California Girl, Inc.

CALIFORNIA GIRL, INC. 209 rector is instructed to issue a certification of representatives to the labor organization selected by the majority of the employees in voting group 2 or in the pooled group, as the case may be, which the Board, in such circumstances, finds to be a unit appropriate for the purposes of collective bargaining. [Text of Direction of Elections omitted from publication.] c The Employer contends that two firemen , who are not currently working, should be eligible to vote. The Steelworkers took no position . The record shows that the two men are laid off each spring and rehired each fall . The Employer's secretary-treasurer stated at the hearing that they will be recalled this year. We find that the two firemen are eligible to vote. California Girl, Inc. and Local 84, International Ladies' Garment Workers' Union. Case No. 21-CA-3808. October 3, 1960 DECISION AND ORDER On May 17, 1960, Trial Examiner William E. Spencer 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 the General Counsel and Respondent filed briefs. The Board 1 has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prej- udicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the Trial Examiner's findings,2 conclusions,' and recommendations. " 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]. 2 The Trial Examiner drew a parallel between the conduct of the Respondent Employer's negotiator in this case , and the similar conduct of the same negotiator in Duro Fitting8 Company, 121 NLRB 377, a prior case involving a different employer. We do not rely on, nor do we read the Trial Examiner's references to the facts of the Duro case as an indica- tion that he relied on, those facts as evidence of the instant Respondent's refusal to bar- gain in good faith. We adopt the Trial Examiner's findings because they are adequately supported by a preponderance of reliable evidence in the record in this case, and we rely on the Duro case only as a legal precedent for our ultimate conclusion herein. 8 The Trial Examiner found that "on and after August 3, 1959," the Respondent vio- lated the Act by refusing to bargain with its employees' statutory bargaining representa- tive in the appropriate unit. As the Respondent engaged in a course of conduct, the totality of which failed to comply with the statutory requirement of good-faith bargaining, we find that the violation of 'Section 8(a) (5) and (1) commenced on August 5, 1959, the date on which the Respondent and Union met for their first bargaining session. 129 NLRB No. 21. 586439-61-vol. 129-15 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in the 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, California Girl, Inc., Los Angeles, California, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively in good faith with Local 84, International Ladies' Garment Workers' Union, as the exclusive bargaining representative of its employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. (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 Local 84, International Ladies' Garment Workers' Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities except to the extent that such rights 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 in good faith with Local 84, International Ladies' Garment Workers' Union as the exclusive bar- gaining representative in the appropriate unit, with respect to rates of pay, wages, hours of employment and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its place of business in Los Angeles, California, copies of the notice attached hereto marked "Appendix." a Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by an authorized representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and maintained by it for a period of 60 days there- after in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. 4 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." CALIFORNIA GIRL, INC. 211 (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 herewith. 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, upon request, bargain collectively in good faith with Local 84, International Ladies' Garment Workers' Union, as the exclusive representative of all our employees in the unit described below, with respect to rates of pay, wages, hours of employment, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. The appropriate bargaining unit is: All cutters, the bundlegirl and the patternmaker, including the head cutter, employed at our Los Angeles, California, plant, excluding maintenance employees, shipping and office employees, professional employees, and all other production employees, guards, and supervisory employees. WE WILL NOT, by refusing to bargain in good faith with Local 84, International Ladies' Garment Workers' Union or in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist said Union, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, and to refrain from any and all such activities, except to the extent that such rights 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. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named or any other labor organization. CALIFORNIA GIRL, 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. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE In this proceeding, heard before the duly designated Trial Examiner in Los Angeles, California, on February 29 and March 1, 1960, California Girl, Inc., the Respondent herein, was charged with a refusal to bargain with Local 84, Inter- national Ladies' Garment Workers' Union, herein the Union, in violation of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. All parties participated in the hearing and subsequent thereto, on or before April 20, the General Counsel and the Respondent, respectively, 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 California Girl, Inc., is a California corporation with its principal office and place of business in Los Angeles, California, where it is engaged in the manufacture, sale, and distribution of dresses. In the conduct of its operations during a 12-month period preceding issuance of the complaint herein, it shipped products valued in excess of $50,000 to points outside the State of California. