H. E. Fletcher Co.

474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have to close the plant if Local 140 won the. election ; and that he would see to it that the employees got as many or more holidays as could be obtained by Local 140. The above facts are based upon the credited testimony of Williams, Davila, Dil- lard, and Sykes. Testimony to the contrary and denials of Norman Belfer are not credited . Froimowitz did not appear at the hearing as a witness . I find that in his conversation with Davila, Froimowitz was acting as Belfer's agent. The Respondent therefore was responsible for the statement made by him at the time. I find that the above statements of Belfer are violative of Section 8(a)(1) and (2) of the Act. Froimowitz' statement to Davila is also found to be violative of Section 8 (a)(1) and (2) of the Act, since it, is clear that he was offering him a day off with pay if he did not appear at the election to vote for Local 140. Indirect- 1y, of course, this constituted support for Local 601. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connec- tion with the operations of 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 commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that the Respondent cease and desist there- from and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. Local 140 and Local 601 are labor organizations within the meaning of Section 2(5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By promising benefits to employees if they voted for Local 601 and against Local 140 the Respondent has rendered assistance and support to Local 601 and' thereby has engaged in unfair labor practices within the meaning of Section 8(a)(2). and (1 ) of the Act. 4. 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.] H. E. Fletcher Co. and Local 186, United Stone & Allied Prod- ucts Workers of America, AFL-CIO. Case No. 1-CA-3134. May 12, 1961, DECISION AND ORDER On July 29, 1960, Trial Examiner Louis Libbin 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. The Trial Examiner also found that the 'Respondent had not engaged in certain other unfair labor prac- tices and recommended that the complaint be dismissed with respect to such allegations. Thereafter, the Respondent and the General 1 131,NLRB.N6. 71., H. E. FLETCHER CO. 475 Counsel each filed exceptions to the Intermediate Report and sup- porting briefs. 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 Trial Examiner's findings, conclu- sions, and recommendations. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Respondent, H. E. Fletcher Co., West Chelmsford, Massachusetts, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of em- ployment, with Local 186, United Stone & Allied Products Workers of America, AFL-CIO, as the exclusive representative of all its em- ployees in the following appropriate unit : All production and main- tenance employees of Respondent, engaged in the quarrying, manufacturing, and processing of granite, exclusive of office clerical employees, over-the-road truckdrivers, guards, professional em- ployees, and all supervisors as defined in the Act. (b) In any manner interfering with the efforts of the above-named Union to bargain collectively with Respondent. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Local 186, United Stone and Allied Products Workers of America, AFL-CIO, as the exclusive representative of all the employees in the above-described appropriate unit with respect to rates of pay, wages, hours of work, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. (b) Post at its plant in West Chelmsford, Massachusetts, copies of the notice attached hereto marked "Appendix." Copies of said notice to be furnished by the Regional Director for the First Region, shall, after being duly signed by an authorized representative of the Respondent, be posted immediately upon receipt thereof, and be main- tained by it for a period of 60 consecutive days thereafter in con- IL 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." 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. (c) Notify the Regional Director for the First Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleged that Respondent's unilateral granting of wage increases from August 24, 1959, to February 24, 1960, violated Section 8 (a) (1) of the Act. CHAIRMAN MCCULLOCH and MEMBER BROWN 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 Labor-Manage- ment Relations Act, we hereby notify our employees that : WE WILL, upon request, bargain collectively with Local 186, United Stone & Allied Products Workers of America, AFL-CIO, as the exclusive representative of all employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and embody in a signed agreement any understanding reached. The bargaining unit is: All production and maintenance employees engaged in the quarrying, manufacturing, and processing of granite, exclusive of office clerical employees, over-the-road truckdrivers, guards, professional employees, and all supervisors as defined in the Act. WE WILL NOT in any manner interfere with the efforts of the above Union to bargain collectively on behalf of the employees in the said appropriate unit. H. E. FLETCHER CO., 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. H. E. FLETCHER CO. INTERMEDIATE REPORT AND RECOMMENDED ORDER 477 STATEMENT OF THE CASE Upon charges filed by Local 186, United Stone & Allied Products Workers of America, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, by the Acting Director for the First Region (Boston, Massa- chusetts) issued his complaint, dated April 1, 1960, against H. E. Fletcher Co., herein called the Respondent. With respect to the unfair labor practices, the com- plaint alleges, in substance, that Respondent violated Section 8 (a) (5) and (1) of the Act by refusing to bargain in good faith with the Union, which had been certified by the Board as the exclusive representative of employees in a specified appropriate unit, in that it made no sincere effort to reach agreement on the subject of wages and in that it unilaterally granted individual wage increases to various employees in the appropriate unit. In its