Dickten & Masch Mfg. Co.

112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dustries, direct that an election be held at or about the peak of the season on a date to be determined by the Regional Director, among the employees in the appropriate voting groups who are employed during the payroll period immediately preceding the date of the issuance of notice of election by the Regional Director. [Text of Direction of Elections omitted from publication.] Dickten & Masch Mfg. Company and Tool and Die Makers Lodge No. 78, International Association of Machinists, AFL- CIO. Cases Nos. 13-CA-2867 and 13-CA-3120. September 29, 1960 DECISION AND ORDER On December 22, 1959, Trial Examiner Lee J. Best issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support thereof.' The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in these cases, including the Intermediate Report, the excep- tions and the brief, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations with the modifications and addi- tions hereinafter indicated. We find, in agreement with the Trial Examiner, that since May 29, 1958, the Respondent has refused to bargain in good faith with the Union as the certified bargaining representative for an appropriate unit consisting of toolroom employees, in violation of Section 8 (a) (5) and (1) of the National Labor Relations Act. Specifically, the Re- spondent violated Section 8 (a) (5) and (1) by: (1) refusing to bargain with the Union concerning the Rucker Share of Production Plan; (2) by unilaterally establishing a wage rate of $3 an hour for tool repair work; and (3) by terminating all negotiations on Decem- ber 2, 1958, and refusing to meet with the Union thereafter. By refusing to meet with the Union, the Respondent made it impossible for the parties to reach agreement on the issues involved in the strike 1 The Respondent requested oral argument. The request is hereby denied as the record, including the exceptions and brief, adequately presents the issues and positions 9f the parties. 129 NLRB No. 18. DICKTEN & MASCH MFG. COMPANY 113 and thereby clearly prolonged the strike and converted it to an unfair labor practice strike, as the Trial Examiner found? THE REMEDY Having found that the Respondent has unlawfully refused to bargain with the Union, we shall order the Respondent to cease and desist therefrom 3 and take certain affirmative action designed to effectuate the policies of the Act, as recommended by the Trial Ex- aminer. We have found that the Respondent refused to bargain by unilaterally establishing a wage rate of $3 an hour for tool-repair work. We shall, therefore, in addition to the remedy recommended by the Trial Examiner, and in accord with the established Board policy of restoring working conditions unilaterally changed,4 order that the Respondent restore the wage rates in effect prior to such unilateral action, retroactive to December 2, 1958, and pay backpay to all employees employed in the unit since that date, including those newly hired, in an amount equal to the difference, if any, between the wages actually paid the employees and the amount they would have received had the wage rates not been unilaterally changed. We shall further modify the Trial Examiner's recommended Order by providing specifically that the reinstatement which he has ordered shall be to jobs, if available, and such availability will be determined by the size of the complement needed at the time of the strikers' reinstatement, instead of providing generally, as did the Trial Ex- aminer, for the Respondent's right to make such reduction to "a normal complement." As recommended by the Trial Examiner, all strikers for which no jobs are immediately available shall be placed on a preferential hiring list. ORDER Upon the entire record in these cases and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Dickten & Masch Mfg. Company, Milwaukee, Wisconsin, its officers, agents, successors, and assigns shall : a We do not agree with Member Rodgers that one of the issues in this case is whether the Respondent violated the Act by refusing to bargain with respect to the effect of the discontinuance of its toolmaking operations on the employees in the unit The Trial Examiner made no specific finding with respect thereto , and the General Counsel filed no exception to his failure to do so The issue is therefore not before us. Under these cir- cumstances, we find it unnecessary to express an opinion on this question. a We do not agree with the dissent that all reference to toolmaking operations should be eliminated from the unit description in our bargaining order herein . The unit con- forms with the contract unit Moreover, even if the Respondent is not currently engaged in toolmaking, if and when such operations are resumed, employees so engaged properly belong in this unit as heretofore, and are entitled to be bargained for as part of this unit. 4 Cascade Employer's Associattion, Inc , 126 NLRB 1014, and cases cited therein. 586439-61-vol. 129-9 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Refusing to bargain collectively with Tool and Die Makers Lodge No. 78, International Association of Machinists, AFL-CIO, as the exclusive bargaining representative of all toolroom employees who are engaged in making, assembling, erecting, dismantling, and repairing of machinery, tools, dies, jigs and fixtures, and equipment and/or parts thereof of all descriptions, but excluding office clerical employees, guards, professional employees, all other employees, and supervisors as defined in the Act, with respect to the Rucker Share of Production Plan, rates of pay, wages, tenure of employment, other conditions of employment, and by effectuating unilateral changes in wages or other working conditions. (b) Interfering with, restraining, or coercing employees in any like or related manner in connection with the exercise of the right to self-organization, to form labor organizations, to join or assist Tool and Die Makers Lodge No. 78, International Association of Machin- ists, AFL-CIO, or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in other 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 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, bargain collectively with Tool and Die Makers Lodge No. 78, International Association of Machinists, AFL-CIO, as the exclusive representative of all employees in the appropriate unit for purposes of collective bargaining with respect to wages, hours, and other terms and conditions of employment, and if an under- standing is reached, embody such understanding in a signed agreement. (b) Revoke the unilateral wage changes instituted on December 2, 1958, and revert to the