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Preliminary findings of fact: On July 9, 1959, pursuant to election results, the Union was certified as bargaining representative of Respondent's employees in the following appropriate unit: All cutters, the bundlegirl and the patternmaker, including the head cutter, of Respondent employed at its Los Angeles, California, plant, excluding mainte- nance employees, shipping and office employees, professional employees, and all other production employees, guards, and supervisory employees. There are only some 4 or 5 employees in the bargaining unit out of a total of some 40-odd persons of nonsupervisory status employed by the Respondent. After the election but prior to its certification, the Union requested a bargaining conference and was told by Mrs. Edwin Selvin, the Respondent's negotiator, that no meetings could be held until after the certification. Following the certification, on July 15, the Union, by telegram duly received by the Respondent, again requested a bargaining conference. Respondent replied by letter over the signature of its Secretary-Treasurer Raymond Fahn, directing the Union to make arrangements for a conference with its negotiator, Selvin. In a telephone conversation between Selvin and the Union's representative, Sam Swartz, occurring about July 17, July 23 was agreed on as a date fora first meeting. The conference was not held, however, due to the fact that Selvin later informed Swartz that she would be unavailable for a meeting on that date. The Union then filed a charge of unfair labor practices against the Respondent. Shortly thereafter, Selvin inquired of Swartz why the charge had been filed and he replied that it was because the Union had not been able to arrange a bargaining conference, and believed that Selvin was "stalling." Selvin replied that she was not and would meet with the Union on August 5 if the charge of refusal to bargain was withdrawn. The Union agreed to withdraw the charge and did so. The first meeting was accordingly held on August 5. Other meetings followed on August 17, October 2, and 28. After the October 28 meeting the Union rested on a new charge of unfair labor practices and sought no further bargaining conferences with the Respondent. Tape recordings of the August 5, October 2, and 28 conferences, of which both the Respondent and the Union made recordings, were stipulated into evidence. Only the Respondent made a tape recording of the August 17 meeting and it was not produced because, according to Selvin, there was some mechanical difficulty in the recording which spoiled it. Selvin and John Ulene, a union negotiator, testified on the August 17 meeting. The August 5 meeting: No actual negotiations occurred at this meeting and, accordingly, it will be briefly summarized. The Union made a general oral state- ment of its bargaining objectives which, it stated, it would present in two categories: "bread and butter" and "administrative." Its objective was to reach agreement on the "bread and butter" items before negotiating on "administrative" proposals. CALIFORNIA GIRL, INC. 213 More specifically, it sought the Respondent's reaction to the following proposals: (1) a wage increase; (2) a reduction in hours without reduction in pay; (3) a health and welfare program; (4) paid holidays; and (5) a union-shop clause which would meet the requirements of the Act as construed by the Board. The Union's representatives explained to Selvin that instead of making specific demands on these items, which might prove unreasonable in the light of Respondent's economic situation, it would prefer first to hear what the Respondent would suggest in the proposed areas of bargaining. Selvin, apparently expecting a written contract pro- posal, expressed surprise and puzzlement at this approach. She agreed that she would canvass the matters broached by the Union with the Respondent and would be ready at a later meeting to give the Respondent's reaction to the five items pro- posed by the Union for a bargaining agenda. The August 17 meeting: This meeting also will be dealt with briefly because it is evident that it reflected few developments in negotiations of a nature critical to the issues which were not reflected in the October 2 meeting, of which we have the benefit of a tape recording stipulated to be an accurate rendering of that meeting. ,At the August 17 meeting, when asked if she had any proposals to make on the five items the Union had proposed for negotiation, Selvin again expressed puzzle- ment over the Union's failure to submit a written contract proposal and said that she had nothing to say and no "offers" to make on behalf of the Respondent. Ulene explained that in view of past experiences in negotiating with Selvin, it was thought that delays and long conferences might be avoided by submitting proposals in general language, thereby affording her an opportunity to confer with her client and make such offers as she considered reasonable. Selvin replied that she was not ready to make any offers. Ulene proposed canvassing each of the five items previously proposed for negotiations, and then proceeded to make the Union's proposals more specific. He proposed a 10-percent wage increase, reduction of working hours to 35 a week without an accompanying reduction in rate of pay, an 81/a percent contribution to a welfare retirement and severance fund, 6 paid holidays annually, and a union shop. Selvm replied that she could not agree to any of these proposals. She stated her reasons for her position on each. The discussion was interrupted when Selvin was called to the phone. When the conference was resumed, the Union reduced its demands as follows: It now proposed a 5-percent wage increase; a 371/2 hour workweek; and a 4-percent contribution to a health and welfare fund. It repeated its proposals of 6 paid holidays annually and a union shop. According to Ulene's credited testimony, Selvin replied to these modified proposals that she had discussed all these matters with her client and their decision on each was "no," and that she had no counteroffers to make. The meeting was adjourned and the Union thereafter again filed a charge of unlawful refusal to bargain against the