duly filed answer, Respondent admits the appropriateness of the unit and the certification of the Union as exclusive bargaining representatives by the Board on September 12, 1958, but denies the commission of any unfair labor practices. Respondent further admits, in substance, that it unilaterally gave certain wage in- creases to individual employees pursuant to its established practice and avers that this practice was known to the Union which acquiesced in such conduct. Respondent also admits that it refused to bargain with the Union on and after February 10, 1960, because it doubted that a majority of the present employees in the unit wished to be represented by the Union. Pursuant to due notice, a hearing was held on May 9-10, 1960, at Boston, Massa- chusetts. All parties were represented at the hearing and afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to present oral argument at the close of the hearing, and thereafter, to file briefs, as well as proposed findings of fact and conclusions of law. After the close of the hear- ing, the parties filed briefs which I have fully considered. Respondent's motion to dismiss the complaint, made at the conclusion of the hearing and upon which I reserved ruling, is hereby granted in part and denied in part, in accordance with the findings and conclusions made below. Upon the entire record I in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT H. E. Fletcher Co., a Massachusetts corporation, is engaged in the quarrying and processing of granite and related products at West Chelmsford, Massachusetts, where it maintains its principal office and place of business. During the year 1959, Respond- ent sold and shipped products from its quarry, valued in excess of $50,000, to points outside the Commonwealth of Massachusetts. Upon the above admitted facts, I find, as Respondent admits in its answer, that Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Respondent stipulated at the hearing, the record shows, and I find , that Local 186, United Stone & Allied Products Workers of America, AFL-CIO, herein col- lectively referred to as the Union, are each labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The sole issue in this case is whether, after a settlement agreement, Respondent engaged in conduct which constituted a refusal to bargain with the Union in violation of Section 8(a)<5) and (1) of the Act. A. The relevant facts 2 1. Events preceding the settlement agreement On September 12, 1958, the Union, having been selected by a majority of the employees in an appropriate production and maintenance unit in a Board-conducted I I hereby note and correct the following obvious error in the typewritten transcript of testimony ; p. 286, line 11, "September" is corrected to read "October " 2 Unless otherwise indicated, the findings in this section are based on evidence which is either admitted or not materially disputed. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election, was certified by the Board as the exclusive collective-bargaining repre- sentative'of all the employees in said unit. The Union presented a proposed con- tract at the first negotiating meeting held,about September 30, 1958. With respect to wages, the contract proposed among other things, that "hourly wage rates be increased fifteen cents (15) per hour over and above the present maximum rate paid in each job classification and such new rates shall remain in effect during the life of this Agreement." Further meetings were thereafter held and on February 19, 1959, the Respondent submitted a draft of a contract as a counterproposal, which was subsequently rejected by the union membership. At a subsequent meeting held on April 15, 1959, Respondent submitted another draft of a contract as a second counterproposal. The Union rejected Respondent's counterproposal on wages and, 2 days later, on April 17, 1959, called a strike which lasted about 4 months. 2. The Settlement Agreement On July 6, 1959, while the strike was still in progress, the Regional Director of the Board and the Respondent entered into a settlement agreement, disposing of charges which had been filed by the Union and had alleged violations of Section 8(a)(1), (2), (3), and (5) of the Act. One of the provisions of the settlement agreement, with which Respondent agreed to comply, required Respondent to bargain collectively with the Union, upon request. By the terms of the settlement agreement, performance thereunder by Respondent was postponed until after receipt of a letter from the General Counsel of the Board, dated August 4, 1959, approving the settle- ment agreement. Thereafter, notices pursuant to the settlement agreement were posted by Respondent on August 13, 1959, about which time the strike was terminated. 3. Meetings and contacts between the Union and Respondent after August 4, 1959, the effective date of the settlement agreement (a) The negotiating meeting of September 3, 1959 This was the first collective-bargaining meeting which was held after the effective date of the settlement agreement. The Respondent was represented by Attorneys John Carleton and Warren D. Oliver; the Union was represented by Attorney Samuel Angoff, who acted as chief spokesman, by Mr. Keenan, who was the Local's president, and by a Local union committee of 5 or 6 employees. A Federal mediator and a State conciliator were also present. Most of the discussion during this meeting was devoted to the problems relating to the job placement of returning strikers pursuant to the terms of the settlement agree- ment. No specific contract proposals were discussed at this meeting. Mr. Angoff did point out that he believed that the reason for the failure of a number of strikers to return to work at the end of the strike was the low wage rate paid by the Respond- ent and suggested that a 50-cent an hour increase would bring the men back to the plant. Mr. Oliver replied that the Company was of the opinion that economic reasons were not the principal factors in the failure of some striking employees to return to work, but stated that he would explore this matter further with the Com- pany's officials during the