wage scale and benefits existing immediately prior to December 2,1958. (c) Make whole the employees in the appropriate unit for any loss of pay they may have suffered by reason of the unilateral changes in wage rates as set forth in the section of the Intermediate Report en- titled "The Remedy," as modified herein. (d) Upon application offer to the Respondent's striking employees immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay in the DICKTEN & MASCH MFG. COMPANY 115 manner set forth in the section of the Intermediate Report entitled "The Remedy," as modified herein. (e) Preserve and, upon request, make available to the Board and its agents for examination and copying all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to determine the amount of backpay due, if any, and the rights of employment under the terms of this Order. (f) Post at its plant in Milwaukee, Wisconsin, copies of the notice attached hereto marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director of the Thirteenth Region, shall, after being duly signed by an authorized representative of the Re- spondent, be posted by it immediately upon receipt thereof and be maintained by it for at least 60 consecutive days thereafter in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, defaced or covered by any other material. (g) Notify the Regional Director for the Thirteenth Region, in writing, within 10 days of the date of this Order, what steps the Re- spondent has taken to comply herewith. MEMBER RODGERS, dissenting in part : One of the issues in this case is whether the Respondent violated the Act by refusing to bargain with the Union as to the effect of the Respondent's discontinuance of toolmaking operations on the wages, tenure, and working conditions of employees in the bargaining unit. The decision of my colleagues is silent on this subject. It is clear to me that the Respondent did not violate the Act in this respect. I assume that this is also the view of my colleagues; but if it is not, they owe it to the parties, and to the courts that may be called upon to review this case, to say it is not. The need for some statement by my colleagues on the subject is more than academic. The matter goes to the very heart of the bar- gaining order here being issued. If the Respondent did not violate the Act by refusing to bargain with respect to the effect of the Re- spondent's discontinuance of toolmaking operations, and if the Respondent was lawfully privileged to discontinue its toolmaking operations-and no one here contends that Respondent was not so privileged-then Respondent should not, and cannot, lawfully be ordered to bargain for, or about, the certified unit. That unit no longer exists, and any order with respect to it is no more than a legal futility. 6 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." 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, the bargaining order which my colleagues have fashioned is, to say the least, inconsistent with their apparent findings. I would order the Respondent to bargain only for those toolroom employees presently employed who are engaged in repairing ma- chinery, and tools and dies . I would eliminate from the description of the unit all reference to toolroom employees engaged in "making, assembling, erecting, and dismantling" work. The decision and order of the majority as presently written are too vague to be properly enforced. MEMBERS FANNING and KIMBALL took no part in the consideration of the above Decision and 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 bargain collectively with Tool and Die Makers Lodge No. 78, International Association of Machinists , AFL-CIO, as the exclusive representative of all employees in the bargaining unit described below (which includes tool repairmen ) with re- spect to the Rucker Share of Production Plan, rates of pay, wages, tenure of employment, and other conditions of employ- ment, and if an understanding is reached , we will embody such understanding in a signed contract . The bargaining unit is: All toolroom employees who are engaged in making, as- sembling, erecting, dismantling and repairing of machinery, tools, dies, jigs and fixtures , and equipment , and/or parts thereof of all descriptions ; but excluding office clerical em- ployees, guards, professional employees , all other employees, and supervisors as defined in the Act. WE WILL revoke the unilateral wage changes instituted on December 2,1958, and revert to the wage scale and other benefits existing immediately prior to December 2, 1958. WE WILL make whole the employees in the appropriate unit for any loss of pay they may have suffered by reason of our unilateral changes in wage rates. WE WILL upon application offer to all our toolroom employees who were on strike December 2 , 1958, full and immediate rein- statement to their former or substantially equivalent positions without prejudice to their seniority and other rights and priv- ileges, and make them whole for any loss of pay they may have DICKTEN & MASCH MFG. COMPANY 117 suffered as a result of our refusal to reinstate them after such application. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the right to self- organization, to form, join, or assist Tool and Die Makers Lodge No. 78, International Association of Machinists, AFL-CIO, 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 agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the National Labor Relations Act as modified by the Labor-Management Re- porting and Disclosure Act of 1959. DICKTEN & MASCH MFG. 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 This proceeding with all parties represented by counsel was heard before the Trial Examiner at Milwaukee, Wisconsin, on July 21, 22, and 23, 1959, upon a complaint filed by the General Counsel of the National Labor Relations Board, herein separately designated as the General Counsel and the Board , and answer thereto filed by Dickten & Masch Mfg. Company, herein called the Respondent or Respondent Company. The principal issue litigated was whether the Respondent refused to bargain collectively in good faith with Tool and Die Makers Lodge No. 78, International Association of Machinists , AFL-CIO, herein called the Union, as the exclusive representative of all employees working in its toolroom department, by unilaterally establishing a plantwide profit sharing plan known as The Rucker Share of Production Plan, changing the wages and working conditions of employees in its toolroom, withdrawing recognition of the duly certified appropriate bargaining unit, and thereby prolonging an economic strike engaged in by such employees. All oral argument and written briefs submitted by counsel