Respondent. This charge, like the first, was withdrawn, and negotiations continued. The October 2 meeting: This conference opened with the Union restating its five bargaining objectives previously enumerated, and adding proposals for an arbitra- tion clause, a checkoff of dues, and a discharge clause. Selvin's position on the five items discussed in the previous meeting remained the same. On the issue of a wage increase she stated that it was the Employer's view that the wages now being paid its employees in the bargaining unit were fair and adequate. She specifically did not plead financial inability to pay the increase proposed by the Union. The reduction in the workweek and paid holidays proposed by the Union, she considered in the same category as a wage increase and accord- ingly rejected these proposals, giving as an additional reason that to grant these benefits in the bargaining unit would cause dissatisfaction among employees outside the unit. The following exchange across the bargaining table is illustrative of her position maintained throughout the negotiations: UNION: Have you come here prepared to negotiate a wage increase? SELVIN: I have come prepared to say that we're not going to give any wage increase. Not as yet. . . These are a few people in an island of a larger group of people. A general wage increase to these people would lead the other people to be very dissatisfied and very unhappy and they'd say you gave them a 5 percent increase to these people, now give us a 5 percent increase and the Company would be embarrassed not to do it. So the company feels that these people are being adequately recompensed for the work they do and the company has instructed me to reject any wage increase. UNION: These people are in a separate unit. SELVIN: That is correct. UNION: And the conditons of employment affecting them are not similar or the same as those affecting any other people employed by the company 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and they have to be treated on the merit and all I can think is you've come here prepared to do nothing about it. SELVIN: No, I've come prepared to negotiate it and to reject it. The fact is- UNION: You've come to reject, what are you going to negotiate; your rejection? SELVIN: We've rejected it. We have listened to the proposal and we dis- cussed it and whether or not we want to do it, and we've decided we don't. UNION: In other words, then, I take it, that you're not willing to grant any condition, any improvement in the conditions of employment of these people because it might have some effect on other people. SELVIN: I have not said that. If we only had these people to consider, if that was all, it's very possible that we would grant a holiday or two but as long as we have other factors to consider, we, the company doesn't ... . Further discussion of the wage issue centered on the granting of merit increases. The granting of such increases may be construed as a counterproposal to the Union's demands for wage benefits, presented by Selvin in this manner: "We would like to write into a contract that we have the right to give merit increases when and if they are needed without negotiating through the Union." To this the Union responded that it was ready to negotiate a merit increase program based on objective criteria, but on this point also Selvin was adamant. The following exchange of views is enlightening: SELVIN: I'm suggesting that you recognize the fact that the company has the knowledge and the only knowledge that could possibly be of value in giving the merit increases. Therefore I am suggesting that we, I'm proposing that we write into the contract a clause in which the Union in effect waives its right to negotiate merit increases. I say that a merit increase has to be at the discretion of the employer. If he wants to give a merit increase he has to be willing to do it. UNION: Even though the worker has met all the objective criteria? SELVIN: That is right. There may be some other factors, the wage may already be at a scale that fully takes care of all of the ... . To the Union's proposal to negotiate a maximum wage scale as a ceiling over merit increases, Selvin replied: We will negotiate with you and give you a proposal, a counterproposal based on minimum scales. Now a maximum scale is based on merit and that I'm proposing to you that we have control of the merit increases. Not the normal review of increases but anything that falls within the classification of a merit increase, the employer alone. To the Union's proposal for a health and welfare program, to which the Respond- ent would contribute an amount equal to 4 percent of the employee' s wages, Selvin gave a negative response. Admitting that there was in existence a health and welfare program covering supervisory personnel, she contended, as she had in her response to wage proposals, that any health and welfare program benefitting employees in the bargaining unit would cause dissatisfaction among employees out- side the unit, not participating in the benefits. The only health "program" then existing among nonsupervisory personnel was the inclusion of such employees on a voluntary basis in a Blue Cross group to which the Respondent made no contribution. To the Union's proposal of an arbitration clause, first proposed at this meeting, Selvin replied, "No, we're not going to grant an arbitration clause. Now do you want to go into the reasons?" To the Union's proposals of union-security provisions, Selvin's answer was simi- larly negative. The following is an exchange between the negotiators on the subject of the union shop: UNION: Well, you're opposed to union shop as a matter of principle or philosophy. SELVIN: No, I'm no different than you are. . . You have a philosophy, I also have a philosophy and we would be rather be coming into a vacuum if we didn't have some sort of thinking. Now my thinking naturally influences my bargaining, yours very definitely does your. You want something and I have reasons why I am opposed to it. Now I'm willing to tell you all my reasons if CALIFORNIA GIRL, INC. 215 you wish to listen for 2 hours and 25 minutes, I'll tell you some of the reasons why I'm opposed to a union