the ILA had induced and encouraged employees of the Company to engage in a strike and a concerted refusal to work with the object of forcing or re- quiring the Company to assign certain work to members of the ILA rather than to the Company's employees who were not members of that labor organization. 127 NLRB No. 78.