noon recess, in the light of the arguments presented by the Union. When the meeting resumed in the afternoon, Oliver stated that he sand Carleton had discussed with company officials the matter of the reasons why many employees had failed to return at the end of the strike and that they were not persuaded that economic reasons was a material factor. Angoff suggested that if Respondent were unwilling to give a present wage increase, perhaps it would be willing to give a de- ferred increase to be effective in November. Oliver replied that he saw no reason why such a deferred wage increase was justified Angoff then suggested that the Union might consider a contract with a wage reopening clause. Oliver replied that that implied a rather long-term contract and that, he had not understood that either party was thinking in terms of a long-term contract. There was a discussion as to the extent to which the Company would be willing to pay for time lost by union officers, stewards, or employees in connection with handling grievances. Oliver also suggested that Respondent would like to get from its employees a nondisclosure ,agreement covering secret processes. - Angoff stated he would advise the Union not to agree to such an arrangement. During the meeting, Angoff asked if any individual wage increases had been given during the strike. Upon being advised that such was the case, Angoff requested that Respondent furnish the Union with a list of employees in the bargaining unit and the hourly wage rate of each just prior to the strike and as of September 3. At H. E. FLETCHER CO. 479 the end of the meeting, Angoff suggested that a meeting be arranged at the local level- between Keenan and some representative of Respondent to attempt to work out the problems in respect to the returning strikers pursant to the settlement agree- ment, with particular reference to seeing that they were sloted in the jobs to which they were entitled, and that another negotiating meeting be deferred until after this matter had been settled. .(b) Attorney Carleton meets with Keenan and Local committee on September 23 On September 23, 1959, Respondent's Attorney Carleton met with President Keenan and an employee committee of the Local and discussed the Union's claims of improper reinstatements of some 19 individual cases. Carleton took notes on each case and promised to consult with management to see what adjustments could be made. During the course of the meetings, which lasted about 3 or 4 hours, Keenan complained that there were some mistakes irr the list of the individual wage increases which Respondent had furnished to the Union on September 14 pursuant to Angoff's request at the meeting of September 3. (c) Telephone conversation between Attorney Carleton and Keenan on October 7 On October 7, 1959, Carleton telephoned to Keenan, at the latter's home, and asked whether the job transfers which Respondent had made had taken care of the Union's complaints with respect to the reinstatement of strikers. Keenan replied that the men were pleased with the results, that it was satisfacory to him and that things were going "pretty" well. Carleton suggested that, since Respondent had no established grievance procedure which was working satisfactorily, Keenan should call Carleton if any complaints or gripes arose , that he should do so before such complaints assumed any major proportion, and that Carleton would try to straighten them out. (d) The negotiating meeting of February 4, 1960 Pursuant to the Union's request, by letter dated December 24, 1959, for another collective-bargaining conference to negotiate a contract, such a meeting was finally arranged, in accordance with the established practice of the parties, through the services of Mr. Doherty of the State board of conciliation and arbitration for February 4, 1960. The Respondent was represented by Attorneys Carleton and Oliver; the Union was represented by Attorney Warren Pyle, of Angoff's firm, who was the spokesman for the Union . Also present were the international secretary- treasurer, Keenan, an employee committee of the Local , and representatives of the Federal and State conciliation services. Mr. Pyle went through Respondent's proposed contract, which had been sub- mitted as a counterproposal on April 15, 1959, item by item and stated what com- pany proposals the Union would accept, what modifications the Union wanted, and where the Company's proposals were not acceptable. This proposed draft consisted of 15 pages and contained XVI articles. This was the first time that the parties had gone through the Company's proposed contract in this manner. Article 1(A), a recognition clause following the wording of the certification, was acceptable to the Union. Article 1(B), containing a definition of the words "em- ployee" and "employees" as used in this agreement, was acceptable if the Company would delete the languages in the second paragraph which reads "as at the time in question." Article II, relating to the checkoff of union dues, was acceptable if the Company would change the proposed payroll deduction authorization to make it irrevocable for a 1-year period. At this point Pyle stated that he would modify the Union's demand for a full union shop to a request only for a maintenance-of- membership provision. Pyle told Oliver and Carleton that since they had given the Teamsters a full union shop in their contract, they should at least be willing to give the Union a maintenance-of-membership. Article III (A), (B), and (C), relating to working hours and shifts, was accepted by the Union with the request that the Company strike from subparagraph (A) the language that "it reserves the right to require 40 hours of work per man." With respect to article IV relating to overtime, the Union wanted subparagraph (A) modified so that time and a half after 8 hours would be paid without regard to the application of the Walsh-Healy Act. The Union rejected subparagraph ( B) and accepted subparagraphs (C) and (D). With respect to article V, referring to paid holidays, the Union accepted the first paragraph, which provided for 6 paid holidays, whereas the Union had pre- viously requested 7. Pyle requested that the second paragraph be,modified to call for time and one half for all hours worked on a holiday in addition to holiday pay, and proposed that the last two sentences of the third paragraph be modified by 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD striking the words "for good cause" and adding a clause at the end which would read "which authorization would not be unreasonably withheld ." 