shop. UNION: The point is I am pro-union shop and I am willing and my associate is willing to negotiate something less than a union shop. Are you willing to negotiate something more than an open shop? SELVIN: In this case no. UNION: In any case? SELVIN: I'm only willing to agree to recognize the union as the bargaining representative and to agree that there will be no discrimination as between people who exercise their lawful right to join a union and those who exercise what we consider an equally lawful right to refrain from membership in a union and there are people in this plant, in this particular plant, I have been told that at least two people will quit that plant and seek work elsewhere if things work out if we are ever required to ... . To the Union's proposal for a checkoff of dues, Selvin stated, preliminary to a discussion of the issue: "But I'm going to tell you that for the same reasons that we're going to reject Union Shop that we reject the check-off on dues." To the Union's argument that the checkoff it proposed would be voluntary, Selvin replied that it would not be voluntary in the case of an employee who after affiliating with the Union changed his mind and withdrew. Her position remained unaltered when the Union proposed that the employee might withdraw his checkoff authoriza- tion on 7 days' notice. On this modified proposal the following exchange occurred: SELVIN: We, we're not going to interfere in any way . . . this employee may not even want us to know whether he is a member of the Union. We're not going to invade his privacy. If these people want to belong to a Union, alright let them belong to the Union but we're not going to have any part of it or do anything about checking off dues.. . UNION: That's ridiculous, Mrs. Selvin, with all due apologies to you, any- body who wants to be a member of the Union and doesn't want the Employer to know it will come to us and tell us, "Look, I want to be a member of the Union. I don't want my Employer to know it, so therefore, please, I don't want a check-off." SELVIN: On the other hand if we don't wish to interfere with the union membership we don't want to interfere even in the remotest manner and a check-off of these dues is something we don't wish to assume. UNION: We're asking you as a matter of convenience to check off the dues. SELVIN: We don't wish to grant that convenience, we don't wish to be respon- sible for checking it off and sending the dues to the Union. To the Union's proposal for a maintenance-of-membership clause, Selvin replied in similar vein, "We're not willing to interfere in their [employees'] right to belong to a union or to refrain from belonging to a union . . Finally, with respect to a bulletin board in Respondent's plant for the posting of union notices to its members, this exchange occurred: UNION: How about a bulletin board on which we could post notices of union meetings? SELvIN: No sir. UNION: Union business. SELVIN: No. . . We don't have a bulletin board up in that department and I'm sure we don't UNION: We'll pay for the bulletin board. SELVIN: Well we don't . . . you have contact with your people without a bulletin board, you have adequate means to reach people without that. We don't feel that it will be helpful to have a union bulletin board. With respect to the Union's proposed discharge clause,' Selvin stated that she would make a counterproposal and the November 2 meeting closed with an agree- ment that Selvin would submit her counterproposals at the next meeting. The October 28 meeting: At this meeting Selvin presented her so-called counter- proposal in writing and most of the discussion centered on it. It was actually a proposal for a contract of 6 months' duration which would bring its expiration date close to the end of the Union's certification period. 3 This proposal was not developed with much detail but it appears that the Union wanted an agreement that the employer would not discharge an employee after an agreed-upon probationary period except on the basis of negotiated criteria. 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To the Union's proposals of a union shop and various other union-security meas- ures, Selvin counterproposed that the Respondent would recognize the Union as required by law, and would not discriminate against employees because of their union or nonunion affiliation, also as required by law in the absence of a valid union- shop contract. To the Union's proposals for a reduced workweek, Selvin counterproposed a con- tinuance of the 40-hour week in conformity with existing law. She told the Union's negotiators: "Well, you have proposed certain hours of work. . . . We, it's true we counterproposed what is the law and no more. That's what we are willing to do." While she made no counterproposal on wages and paid holidays, she adhered to the position that she had asserted from the first on these topics: no change in the status quo. To the Union's health and welfare proposals, she also adhered to her initial position: that the Respondent had nothing to offer further than the existing group health insurance established on a voluntary basis to which the Respondent made no contribution. Her counterproposal to the Union's demand for a discharge clause which would protect an employee following an agreed-upon probationary period from arbitrary discharge, may be said to be included in the following proposal headed "Company prerogatives": The rights of the Company in the operation and management of its business are recognized, and it is expressly agreed that the right to hire, promote, trans- fer, or discharge for just cause, to maintain the discipline and efficiency of employees, to determine the type of products to be manufactured, the schedules of production and work, the methods, processes and means to be used, are prerogatives of Management. Allied to this proposal was a proposal for grievance procedure, which may be regarded as her counterproposal to the Union's request for an arbitration clause. It provided that the employees in the bargaining unit should elect a chairman from among themselves, and that any employee in the unit who feels aggrieved may take up his grievance with the said chairman. Only