to the Trial Examiner have been given due consideration. Upon the entire record in the case, and from observation of the witnesses, I make the following: FINDINGS OF FACT 1. BUSINESS OF THE RESPONDENT Dickten and Masch Mfg. Company is a corporation organized and existing under the laws of the State of Wisconsin, having its principal office and maintaining its plant in the city of Milwaukee, where it employs approximately 80 to 90 employees and is engaged in the manufacture and sale of moulded plastic products. During the representative calendar year of 1958, the gross volume of business produced by Respondent was in excess of $1,000,000. In the course and conduct of its opera- tions during said year, it purchased and received materials valued in excess of $250,000 directly from sources outside the State of Wisconsin ; and during the same period fabricated , sold, and shipped finished products valued in excess of $200,000 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from its Milwaukee plant directly to purchasers outside the State of Wisconsin. I find, therefore, that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. If. THE LABOR ORGANIZATION INVOLVED Tool and Die Makers Lodge No. 78 , International Association of Machinists, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Historical Background The principal product of the Respondent is plastic components produced by the use of steel molds into which plastic materials are poured, and thereafter removed for certain finishing operations preparatory to shipment to customers . Approxi- mately 70 employees commonly called molders and finishers are engaged in such operations at the Milwaukee plant. Prior to September 1958 and at all times pertinent to this case, the Respondent operated a separate department known as the toolroom in which 11 employees and 1 foreman commonly called tool- and die-makers were engaged in making new and repairing old steel molds and certain other tools used by the Respondent in its production operations . Some new tools were produced for outside customers , and the Respondent has for many years also purchased a substantial part of its own new tools from other fabricators . According to the undisputed testimony of Erich Dickten, president and general manager of Respondent, the overall work of employees in the toolroom was about equally divided between new toolmaking and repairing old tools, with a preponderance of the most experienced tool makers being assigned to work requiring the highest degree of skill. The toolroom is adequately equipped with toolmaking machinery, but a major part of the repair work is done by handwork. By letter dated September 30, 1954, the Union for the first time claimed a majority and demanded recognition as the bargaining representative of Respondent's "toolroom employees and their apprentices engaged in the making, erecting, dis- mantling and repairing of tools, dies , jigs, fixtures, etc., but excluding office and clerical employees, professional employees , guards, supervisors , as defined in the National Labor Relations Act, as amended, and all other employees employed by the Company." Thereupon, the Respondent and the Union on October 11, 1954, entered into a stipulation for certification upon consent election , which was approved on October 12, 1954, by the Regional Director for the Thirteenth Region in Cases Nos. 13-RC-4106 and 13-RM-216 (consolidated ). Following an election con- ducted pursuant to the foregoing stipulation , the Regional Director by authority of the National Labor Relations Board on November 1, 1954, issued a Certification of Representatives certifying that Tool and Die Makers Lodge No. 78 , International Association of Machinists, AFL-CIO, has been designated and selected by a ma- jority of Respondent's employees in the unit defined in the aforesaid stipulation, and is the exclusive representative of all the employees in such unit for the purpose of collective bargaining with respect to rates of pay, wages , hours of employment, and other conditions of employment . The unit was described therein as "All tool- room employees, excluding office clerical employees , professional and supervisory employees, and guards as defined in the National Labor Relations Act as amended, and all other employees." The parties then entered into a written collective- bargaining agreement covering "toolroom employees , who are engaged in the making, assembling, erecting, dismantling and repairing of machinery , tools, dies, jigs and fixtures, and equipment and/or parts thereof , of all descriptions, but excluding office clerical employees , guards, professional and supervisory employees as defined in the Act as amended , and all other employees of the Company." This contract and its subsequent annual amendments provided for three job classifications (tool- and die-maker, journeyman machinist , and tool- and die-maker apprentice); and in article IV, section 8, entitled "SENIORITY," it was provided, inter alia, "that all merit increases, reclassifications of employees , promotions and adjustments in wage rates during the term of this contract , shall be made only through negoti- ations and collective bargaining by the Company and the Union in each case. [emphasis supplied. 1 The last agreement expired on or about September 1, 1957, whereupon the parties entered into negotiations for a new contract beginning with a meeting on August 4, 1957, and continued at 14 subsequent meetings on September 30, October 1, and December 10, 1957, and January 15, February 24, March 7, May 29, June 16, August 15, September 24, September 26, October 14, October 20, and December 2, 1958 , respectively. At the opening of negotiations , the Union DICKTEN & MASCH MFG. COMPANY 119 demanded a general increase in wages of 20 cents per hour, but the Respondent offered a counterproposal of 15 cents per hour, which was put into effect retro- active to September 1, 1957, at expiration of the old contract. Thereafter, on November 8, 1957, the Union filed a charge in Case No. 13-CA-2461 against Respondent, alleging a violation of Section 8(a) (5) of the Act for failure to bargain in good faith with the Charging Union. No complaint was filed therein, and on or about February 11, 1958, Respondent received a letter from the Regional Director stating that the aforesaid charge had been withdrawn. Negotiations for a new contract continued. B. The refusal to bargain At the bargaining session on May 29, 1958, the Respondent initially disclosed its intention to offer a profit-sharing plan to all employees on a plantwide basis, and at that time exhibited a tentative but incomplete draft of such a proposal. Thereupon, the