3 With respect to article VI, relating to paid vacations, the Union accepted subparagraph (A), thereby in effect dropping its demand for a second weeks ' vacation, or part thereof, for certain employees . It requested changes in subparagraphs (B) (2) and (5) relating to eligibility requirements for vacation pay, and accepted subparagraphs (B) (3) and (4). With respect to article VII, dealing with standby time, the Union agreed with the proposed rate to be paid an employee who stands by in bad weather but disagreed with the circumstances set forth under which such standby time should be paid. With respect to article VIII, dealing with wages, Pyle first requested that the Company furnish the Union with a list of employees who may have received wage increases from September 3, 1959, to February 4, 1960, bringing up to date the list previously furnished by Respondent which had reflected the wage rate for each employee as of April 17, and September 3, 1959. The Company agreed to furnish this list. Then without discussing the provisions of article VIII of the Com- pany's counterproposal, Pyle stated that the article was unsatisfactory in its en- tirety.4 He then went on to state that the Union wanted a wage package of 25 cents an hour.5 Article IX, providing for a shift premium of 10 cents per hour on the second and third shifts, article X, relating to payday, and article XI, permitting the Union to erect bulletin boards on company premises, were all acceptable to the Union. With respect to article XII, relating to drinking water and toilets, the Union proposed the deletion of the words "maintain with the cooperation of the employees, who will provide their own drinking cups." With respect to article XIII, relating to grievance procedure, the parties did not discuss the language in detail. Pyle in- dicated that the Union was still insisting on arbitration as the final step of the grievance procedure. At this point Pyle also mentioned a no-strike, no-lockout clause.6 The Union objected to article XIV in its entirety,7 and accepted article XV, entitled "Miscellaneous." At this point Pyle stated that the Union was still insisting on a seniority system to be effective in cases of layoff and recall . With respect to article XVI, relating to the contract's effective date and termination, Pyle stated that the Union would like a 1-year agreement and indicated that the language was acceptable. After Pyle had finished going through the Company's draft counterproposal, Oliver stated that it seemed to him that the parties were still wide apart on four major issues in dispute, namely, compulsory arbitration , seniority as a test on layoff and recall, wage increases, and union security ; pointed out that the Union had pre- sented no new arguments on those points which would persuade the Company to recede from its position on these issues ; and asked if there was any point in continuing the meetings . Pyle replied that by all means they should continue, "let's see if we ' As proposed by the Union, the clause would then read as follows • "Absence authorized by the Company in writing shall be considered good attendance , which authorization would not be unreasonably withheld." 'Article VIII provided, among other things, that (1) each employee shall receive the hourly rate currently paid to him so long as he continues on the same job; (2) the Company may in its discretion increase the operator's rate of an individual employee; (3) the operator's rate in a newly established job shall be fixed by the Company; and (4) prior to changing any operator's rate or fixing a rate in a newly established job, the Company will give notice to the Union and, upon written request by the Union within 2 days, will consult with the Union regarding same. S Pyle testified that he also stated that the breakdown of that package would be deter- mined later Oliver testified that Pyle stated the Union wanted the contract to provide for a fixed rate for each job with no discretion on the Company to change 'that rate except with the consent of the Union and, in addition , wanted a wage package of 25 cents an hour, consisting of 15 cents across-the-board increase and 10 cents in additional fringe benefits I find that a resolution of this conflict in testimony is unnecessary to a deter- mination of the issues as I view them. 6 Pyle testified that he stated the Union wanted a no-strike, no-lockout clause Oliver testified that what Pyle said was that the Union would be willing to agree to a no-strike, no-lockout clause if the Company went along with the Union's demand for arbitration I find that a resolution of this conflict in testimony is unnecessary to a determination of the issues as I view them. v Under this article, the Union was to agree, in the event the setting of stone produced by the Company were stopped or impeded by some other union because said stone was processed by the Union or was not processed by some other union, to use its best efforts through all channels available in the AFL-CIO organization or otherwise to remove such stoppage or impediment. H. E. FLETCHER CO. 481 can't work out an agreement on any article where we have an outstanding difference, let's give it a try." Oliver replied that the Company's representatives would be glad to consult with their principals during the noon recess and reconsider the whole contract and the Union's position as outlined by Pyle, and come back prepared to indicate the Company's position. The meeting thereupon adjourned about 1 p.m. The conference resumed about 3:20 p.m. Oliver then indicated the Company's position on Pyle's proposals in the morning session. Oliver agreed to the Union's proposed changes in article I(B) and an