in the event, however, that the griev- ance is not "inconsistent" with company prerogatives, as stated above, may the chairman "elect to take the matter up with the immediate supervisor of the employee who feels aggrieved, or the chairman may elect to submit the grievance to the repre- sentative of the Union. The union representative and the Company or the Com- pany's duly designated representative, shall then meet, at a time and place mutually agreeable, and shall attempt to adjust such grievance in fair and just manner." Other provisions of the "grievance procedure" were: all grievances must be dis- posed of within 10 days following their submission; no "outside arbitration" could be invoked by either party in the settlement of any dispute arising under the contract; the Union would be prohibited from conducting any union business on Respondent's premises and no union representative should visit the plant at any time except with the express permission of the Respondent; employees were granted the right of con- ferring with the Respondent on any matters affecting working conditions. To the Union's request for negotiations on arbitration, Selvin replied: "I'll talk and negotiate about anything you want to propose." The following colloquy ensued: UNION: Will you agree to arbitration in principle? SELVIN: I will not agree to arbitration in principle no; we've talked about. . UNION: So what's there to talk about? SELVIN: If you want to propose it more specifically than you did, why you're free to do it. UNION: If you are willing to agree to arbitration as a terminal step in the processing of a grievance I will give you concrete proposals as to who the arbitrator shall be, how a complaint is brought to him, when he shall hold the bearing, what notice there shall be of a hearing, what parties must participate, the entire machinery, of how the arbitration machinery works. I'll give you concrete proposals on every item of it, but if you're not going to accept arbitra- tion machinery in principle what's the sense of wasting time? SELVIN: Well I think you're right. We're not going to accept it in principle. To the Union's query whether the Respondent would enter into any agreement which did not contain the proposed "Company prerogatives" clause, on which-as has been seen-the proposed grievance machinery was based, Selvin concluded: We will not yield our right to hire our own employees, we will not yield our right to discharge for just cause, we will not yield our right to maintain the discipline and efficiency of employees and to determine the type of product to CALIFORNIA GIRL, INC. 217 be manufactured, the schedules of production and work, the methods, processes and means to be used. Now . . . it does not necessarily need to be spelled out in the contract but in essence those, we are not willing to yield those, to make those concessions. I consider for us to give you any part of our right to hire promote transfer and discharge or to maintain the discipline in our own factory would be asking us to make a concession and we are not obligated to do so that I known anything about. To this the Union replied: Now we want to negotiate the question of transfer and discharge. We want to negotiate on the question of discipline so that if an employee thinks he has been disciplined unjustly he shall have recourse and that the employer shall not be the sole determinant of whether the discipline is warranted or not warranted. We want also that any rules to be set up shall be made explicit and shall be the result of mutual negotiations between the employer and the Union. On these matters, matters of promotion, transfer discharge discipline and the determina- tion of efficiency-now by that I don't mean that insofar as efficiency of em- ployees goes, we don't mean to say that we insist the employer keep inefficient workers, but we do mean that whether a worker is efficient or not shall not be subject to the unilateral decisions of either party, but that there shall be a grievance procedure whereby whether or not the worker is efficient can be ade- quately tested and determined by a forum. Selvin's only response was to recount an occasion under another contract whereby, according to her, the employer was required to retain two employees he regarded as inefficient because the contract provided for divided authority between the employer and the union in the matter of discharges. There were accordingly, no actual nego- tiations on any of the matters put forward by the Union as stated above. Other proposals contained in Selvin's written offer of a contract were: That employees might be granted a leave of absence "at the discretion of the employer" upon complying with stated procedures; that the employees should receive "Report- ing Pay" as required by law; that there should be "no general lockout, general strike, individual shop strike, shop or Union meetings called during working hours, or shop stoppage for any reason or cause whatsoever, and there shall be no individual lock- out, strikes or stoppage pending the determination of any complaint or grievance"; and "Any working conditions existing at the time of the execution of this Agreement more favorable to the employees than the terms of this Agreement shall be continued." The meeting closed without agreement having been reached on any matter that constituted an issue between the parties. As Selvin stated, she had said "No" to the Union's proposals and had afforded them an opportunity to say "No" to hers. No further meetings between the parties have been held and none requested. Concluding findings: This is not the first time we have encountered the redoubt- able Mrs. Edwin Selvin as the negotiator for an employer charged with an unlawful refusal to bargain. In Duro Fittings Company, 121 NLRB 377 (a decision of which I take official notice), it was found that the employer refused to bargain, inter alia, on proposals of union security and merit wage increases. In that case it was found that Selvin, representing her employer, stated to the union negotiators that she would not under any circumstances execute a contract containing union-security provisions and would represent no employer who was inclined "in any way