Union suggested that the proposed plan be made a subject for dis- cussion and negotiation, but Respondent declined to do so on the theory that the plan would be entirely voluntary; whereupon, the Union threatened to file an unfair labor practice charge. Thereafter, on June 3, 1958, Respondent called group meet- ings of all employees in the plant, including toolroom employees, and announced adoption of "The Rucker Share of Production Plan" effective as of June 1, 1958. The plan was presented, explained, and discussed by the representative of a man- agement consultant firm previously employed by the Respondent to make a study of its books, recommend, develop, and supervise the operations of a definite plan adapted to the situation at Dickten and Masch Mfg. Company. In addition thereto, Respondent delivered to each employee an explanatory written statement, as follows: JUNE 3, 1958. For approximately 2 years the management of Dickten and Masch has been searching for a new program that would improve employee-company relations. We have recognized the need for a plan which would encourage maximum in- terest in your work and stimulate your sense of cooperation with your fellow employees. To accomplish this, the company must provide more than a mere place to work, the tools of production, and a wage and salary "schedule"-this we knew. We wanted to find a way to provide an extra reward for extra effort. We believed then, and believe now, that a well-planned Bonus program is the best answer to this need. Many plans were discussed and rejected. They did not meet our one major requirement-a program which would provide a fair reward for effective teamwork. We did not want a plan which would merely reward the speed- demon-important as production speed may be in our competitive business world. We definitely did not want a plan which pitted one employee against another in a struggle for individual gain. We did want,a plan which would offer all employees an opportunity to gain through cooperative effort. About a year ago a new and different type of Employee Bonus Program came to our attention-the Rucker Share of Production Plan. This Bonus plan has now been thoroughly tested in more than 100 sound business organizations. It has proved good for employees, through substantial increases in their incomes. It has proved good for the companies, by creating a new sense of partnership between the employees and management. After a careful study of the merits of the Rucker Plan, we authorized the firm of Strong-Narovec and Company of Cleveland, Ohio, to start a study of our business to see if the Rucker Plan itself could be adopted here. After a very careful and thorough survey, Strong-Narovec gave us their report and recommended the Rucker Plan for our organization. After a thorough check- ing we agreed, and authorized completion of the work. With a great feeling of enthusiasm, we are now announcing the introduction of the Share of Production Plan at Dickten & Masch. Strong-Narovec will present the Plan to our employees through their representative, Mr. Neal Barbu. They have also been employed to start the Plan in operation, and to supervise it for us during the first year. They will also act as our advisors in the future if we need their further services. The starting date for the program will be June 1, 1958-and it will be operated for a trial period of one year. As this is a voluntary plan, it may at anytime thereafter be revised or withdrawn by the company. It is, however, intended to continue the plan on a permanent basis. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All employees on the hourly pay basis will participate in the employees share - of the Bonus. All foremen and office employees will be paid their share out of the company's portion of the Bonus. This is a voluntary, cooperative plan, not based on individual production standards or any other direct measurement of quantity of production. Since the plan does not alter or affect hourly wage rates, bargaining pro- cedures, or any contractual relations, it constitutes a voluntary extra payment by the company when Bonus is earned. It is, of course, hoped that all employees will actively participate in the pro- gram. However, it is the privilege of any union group or any departmental non-union group to be excluded, by request, from payment of the Bonus which would otherwise be distributed to all employees. The Program is explained in detail in the booklet that accompanies this letter. We hope you will freely discuss any questions you may have with your super- visor or with representatives of management. This plan will replace all piece rates now in effect; however, the hourly rates and shift bonuses will remain as now in effect. The success of the Share of Production plan will depend on the enthusiastic participation of you and your fellow employees. With that enthusiasm, it can create a real teamwork spirit in our organization, and make your work not only more interesting and pleasant, but also more profitable to you. Sincerely, ERICH DICKTEN, President. DICKTEN & MASCH MFG. CO. The foregoing action taken by the Respondent on June 3, 1958, was promptly reported to the Union Business Agent by members of the union shop committee in attendance at the meeting. Thereupon, Business Agent Rudolph Poweleit called President Erich Dickten by telephone on June 5, 1958, requested full information on the profit-sharing plan and an opportunity to negotiate the matter prior to official adoption thereof. Dickten told him that the plan was already in effect, but employees could withdraw if they did not want it. On June 6, 1958, the Union filed a charge in Case No. 13-CA-2867 alleging that Respondent failed to bargain in good faith in bypassing the Union and dealing directly with toolroom employees on a profit- sharing plan. Thereafter, on June 9, 1958, the Respondent posted a letter to the Union, as follows: JUNE 9, 1958. TOOL & DIE MAKER LODGE 78, International Association of Machinists, 624 North 24th Street, Milwaukee, Wisconsin. Attention: Mr. R. Poweleit DEAR SIR: Reference is made to your telephone call of June 5, 1958, inform- ing us of your intentions of filing unfair labor practice charges against this company as a result of the installation of the "Rucker Share of the Production Plan" for the hourly employees of this company which would also cover tool room employees if they so desire. No doubt you have received from Mr. Gerfin a copy of the Rucker plan booklet and a copy of a letter dated June 3rd which was distributed to all our employees, however, we are enclosing a copy of each for your convenience. You will notice that the fourth paragraph from the end reads as