article II, making the checkoff authoriza- tion irrevocable for 1 year. With respect to article V, the Company agreed with one of the Union's proposals that in the third paragraph there be deleted the words "for good cause" and that there be added the words "which authorization will not be unreasonably withheld." With respect to article XII, relating to drinking water and toilets, Respondent made certain concessions, although not entirely as requested by the Union, which resulted in full agreement on this article. The Company also agreed to drop from its proposed contract article XII, which had been opposed by the Union. With respect to all other union proposals, Oliver indicated that the Company was not persuaded at that time that it should make any change in its position. Oliver stated that the Company would not agree with the Union's reduced demand for a maintenance of membership clause, and pointed out why the Company had agreed to a full union security clause with the Teamsters. He also stated that the Company was not prepared to go along with the Union's wage demands as outlined by Pyle and pointed out that the Union had presented no new facts or arguments which would persuade the Company to change its position on the wage issue. The Company remained unwilling to agree to compulsory arbitration and for that reason stated the Company was not insisting on a no-strike, no-lockout clause. Oliver turned down the Union's suggested seniority clause, stating that the Company was not prepared to agree to a clause which made seniority the test on layoff and recall and pointing out that other factors were more important than seniority in this respect. In an attempt to make some progress on the wage issue, Pyle asked Oliver if the Company would sit down with the Union and work out a single wage rate applicable to each classification. Oliver replied, "no, the Company wouldn't." Pyle then asked if the Company would sit down with the Union and work out a schedule of rate ranges applicable to each job classification. Oliver replied, "no, the Company would not." 8 Just about as the meeting started to break up, Carleton reminded Keenan of their previous understanding that any gripes or complaints that the Union might have would be brought to Carleton's attention and they would attempt to resolve them before they grew into major complaints. Keenan replied that there had been very little trouble at the plant, that what little trouble there had been was an asset from the Union's point of view, and that that was the reason he had not been in touch with Mr. Carleton with respect to any gripes or complaints there might have been. The meeting then adjourned. (e) Refusal to recognize or deal with the Union By letter dated February 10, 1960, Respondent informed the Union that "at the last negotiating meeting between company and union representatives, held Feb- ruary 4, 1960, the parties were at a complete impasse," that Respondent believed it had fully complied with the terms of the settlement agreement and doubted that s The findings in this paragraph are based on the credible testimony of Attorney Pyle. Attorneys Pyle and Oliver, representing the Union and the Respondent, respectively, were the only witnesses who testified as to what occurred at the meeting of February 4 Oliver did not specifically deny Pyle's testimony in this regard. In response to a question by Carleton as to whether there was discussion by the Union of a single rate for each job or a schedule of wage ranges for jobs, Oliver testified that "the only discussion at that meeting with respect to a single rate for each job was the Union's statement of its wage demand that they wanted the contract to provide for a fixed rate for each job, which could not be changed by the Company without an agreement of the Union." Oliver did not attempt to detail specifically what each one said at this meeting, whereas Pyle, with great specificity and using his notes made at that time, testified in considerable detail as to the position of the parties with respect to each article of the Company's proposed con- tract. Moreover, the responses which Pyle attributed to Oliver in this regard appear to be consistent with Respondent's long maintained and undeviating position on the wage issue. Under all the circumstances, I credit the testimony of Pyle in this respect. 599198-62-vol 131-32 482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union currently represented a majority of the employees in the unit , and that therefore the Company "did not intend further to recognize or to negotiate or otherwise deal" with the Union as the representative of any group of its employees unless and until the Union has been recertified by the Board as such representative. (f) Filing of RM petition and submission of wage data Coincident, with the mailing of the above letter, the Respondent filed with the Board's Regional Office an employer representation petition, which was subsequently dismissed by the Regional Director because of the issuance of a complaint in the instant proceeding. On February 11, 1960, Respondent furnished the Union with a list, containing the wage data requested by the Union at the meeting of February 4. This list reflected about 37 individual wage increases unilaterally given by Respondent during the period between September 3, 1959, and February 4, 1960. B. The Respondent's unlawful conduct The General Counsel contends in his brief that Respondent failed to comply with its statutory duty to bargain collectively with the Union in violation of Section 8(a)(5) and (1) of the Act by its conduct ( 1) in refusing to recognize and deal with the Union on and after February 10, 1960; (2) in failing to bargain in good faith on wages at the negotiating meeting of February 4, 1960; and (3) in granting individual wage increases to its employees , unilaterally, without notice to or con- sultations with the Union. (1) The refusal to recognize and deal with the Union on and after February 4, 1960 The Union was certified as the exclusive bargaining representative of the em- ployees in the appropriate unit on September 12, 1958 . As the settlement