to grant any sem- blance of union security." In an address to her client's employees she declared that union security was not a mandatory subject for collective bargaining, although it was established at the time she made these remarks, and long before, by both Board and court decisions, that the contrary was true .2 Her position on merit increases in the Duro case was equally adamant and was articulated by both herself and her client in remarks addressed to the latter's employees, when Selvin declared her client would "accept no contract except as it includes a merit system for the payment of wages," and the latter declared, "I will always reserve the right to give anybody an increase in pay at any time I feel they deserve it.... . Of course, each case is decided on its own facts, and if the facts of the instant case show that Selvin has profited from her experience in Duro and has entered upon a course of bona fide bargaining on proposals for union security, merit in- creases, and other mandatory subjects of collective bargaining, this Respondent is not to be prejudiced by her adamant, predetermined position in such matters in a 3 NLRB v Andrew Jergens Co , 175 F. 2d 130, 134 (C A. 9) ; N L.R B. v. W. T. Grant Company, 199 F. 2d 711 (C.A. 9) ; N.L.R.B. v. Bradley Washfountain Co., 192 F. 2d 144, 145 (C.A. 7). 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prior case. Neither do we, in evaluating her good faith here, have to ignore her declaration of interests in the earlier case when she declared that her opposition to all forms of union security is common knowledge to all who are acquainted with her activities in the Los Angeles area. As indeed it is. Questioned in the instant proceeding whether her position on such bargainable matters as union security had undergone change since the Duro decision, she testified, cautiously, that while there had been no change in her "philosophy" she would now do what she had previously stated she would not do-represent employers who had contracts containing union- security provisions. Further examination disclosed that she had on no occasion negotiated, in the first instance, a contract containing union-security provisions, and on one occasion when a client-employer bypassed her and executed such a contract she resigned as his negotiator. She did represent this same client at a later date and in the renegotiation or renewal of contracts containing union-security provisions which she did not negotiate in the first instance, she has represented employer clientele. Therefore her testimony that she is now willing to represent employers who have union-security provisions in their contracts with labor organizations, is literally true but tells us nothing of a change in her basic approach to bargaining on this issue. As will be seen, there are in fact marked similarities between her conduct as negotiator in the Duro case, and here. Before there had been any negotiations between this Union and this Employer, the Union had filed a charge of refusal to bargain because of what it viewed as "stalling" tactics on the part of Selvin. On learning that the charge had been filed, Selvin very promptly agreed to meet with the Union if it would withdraw the charge. Regardless of whether the filing of the charge was justified-and on the facts of this case alone I think it was not-she could not lawfully make the with- drawal of the charge a condition precedent to negotiations, but the charge was withdrawn and meetings were held and inasmuch as I am convinced of Selvin's willingness to meet with the Union at reasonable times I attribute no great signifi- cance to the point. At the first bargaining conference on August 5, the Union instead of coming forward with a specific contract proposal in writing, suggested improvements in five specified categories and requested Selvin to canvass the matter with her client and advise, at the next meeting, what the Respondent was willing to offer in these five categories. This may have been a somewhat novel approach but this Union had had prior experience with this negotiator and had decided that it would save time and extended conferences by this approach. Its proposals were nonetheless pro- posals because they were made orally and were phrased in general instead of specific terms sand there was nothing ambiguous about them. Nevertheless, when .the parties next met on August 17, Selvin again expressed puzzlement over the Union's failure to submit a written contract proposal and said in effect that she had no "offers" to make on the part of the Respondent. What she meant by this presently became quite clear when in response to the Union's more specific proposals in each of the five designated areas of bargaining, she responded with an unequivocal "No." It is obvious from her explanations of her position that she had indeed canvassed each of the five categories with her employer and that it had been decided before she came to this second conference that the Respondent would not agree to any change in its present scale and conditions of employment and would agree to no innovations. What is the significance of this? Selvin at these bargaining conferences and at the hearing herein and in her brief filed with me, emphasized by reiteration that she had thoroughly memorized that portion of the Act which states that the failure to yield a point or make concessions in bargaining does not constitute a refusal to bargain. She is of course entirely right in this. But the significance of the flat rejection of all union proposals in the five stated categories, even when those pro- posals were scaled down and liberalized, is that this rejection was decided upon before there had been any discussion whatever on any of the proposals. Without hearing the Union's arguments, without knowing the extent and scope of the Union's demands, she and her employer-client had decided to reject everything and give nothing. Monolithic in her opposition to every form of union advancement into what she obviously regards as the private preserves of employers,3 granite-firm, immovable, and unsubtle as an alp, she took her place at the bargaining table to "negotiate and reject"-to use her own words-serenely