follows: "It is, of course, hoped that all employees will actively participate in the program. However, it is the privilege of any union group or any departmental non-union group to be excluded by request, from payment of the Bonus which would otherwise be distributed to all employees." It seems to us that the above quoted paragraph leaves no doubt but that the plan may be rejected by the group belonging to Local 78. If this is the case, we would appreciate receiving a letter from you stating your wishes and would be very happy to exclude your group from the Bonus plan. May we have the letter stating the wishes of the Tool Makers at Dickten & Masch as soon as possible. Yours very truly, DICKTEN & MASCH MFG. CO. ERICH DICKTEN. DICKTEN & MASCH MFG. COMPANY 121 With respect to the aforesaid charges, the Respondent on June 9, 1958, also posted a letter to the Regional Director of the National Labor Relations Board, as follows: NATIONAL LABOR RELATIONS BOARD, Midland Building, 176 W. Adams Street, Chicago 3, Illinois. Attention: Mr. R. M. Madden Re: Case # 13-CA-2867 GENTLEMEN: In answer to your letter of June 6th regarding the above case, we are enclosing a copy of the Rucker Share of the Production Plan as pre- sented to the employees of this company. A copy of a letter which was given to each employee is also enclosed. This letter was distributed among our em- ployees on the 3rd of June at the time the Rucker Share of Production Plan was explained. We do not know at this time whether or not the organized tool room em- ployees wish to be excluded from this plan since we have not received either a written or verbal notice to that effect. It is possible, however, that by having the Union file unfair labor practice charges in connection with this plan, that the group signifies intentions of being excluded from the benefits this plan may bring about. In order to clarify this situation, we wrote a letter to Mr. Poweleit of Local 78 requesting a statement as to the wishes of the organized group in the tool room consisting of seven people. Yours very truly, DICKTEN & MASCH MFG. CO. ERICK DICKTEN President. At 'a bargaining session between the Union and the Company on June 16, 1958, Business Agent Poweleit insisted that the recently established profit-sharing plan be fully discussed and negotiated between the parties, but President Dickten adhered to his original position that the plan was entirely voluntary and must be either accepted or rejected by the Union for the unit of toolroom employees without further negotiation. At this meeting the Union was for the first time given a com- plete official copy of the Rucker Share of Production Plan, which had been established by Respondent in its plant. Under these circumstances the Union made no com- mitment whether it would accept or reject the plan on behalf of the toolroom employees. Nevertheless, Respondent in July 1958 and thereafter included em- ployees of the toolroom in all monthly distribution of benefits arising under the provisions of the plan. At the next meeting of the negotiating parties on August 15, 1958, the Union submitted to Respondent written proposals for a basic uniform wage structure as follows: 1958 Contract Proposals as Recommended to and Adopted by the Policy Committee of Tool and Die Makers' Lodge No. 78, I.A.M. In line with the general policy established by Tool and Die Makers' Lodge No. 78, we will again in these negotiations attempt to establish a basic uniform wage structure for the classification of tool and die makers and toolroom ma- chinist, and attempt to maintain the same relative position between those two classifications and the allied classifications that we might find existing in some of our toolroom units. The recommended wage schedule adopted by the Policy Committee is as follows: Progression Schedule Alin. hiring rate After I After I Merit range 6 mos. 9 mos. After 3 mos Tool and die makers ------------- $3.15 $3 20 $3 25 $3.30 $3 30 to $3.50 Journeymen machinists ---------- 3.00 3 05 3.10 3.15 3.15 to 3.35 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In applying the above wage structure , all employees are to be given credit for the amount of time that they were employed by their employer in their respective classifications . All other employees engaged in allied classifications are to have their wage structure with minimums, progression, etc., geared to the above structure. Wage Increase: All employees employed in toolrooms under the jurisdiction of Tool and Die Makers' Lodge No. 78 are to receive a 6% general wage increase and such additional amount, if necessary , to place them in their respective position in accordance with the aforementioned wage structures. Vacations: All groups are to propose a vacation plan which provides not less than 2 weeks after 3 years of seniority; 2 weeks and 3 days after 7 years; 3 weeks after 10 years; 3 weeks and 3 days after 15 years; and 4 weeks after 20 years of seniority. Note: In order to protect ourselves against the recent adverse ruling of the Unemployment Compensation Bureau of the State of Wisconsin, we are insisting that all contracts provide the following protective language: "Should employees be laid off prior to their scheduled vacation or vacation shutdown period, if so provided for under the terms of the labor agreement between the parties, the Company will not allocate the vacation time owed to such employee during his period of layoff, unless said employee requests his vacation pay due. In the event the Industrial Commission of the State of Wisconsin, any of its departments or agents, denies an employee unemployment compensation benefits during an employee 's period of layoff, because contrary to the aforementioned the Company allocated vacation due to an employee during a layoff period, the Company will make whole to such employee any unemployment compensation that has been denied him by reason of the action of any of the aforementioned." Holidays: All groups are to propose the inclusion of the eighth (8th) paid holiday, which could be either the day after Thanksgiving or the two half days preceding Christmas and New Year's. Pension: Recognizing that our pension and insurance benefits are generally tied in with an over-all Company or Corporation Plan, it is not the intent of Tool and Die Makers' Lodge No. 78 to incorporate in our 1958 demands any specific over-all or general request of increased insurance benefits other than the fact that each unit will have to study their plan carefully and determine exactly what changes can and should be made to improve both their pension and insurance plans; however, in the tool and die jobbing shops, it is a definite policy