agree- ment was executed and became effective before the expiration of the certificate year, I find that at that time, the Union continued to be the majority representative of Respondent's employees in the appropriate unit. By executing this settlement agree- ment, which contained a bargaining provision, Respondent acknowledged its obliga- tion to bargain with the Union. After the effective date of the settlement agree- ment, Respondent was therefore required to honor that obligation for a reasonable time in which to conclude a contract , without regard to any changes in majority status during that period and without questioning the representative status of the Union. The test of the legality of Respondent's conduct is therefore whether or not such a reasonable time had elapsed between August 4, 1959, the effective date of the settlement agreement , and February 10 , 1960, when the Respondent informed the Union that it would no longer recognize or deal with it, and not whether or not Respondent believed in good faith that the Union no longer represented a majority of the employees. The foregoing principles have been well established by the Board , with judicial approval , and Respondent does not take issue with them .9 It is the Respondent's position that the parties had reached a "complete impasse" at the meeting of Feb- ruary 4, 1960, and that therefore such a reasonable time had elapsed when it re- fused to continue to recoginze and deal with the Union on February 10. I do not agree. The Board has never precisely defined what constitutes a reasonable time, other than to hold that it may not be equated with the certificate year.10 The Board has recognized that such a determination must of necessity depend entirely upon the particular circumstances involved and that what is reasonable in one case may not be so in another.ii In this case, only two negotiating conferences had been held since August 4, 1959, the effective date of the settlement agreement . At the first meeting, no specific con- tract proposals were discussed and no real negotiations ensued because the meeting was devoted primarily to a discussion of the problems in connection with the re- instatement of strikers pursuant to the terms of the settlement agreement. Thus, it was only at the meeting of February 4, 1960, that negotiations took place for a collective-bargaining agreement. At that meeting, the parties, for the first time O Poole Foundry and Machine Company, 95 NLRB 34, enfd. 192 F. 2d 740 (C.A. 4), cert. denied 342 U S 954; Consolidated Textile Company, Inc. (Ella Division ), 106 NLRB 580; Dick Brothers, Inc, 110 NLRB 451. iu Ruffalo's Trucking Service, Inc., 114 NLRB 1549. n The Daily Press, Incorporated, 112 NLRB 1434, 1441. H. E. FLETCHER CO. 483 since its submission on April 15, 1959, went through the Respondent's written counterproposals in detail, item by item and clause by clause, and stated and dis- cussed their respective positions with respect to them. As a result of such discus- sions, both the Union and the Respondent made concessions and full agreement was reached on a number of items. Thus, substantial progress was made as a re- sult of this negotiating session. It is true that at the end of the meeting, the parties were still in disagreement over the major items of union security, arbitration, seniority and wages, as well as over other items. However, even with respect to the major items the Union had made a substantial concession in receding from its previous demand for full union security to a request for a maintenance-of-membership provision. With respect to wages, the Respondent was to furnish the Union with a list of employees who had received wage increases since September 3, 1959. Such data was needed by the Union in order to enable it to determine whether and in what respects it might modify or change its wage proposals. The opening which such increases make for the correc- tion of existing inequities among employees or for the substitution of other items in lieu thereof suggest a number of opportunities for further bargaining.12 This data, however, was not furnished to the Union until after the Respondent had refused to continue to recognize and deal with the Union. It therefore cannot be said that a genuine complete impasse had been reached when the Respondent had not yet supplied the Union with the information to which it was entitled for bargaining pur- poses.13 Moreover, there was no understanding between the parties at the adjourn- ment of the February 4 meeting that no further meetings would be arranged, as might be expected where the parties have reached the point of actual impasse where continued negotiations would be futile. The very fact that Respondent was to supply the Union with the request relevant wage data suggests the contrary. In view of the "give and take" character of the February 4 meeting, the fact that this was the first meeting in which all the contract provisions were discussed, and the fact that the Union was still to be furnished with relevant wage data, it cannot be said that the parties had actually reached the end of their bargaining rope at this meeting. Furthermore, other items, besides the four major ones mentioned above, still re- mained unresolved. There was always the possibility that the Union or the Re- spondent might retreat from their seemingly inflexible position on the wage or other main issues because of concessions given or taken on the other items. The fruition of this possibility into an actuality may not be foreclosed by the Respondent's refusal to continue to recognize and deal with the Union. Under all the circumstances and upon consideration of the entire record as a whole, I am persuaded and find that no genuine "complete impasse" had in fact been reached at the conclusion of the February 4 meeting,14 and that a reasonable time in which to conclude a contract had not elapsed after the effective date of the settlement agreement when Respondent refused to continue to recognize and deal with the Union.15 The foregoing findings are in no way impaired by the Acting Regional Director's letter, dated January 27, 1960, to the effect that the cases, which were disposed of by the settlement agreement, would be regarded as closed cases "so long as the present status of compliance continues." Viewed most favorably to the Respondent on the issues here litigated, this letter may be interpreted as stating no more than that as of January 27, 1960, the Respondent was bargaining in good faith with the 12 Chambers Manufacturing Corporation, 124 NLRB 721. 