unaware, apparently, despite her experience in Duro, that a predetermined and fixed resolution to reject is not compatible with the term "negotiate," no matter how much and how long she 8 As Illustrated by her proposals on merit Increases and "company prerogatives " CALIFORNIA GIRL, INC. 219 listened to opposing arguments and repeated her predetermined rationalizations of her position.4 Two further conferences were held and there was discussion of all the issues raised by proposals and counterproposals but Selvin never varied from the position she took at the outset of the second conference-that the Respondent would agree to no change in existing conditions, with the exception of merit wage increase. Attention is directed ,to her position on merit increases which she may have construed as a counterproposal to the Union's wage demands. After rejecting every form of proposed wage increase, including the proposal of paid holidays, she made it known that the Respondent was willing to continue its practice of merit increases provided the Union would waive its right to negotiate such increases or to participate in any way in their effectuation! To every proposal for negotiating objective criteria for the granting of such increases, she gave a prompt and emphatic "No," declaring, "I say that a merit increase has to be at the discretion of the employer. If he wants to give a merit increase he has to be willing to do it." She would allow for no review of the employer's determinaiton in the matter, commenting, "The accuracy [of the employer's determination] you'd just have to take our word for it." There is no significant change here from the position she took on merit increases in the Duro case. Her idea of conforming to that decision was to give the Union the alternative of depriving the employees of any wage increase whatever, including merit increases, or waiving its right to negotiate such increases, to review them, or in any way par- ticipate in their effectuation. A clearer case of lip service to a principle would be hard to find. Again, the vice in her position was not her failure to yield or to grant a concession, but that it was a predetermined position, arrived at in consultation with her employer-client before there had been any discussion of the matter at the bargaining table and before the Union's proposal for establishing objective criteria for a determination of merit increases had been made. The posture of the issue with respect to union-security provisions, is much the same. From Duro, Selvin profited enough not to proclaim publicly, contrary to fact, that union security was not a mandatory subject for collective bargaining, nor to assert that she would represent no employer "inclined in any way to grant any semblance of union security," but except for such outright admissions of refusal to bargain on the subject the parallel between her position in that case and this one is clear. To every proposal of union security she answered a prompt and emphatic "No." She not only forthwith rejected a proposal for a union shop but was equally adamant on a proposal for a voluntary checkoff of union dues even when the Union modified its initial proposal by suggesting a checkoff authorization revokable on 7 days' notice. Her answer was that to agree to any sort of checkoff would be an unwarranted invasion of the employee's privacy! And while she testified that she canvassed all union proposals with her employer-client, Fahn, with whom she was supposed to confer, testified that he had no recollection of her having mentioned maintenance-of-union membership in their discussion of the Union's contract pro- posals. Finally, here as in Duro, as a counterproposal to all union proposals for union-security provisions, Selvin agreed that it might be written into a contract that the Respondent would recognize the Union and would not discriminate against any employee because of membership or nonmembership in a labor organization-all as required by law. True, in the course of the four meetings there was a good deal of discussion of union security and on the issue of the union shop Selvin informed the Union's negotiators that if they wished to hear her she could talk on the subject for 2 hours and 25 minutes. They wisely declined the offer. With her many years of advocating the open shop in many forums before she became a negotiator for employers, she could no doubt have consumed this much time and more with an expression of her views and the Union's negotiators would have had to be as mad as King Canute to think there was any likelihood of accomplishing a reversal or modification of those views. Selvin's total unreceptiveness to any and all forms of union security, rooted deep in her many years of public advocacy of the open shop, obviously deprived the Union of a legitimate bargaining lever by which it might at least hope to win concessions on other proposals if not in the matter of union security itself. While the Act does not require that either party yield to the other's proposals, there must be at least a capacity and potentialiy for yielding and a willing- ness to reach accord in a manner mutually beneficial or there can be no bona fide collective bargaining. 4 "Enforcement of the obligation to bargain collectively is crucial to the statutory scheme. And, as has long been recognized, performance of the duty to bargain requires more than a willingness to enter into a sterile discussion of union-management differences." N.L.R.B. v. American National Insurance Co., 343 U.S. 395. 