and recommendation of Tool and Die Makers' Lodge No. 78 that all groups negotiate and additional ten (10¢ ) cents per hour to be put into a fund from which insurance or pension benefits will be purchased. Apprenticeship Rate Schedule: As part of our proposals we will submit to management a request that the new apprenticeship rate schedule be adopted if they have not already been incorporated in the agreements . This would provide that instead of the apprentices starting at 40 % of the basic or minimum hiring rate of the journeyman they would be starting at 50%o and progress Solo each 1 ,000 hours thereafter. Note: In those establishments where the apprentices' rate is already based on the top of the journeyman's progression schedule, we will base their wage structure on the recently-negotiated top of the progression schedule. JH:LL oeiu#9afl-cio Again on September 26, 1958, a bargaining session was held at the plant in the office of President Dickten for further discussion of proposals made by the Union. At that meeting the Respondent presented its final wage proposal in writing . There- upon, Business Agent Poweleit submitted the proposal to employees in the toolroom, where and when a strike vote was conducted with the result that a srike was called. On the afternoon of September 26, 1958, the entire toolroom complement of I1 employees both union and nonunion went out on strike. Picketing of the plant continued until April 1959 . but the strike has never been settled . Thereafter, on September 29, 1958, the Regional Director of the National Labor Relations Board approved a settlement agreement between the parties to withdraw the charge in DICKTEN & MASCH MFG. COMPANY 123 Case No. 13-CA-28671 by reason of which Respondent posted a notice in the plant, as follows: NOTICE To ALL EMPLOYEES Pursuant to a settlement agreement approved by the Regional Director, Thirteenth Region 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 bargain collectively upon request with the Tool and Die Makers' Lodge No. 78, International Association of Machinists, AFL-CIO, as the exclusive representative of all employees in the bargaining unit described herein with respect to The Rucker Share of Production Plan, and if an understanding is reached, embody such understanding in a signed agreement. WE WILL NOT in the future unilaterally make changes in The Rucker Share of Production Plan distributed to toolroom employees, who are engaged in the making, assembling, erecting, dismantling and repairing of machinery, tools, dies, jigs and fixtures and equipment and/or parts thereof, of all descriptions, but excluding office clerical employees, guards, professional and supervisory employees as defined in the Act as amended, and all other employees of the Company, without prior consultation with Tool and Die Makers Lodge No. 78, International Association of Ma- chinists, AFL-CIO Since the establishment of the plan, the Union and the Employer have entered into negotiations concerning the plan. ERICH DICKTEN, President. Dated Sept. 30,1958 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. Pending compliance with the foregoing settlement agreement and posting of the aforesaid notice thereunder, a meeting of the parties was held on October 14, 1958, in the presence of Commissioner Murphy of the Federal Conciliation Service. At this meeting the Respondent announced that it was discontinuing the operation of its toolroom, and that all new work would be contracted outside of the plant. On the same date it posted a notice to the same effect on the plant bulletin board. Consequently, no agreement was reached. At a second meeting with Commissioner Hagist of the Federal Conciliation and Mediation Service on October 20, 1958, the Respondent modified its proposal to discontinue operation of its toolroom by asserting that it would employ several craftsmen at wage rates not exceeding $3 per hour for repair work and maintenance of its old tools and dies, but would not maintain an apprentice program or seniority, and would not fabricate new equip- ment. Respondent refused to agree to recall by seniority, vacation pay for the time employees were out on strike, or severance pay for those strikers who would not be recalled to work. With respect to the health and welfare program the Re- spondent announced that all toolroom employees not recalled by January 1, 1959, would be dropped. A final meeting for negotiations between the parties was held on December 2, 1958, which was conducted in President Dickten's office by a representative (Robert Miller) of the Wisconsin Employment Relations Board. Meanwhile the strike was still in effect, and Respondent continued to operate its toolroom to a limited extent with the help of supervisory personnel. Respondent refused to change its position. After conferring with the conciliator in private for approximately 45 minutes, President Dickten came out and announced that Respondent would pay no vacation pay and would notify the toolroom employees (strikers) that they could apply for tool repair jobs at $3 per hour, and that he would select those that Re- spondent wanted. Thereupon, President Dickten refused to negotiate further or attend any more meetings for that purpose. Business Agent Poweleit reauested that the Respondent's position be put in written form, and President Dickten agreed to do so. 1 In view of the fact that additional and related charges were subsequently filed by the Union, the charge In Case No. 13-CA-2867 was reinstated on or about April 14, 1959. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, by letter to the Union on December 5, 1958, Respondent stated its position with respect to further collective bargaining as follows: TOOL & DIE MAKERS LODGE No. 78, 624 North 24th Street, Milwaukee, Wisconsin Attention: Mr. Rudolph Poweleit GENTLEMEN: The purpose of this letter is to set forth this Company's posi- tion in response to your frequent requests to bargain. The contract between this Company and Lodge 78, covering our Tool Room employees, expired on September 1, 1957. Efforts to negotiate a new contract proved fruitless and several months ago you called the Tool Room employees out on strike. Last October the Company announced that it was no longer economically feasible to operate the Tool Room, that henceforth it would contract out for its tool and die making work, but that the Company would continue to employ two or three men to do tool repair work. Since that time you have met with us on several occasions to negotiate for the Tool Room employees on strike, at times in the presence of Federal and State mediators. In view of our decision to discontinue the Tool Room operation, we believe