18 Bonham Cotton Mills, Inc, 121 NLRB 1235, 1258. 14 See, e.g., Chambers Manufacturing Corporation, 124 NLRB 721; Dalton Brick & Tile Corporation, 126 NLRB 473. 15 Consolidated Textile Company, Inc (Ella Division ), 106 NLRB 580. In that case the Union was certified on January 21, 1951. After numerous conferences , during which written proposals and counterproposals were consider, the parties reached an impasse In December the Union filed 8(a) (1) and (5) charges. A settlement agreement of these charges was executed on February 21, 1952. Thereafter two bargaining conferences were held in March, and a third one scheduled for April was postponed and never held The Union made no further request for bargaining until September 8, 1952, which request was refused by the Company on September 12 on the ground that the Union no longer repre- sented a majority of the employees Thus, about 7 months had elapsed from the date of execution of the settlement agreement to the date of the Company's refusal to bargain. The Board held that, under all the circumstances, this did not constitute a reasonable period of time in which to conclude a contract and the Company violated Section 8(a) (5) and (1) of the Act whether or not it had a good-faith doubt of the Union's majority. 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union. No findings to the contrary are herein made. That the Regional Director was of the opinion that the compliance status did not continue is demonstrated by his issuance of the complaint in the instant proceeding. I find that by refusing to continue to recognize the Union as the exclusive collective-bargaining representative of the employees in the appropriate unit and to^ deal and bargain with it as such representative on and after February 10, 1960, Respondent has violated Section 8(a) (5) and (1) of the Act whether or not it had a good-faith doubt of the Union's majority status. (2) The failure to bargain in good faith on wages Since 1953, Respondent had in effect a job evaluation plan which fixed the maxi- mum Tate for each job classification. There is no fixed starting rate. The starting rate for an employee is below this fixed maximum rate and is determined by the foreman and superintendent at the time of hiring , depending on the employee's qualifications and experience. Thereafter, merit raises may be given to employees until they reach the maximum rate fixed for their job classification. There are no prescribed stand- ards for determining when a merit raise is to be given, this being left solely to the judgment and discretion of the respective foreman, subject to the approval of the sup- erintendent and the limitation of the maximum rate established by the job evalua- tion plan. In its contract draft submitted as a counterproposal, Respondent in effect offered to continue this existing practice except that it further offered to con- sult with the Union, upon written request, prior to changing any operator's rate or fixing a rate in a newly established job. As previously found, before the negotiating meeting of February 4, 1960, ad- journed, Respondent's negotiators refused to agree to sit down with the Union's negotiator to explore the possibilities of arriving at a fixed starting wage applicable to each classification or the possibilities of working out a schedule of rate ranges applicable to each job. The latter would also inevitably encompass a discussion of standards for the determination of the granting of merit increases. While Re- spondent may not be required to agree to any fixed rates, schedules or standards, all these are obviously proper and appropriate subjects for collective bargaining. Respondent's outright refusal to discuss and explore the possibilities of reaching an, agreement on these subject matters constitutes a refusal to bargain in good faith with respect to wages. I find that Respondent's conduct in this respect constitutes a refusal to bargain in violation of Section 8 (a) (5) and (1) of the Act. (3) Unilateral granting of individual wage increase During the period from August 24, 1959, to February 24, 1960, Respondent admit- tedly granted 39 individual wage increases, without prior notice to or consultation with the Union. The General Counsel contends that the Respondent's conduct in bypassing the Union in this respect was violative of Section 8(a)(5) and (1) of the Act in accordance with well-established precedents. The Respondent contends that- its conduct in this respect was not violative of the Act because the Union was- aware of and had acquiesced in this practice. I agree. The record shows to my satisfaction, and I find, that in this respect Respondent was following its past and existing practice which was known to the president of the Local and the employee negotiating committee, that the Union's negotiators were aware of these unilateral wage increases, that the number of such unilateral increases made during this period was no greater than those made during any comparable past period, and that the Union at no time protested the granting of these wage increases. Thus, when Attorney Angott was informed at the meeting of September 3, 1959, in response to his question, that individual increases had been granted since the commencement of the strike, he made no protest and no request that the Union thereafter be notified before such individual wage increases were to be granted. On September 24, 1959, Respondent supplied the Union with a list of employees who had received such wage increases. When Attorney Carleton later met with Keenan and other employee representatives of the Local to discuss the complaints relating to the jobs of returning strikers, a question was raised as to the accuracy of this