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This Respondent's approach to bargaining with this Union is further reflected in ,Selvin's insistence that to grant any benefits to employees in the bargaining unit not enjoyed by employees outside the unit, would cause dissatisfaction among the latter with resulting "embarassment" to the Respondent. She admitted that if there were only the bargaining unit to consider, the Respondent might be willing to grant a paid vacation of a day or two. The practical effect of this insistence, consistently main- tained by Selvin from the outset of negotiations, was to pitch bargaining on a plant- wide level, and thereby to deprive employees in the bargaining unit of the right to have their bargaining demands weighed and considered on their merits with respect to conditions existing in the unit, and to place on the Union the onus of showing that its proposals should have plantwide application although it had no representative capacity outside the unit for which it was certified. To no avail the Union pleaded that there were conditions of employment peculiar to the unit, something which Selvin did not deny. Withal it is not difficult to probe to Respondent's real concern in the matter. Here was a unit of only a few employees, characterized by Selvin as "a few people in an island of a much larger group of employees," who had chosen to be repre- sented in collective bargaining by a labor organization , a focus of infection which if favored might very well spread until the entire body of employees was contami- nated and which, therefore, must be excised at all costs. Selvin's surgical skill for performing such a delicate operation has been amply demonstrated, and is further exemplified by her offer of is contract of only 6 months' duration. From her remarks in bargaining conferences it appears that certain employees who voted for the Union had left Respondent's employ and others had voiced their objections to union representation. By the end of the certification year, provided no benefits had been granted in the interim , she could reasonably expect to be in a favorable position to challenge the Union's 'representative status. This objective is further exemplified in her proposal for recognition of company prerogatives and a grievance procedure which could function only outside the limits of the said prerogatives , a grievance procedure so restricted that it would have the effect of depriving employees in the unit of most of the fruits of union representation. What Selvin was actually pro- posing was that the Union largely divest itself of its representative capacity for if it had agreed to her proposals it would have waived its rights effectively to represent the employees to whom it owed the duty of representation. Her contract offer in fact offered a good deal less than the Union could claim as a matter of law outside contractual commitments.5 As Selvin remarked, she had said "No" to all the Union's proposals and in fulfillment of her obligations to bargain, as she saw them, now offered them an opportunity to say "No" to hers, having made certain that her own proposals were of such nature and scope that no labor organization which respected the obligations inherent in its representative capacity could say anything but "No." Upon consideration of all the evidence , it is found that the Respondent through its negotiator, Mrs. Edwin Selvin, in violation of Section 8(a)(1) and (5) of the Act, refused at all times material herein to bargain in good faith with the Union, the duly certified representative of its employees in an appropriate unit, and thereby interfered with, restrained , and coerced its employees in the exercise of rights guaranteed them in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent engaged in unfair labor practices by refusing on and after August 3, 1959, to bargain with the Union, the statutory bar- gaining representative of its employees in an appropriate unit, it will be recommended that on request the Respondent bargain with the Union on all proposals which raise 5In her proposal on "company prerogatives" Selvin apparently overlooked the fact that all matters affecting the tenure of employment and working conditions of employees in the bargaining unit , were mandatory subjects of collective bargaining and that so long as the Union's representative status was maintained the Respondent had no right to act unilaterally in such matters , absent an impasse in collective bargaining. INTERNATIONAL TELEPHONE & TELEGRAPH CORP ., ETC. 221 bargainable issues, and, if an understanding is reached , embody such understanding in a signed agreement. Respondent's refusal to bargain in fulfillment of an obligation which "is crucial to the statutory scheme," convinces me that this Respondent has not yet accepted the basic mandates of the Act, from which it is inferred that there is a likelihood of the commission of other unfair labor practices unless the remedy be made coextensive with the threat. It therefore will be recommended that the Respondent cease and desist from yin any manner infringing upon the rights of employees guaran- teed in Section 7 of, the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. 2. All cutters, the bundlegirl and the patternmaker, including the head cutter, of Respondent employed at its Los Angeles , California, plant, excluding maintenance employees, shipping and office employees , professional employees, guards, and supervisory employees , constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 3. The Union was on July 9, 1959, and at all times since has been 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. 4. By refusing on and after August 3, 1959, to bargain collectively with the Union as exclusive representative in the aforesaid appropriate unit, California Girl, Inc., has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 5. By the said refusal to bargain, California Girl, Inc., interfered with , restrained, and coerced its employees in the exercise of rights guaranteed them in Section 7 of the Act, and thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] International Telephone and Telegraph Corporation , Industrial Products Division and International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO. Case No. 21-CA-3939. October 3, 1960 DECISION AND ORDER Upon a charge duly filed by the International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO (herein called the UAW), the General Counsel of the National Labor Relations Board, by the Regional Director for the Twenty-first Region, on April 25, 1960, issued against the Interna- tional Telephone and Telegraph Corporation, Industrial Products Division (herein called the Respondent), a complaint alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before a Trial Examiner were duly served upon the Respondent and the Charging Party. 129 NLRB No. 24.