there is no point in these negotiation meetings. In our opinion the bargaining unit which you formerly represented no longer exists. This will serve as notice that the Company will no longer participate in such meetings. Yours very truly, DICKTEN & MASCH MFG. CO., ERICH DICKTEN, President. ED:b cc: Mssrs. Draznin Mueller Lacy On the same day, December 5, 1958, Respondent sent identical letters to all strik- ing toolroom employees except an apprentice and Harvey Heup (who had already been rehired as a tool designer ), as follows: The Company has an opening for two Tool Repairmen. Applications for these job openings can be made at the office beginning Monday, December 8, 1958. Applicants must have experience in Tool Repair work. The hourly rate of pay for these jobs will be $3.00. The first striker rehired by the Respondent was Harvey Heup, who came back to work as a tool designer in the toolroom office. Eric Hahn (striker), was rehired on December 10, 1958. Norman Belcher was hired as a new employee on January 6, 1959. Horst Gruendler (striker), who had been toolroom machinist, was rehired on February 2, 1959. Siegfried Grabosch was hired as a new employee on March 5, 1959. Walter Frank was hired as a new employee on March 23, 1959. Norman Goetz (striker), was rehired on April 30, 1959. Only the last named (Goetz) had been a member of the Union, and accepted a reduction in pay from $3.09 to $3 per hour, although he was the senior tool- and die-maker in Respondent's toolroom prior to the strike. Except as to abandonment of the fabrication of new tools, etc., operation of the toolroom has continued as a service unit with reduced force under the supervision of Foreman Walter Nies. All machines therein remain intact, except- ing one machine formerly devoted to new work is not being used at the present time. C. The appropriate unit Respondent in this case has raised the superficial issue that the appropriate unit found and certified by the Board in the consolidated Cases Nos. 13-RC-4106 and 13-RM-216 on November 1, 1954, has ceased to exist. For that reason only it is contended that there is no obligation or requirement for further recognition or collective bargaining with the Union as the exclusive representative of employees engaged in repair work in its toolroom. I cannot agree. In my opinion neither the strike of all toolroom employees on September 26, 1958, the unilateral abandon- ment of new work therein by the Respondent, nor its arbitrary reclassification of employees performing repair work on tools, dies, jigs, fixtures, etc., alter or destroy the Board certification. In all written collective-bargaining agreements with the Union prior to expiration of the last contract on or about September 1, 1957, and in DICKTEN & MASCH MFG. COMPANY 125 subsequent negotiations extending to December 2, 1958, the Respondent recognized the Union as exclusive representative for all its toolroom employees. On Septem- ber 30, 1958, Respondent entered into a settlement agreement and posted a notice in Case No. 13-CA-2867 to bargain with the Union with respect to The Rucker Share of Production Plan insofar as it pertained to its toolroom employees. As previously found by the Board, and heretofore recognized by the Respondent in written contracts with the Union and in aforesaid settlement agreement , I find that the existing appropriate unit in this case consists of "All toolroom employees of the Respondent, who are engaged in making, assembling, erecting, dismantling and repairing of machinery, tools, dies, jigs and fixtures, and equipment and/or parts thereof, of all descriptions , but excluding office clerical employees, guards, pro- fessional and supervisory employees as defined in the Act as amended , and all other employees of the Company." Concluding Findings There is little or no dispute about the facts in this case . Respondent does not deny that on and after May 29, 1958, it refused to bargain with the Union concern- ing The Rucker Share of Production Plan upon the theory that such plan was entirely voluntary and subject to acceptance or rejection by the Union and its tool- room employees. The Board and the courts, however, have repeatedly held that the term "wages" mentioned in Section 9(a) of the Act, as to which an employer is required by Section 8(a)(5) to bargain with the exclusive representative of his; employees, comprehends all emoluments of value which may accrue to employees by reason of their employment relationship.2 To induce withdrawal of the first unfair labor practice charge filed in Case Ns. 13-CA-2867, the Respondent entered into a settlement agreement and posted notice to the effect that it would upon request bargain with Tool and Die Makers Lodge No. 78, IAM, AFL-CIO, as the exclusive representative of all employees in the appropriate unit. Notwithstanding this agreement and posting of the notice on September 30, 1958, the Respondent 2 weeks later announced that it would dis- continue operation of its toolroom and on October 14, 1958, posted a notice in its plant to that effect. In fact, however, Respondent intended merely to limit opera- tions in its toolroom to repair work by contracting with outsiders for the fabrication of all instead of part of the new tools needed in its plant. It is contended by Respondent that for the past 3 years it has been more economical to purchase new tools from outside contractors, but that for reasons of convenience and training of its working force in the toolroom it continued to manufacture a part of the new tools required for its operations. It is further contended that Respondent could not meet the union wage demands, and considered the strike an opportune time to dis- continue the toolroom as a manufacturing unit of the plant, and convert it into a service organization. In either case, however, the employees therein constitute an appropriate unit for the purpose of collective bargaining, as found in section III, C, above. Assuming without finding that Respondent was economically justified in dis- continuing the fabrication of new tools, I am convinced that Respondent could not legally avoid its duty to bargain with the Union as exclusive representative of its toolroom employees while out on strike by unilaterally declaring that the appropriate unit for bargaining was no longer in existence. I am, therefore, constrained to find that the economic strike of toolroom em- ployees, which began on September 26, 1958, was prolonged and any settlement therefore precluded by the unfair labor practices of the Respondent when on and after December 2, 1958, it refused to attend any more meetings or negotiate further with Tool and Die Makers Lodge No. 78, International Association of Machinists, AFL-CIO, as the exclusive bargaining representative of all toolroom employees in the appropriate unit. Basically the issue here is the same as that in Tom Thumb Stores, Inc., 123 NLRB 833, where the Board found that an employer may not refuse to bargain for a traditionally appropriate unit upon the bare claim that such a unit is not appropriate. The distinction here, if any, is that Respondent admittedly refused to bargain for a unit of toolroom employees found and certified by the Board to be appropriate upon the bare claim that such unit was no longer in existence. Under the peculiar circumstances of this case, I find that the historical background and undisputed facts in this case fail to support any good-faith doubt 2 See, Inland Steel Company, 77 NLRB 1, enfd 170 F. 2d 247 (CA 7), cert denied 336 U S 960; W. W. Cross and Company, Inc v. N.L R.B., 174 F 2d 857 (C.A. 1) ; Weyerhaeuser Timber Company , 87 NLRB 672 ; United Shoe Machinery Corporation, Inc, et at, 96 NLRB 1309; Richfield Oil Corporation, 110 NLRB 3,,16 ; Niles-Bement-Pond Company, 97 NLRB 165; Atlas Storage Division, etc., 112 NLRB 1175. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Respondent with respect to the existence of an appropriate unit, and that such contention was a mere pretext to avoid, if possible, the obligation imposed by Section 8(a)(5) of the Act to bargain with the representative of its employees, as explained and defined in Section 8(d), subject to the provisions of Section 9(a) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The conduct of Respondent Company set forth in section III, above, occurring in connection with the operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent Company has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act . It will be rec- ommended that the Respondent , upon request, bargain collectively with Tool and Die Makers Lodge No. 78, International Association of Machinists , AFL-CIO, as the exclusive bargaining representative of all toolroom employees in the unit herein found to be appropriate for the purposes of collective bargaining . Having also found that settlement of the strike was prolonged and precluded by the unfair labor practices of Respondent on and after December 2, 1958 , it will be recommended that the Respondent, upon application , shall offer to all toolroom employees on strike on December 2, 1958, unless already reinstated, immediate and full rein- statement to their former or substantially equivalent position ,3 without prejudice to their seniority and other rights and privileges , dismissing, if necessary, any persons hired by Respondent on or after that date to perform tool- and die-making work, including tool-repair work; subject, thereafter, to the right of Respondent (if suffi- cient work to employ all strikers is not available ) to reduce its working force in the toolroom to a normal complement by laying off employees therein according to seniority or other nondiscriminatory procedure customarily employed in its business prior to the discrimination found herein . In which event , Respondent Company shall place the names of all strikers laid off, as aforesaid, on a preferential hiring list and recall them to work without discrimination prior to hiring any other persons to perform tool- and die -making work (including tool-repair work ) for which they are qualified . I shall also recommend that the Respondent make whole each of such employees for any loss of pay he may have suffered by reason of the Respond- ent's refusal , if any, to reinstate him in the manner herein provided by the payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period beginning 5 days after date of his application for such reinstatement and continuing to the date on which Respondent shall have offered such reinstatement, less net earnings 4 to be computed on a quarterly basis in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 and N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344. Earnings in one par- ticular quarter shall have no effect upon the backpay liability for any other such period. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Tool and Die Makers Lodge No. 78, International Association of Machinists, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act, as amended. 2. "All toolroom employees of the Respondent, who are engaged in making, assembling , erecting , dismantling and repairing of machinery, tools, dies , jigs and fixtures, and equipment and/or parts thereof, of all descriptions , but excluding office clerical employees, guards, professional and supervisory employees as defined in the Act as amended, and all other employees of the Company" constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(c) of the Act, as amended. 3. At all times since certification by the Board on November 1, 1954, the Union has been and now is the duly appointed and exclusive representative of all employees s See: The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 6 See : Crossett Lumber Company, 8 NLRB 440, 497-498. BONNAR-VAWTER, INC. 127 in the aforesaid appropriate unit within the meaning of Section 9(a) of the Act, as amended. 4. By failing and refusing at all times since May 29, 1958 , to bargain in good faith with Tool and Die Makers Lodge No. 78 , International Association of Machinists, AFL-CIO, as the exclusive bargaining representative of employees in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(1) and (5) of the Act, as amended. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act, as amended. [Recommendations omitted from publication.] Bonnar-Vawter, Inc. and Rockland Printing Specialties & Paper Products Union, Local 643, a/w International Printing Press- men & Assistants Union of North America and S. Pearce Holton II. Cases Nos. 1-CA-2896 and 1-CA-2926. September 29, 1960 DECISION AND ORDER On February 25, 1960, Trial Examiner John F. Funke 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 National Labor Relations 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 that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner. 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 Bonar-Vawter, Inc., its officers, agents, successors, and assigns, shall : 'Respondent excepted only to the remedy recommended by the Trial Examiner. There- fore, in the absence of other exceptions, we adopt , pro forma, the Trial Examiner's find- ings of fact, his analysis of applicable legal precedents , as well as his legal conclusions with respect to the substantive issues of this case . We find without merit the Respond- ent's exceptions to the remedy recommended by the Trial Examiner. 129 NLRB No. 20.