list but no complaint was raised as to the propriety of Respondent's conduct in granting- them. About September 28, 1959, the Union filed a charge, alleging a refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. No reference is made in this charge to Respondent's conduct in granting these wage increases, and the charge was subsequently dismissed by the Regional Director, after investigation. Although Attorney Carleton had urged Local President Keenan in their October- telephone conversation to inform him immediately about any complaints or gripes- that arose before they assumed major proportion, and again reminded him of this H. E. FLETCHER CO. 485 at the February 4 meeting, Keenan admitted that he at no time protested to Carleton or any other Respondent representative about individual employees receiving wage increases. Furthermore, the Acting Regional Director's letter of January 27, 1960, as to the compliance status of Respondent, at least suggests that no complaint had been lodged by the Union with respect to individual wage increases. Nor was any complaint in this respect made at the meeting of February 4, 1960, when Union Attorney Pyle requested the Respondent to bring up to date the list of employees who had received wage increases. Finally, Attorney Carleton, who attended all the negotiating meetings and was present at other meetings at the Local level, credibly testified, without contradiction, that at no time was any objection ever raised to the unilateral individual wage increases. The charge in the instant case, which for the first time alleged unlawful conduct with respect to unilateral wage increases, was not filed until February 23, 1960. I do not agree with the contention of the General Counsel and the Union that the Union's objection to the Respondent's contract wage proposal that it retain sole dis- cretion to grant wage increases, subject to prior notice to the Union and consultation with it upon written request, constituted such an objection. This merely indicated the Union's willingness to be bound contractually to such a procedure.16 Upon consideration of the entire record as a whole, I am convinced and find that the Union had acquiesced in Respondent's unilateral conduct in granting individ- ual wage increases until the filing of the charge in the instant case on February 23, 1960, and that for that reason Respondent's conduct in this respect was not violative of the Act.17 I will accordingly recommend the dismissal of this allegation of the complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate .the policies of the act. Having found that Respondent refused to bargain with the Union on February 4 and 10, 1960, and at all times thereafter, in violation of Section 8(a)(5) and (1) of the Act, I will recommend that Respondent be ordered to bargain with the Union, upon request, as the exclusive representative of its employees in the appropriate unit concerning rates of pay, wages, hours, and other terms and conditions of employ- ment, and if an understanding is reached, embody such understanding in a signed agreement. 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. All production and maintenance employees of Respondent, engaged in the quarrying, manufacturing, and processing of granite, exclusive of office clerical employees, over-the-road truckdrivers, guards, professional employees, and all super- visors as defined in the Act, constitute a unit appropriate for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act. 2. Local 186, United Stone & Allied Products Workers of America, AFL-CIO, was on August 4, 1959, the effective date of the settlement agreement, and at all times 16 The General Counsel also points to the testimony of Belair and Marcouillier, denied by Foreman Gaucher, that Foreman Gaucher told them, in effect, that they would not get their requested wage increase if "the Union had anything to do with it." The General Counsel contends that this is indicative of Respondent's motive to undermine the authority of the Union as the bargaining representative by unilaterally granting individual wage increases. I do not credit the testimony of Belair and Marcouillier in this respect. Moreover, even if the statements were made, I believe that this merely constituted a lay- man's inartful description of Respondent's practice of giving individual wage increases without consulting the Union 17 See, e.g, The Frohman Manufacturing Co., Inc ., 107 NLRB 1308, 1313-1314; The AIM-Chalmers Manufacturing Company, 106 NLRB 939 ; Beacon Piece Dyeing & Finishing Co., Inc., 121 NLRB 953 ; Betty Brooks Company, 99 NLRB 1237. 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD since has been, the exclusive representative of all the employees in the aforestated appropriate unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 3. By refusing to bargain with the above-named Union with respect to wages, on February 4, 1960, and by refusing on February 10, 1960, and at all times thereafter,. to recognize or bargain with said Union as the exclusive representative of the em - ployees in the aforestated appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 4. By the foregoing conduct the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not engaged in unfair labor practices within the meaning of Section 8 (a)(5) and ( 1) of the Act by unilaterally granting individual wage increases. [Recommendations omitted from publication.] Hilton Hotels Corporation d/b/a Hilton Hotel and Local 628, Bartenders & Culinary Workers Union, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO. Case No. 28-CA-655. May 12, 1961 DECISION AND ORDER On December 14, 1960, Trial Examiner Howard Myers 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. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Fanning]. 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 Inter- mediate Report, the exceptions, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. We are satisfied, as apparently was the Trial Examiner, that Theo- dore Coombes did not engage in union activity during working hours. Accordingly, we reject, as having no basis in fact, the Respondent's defense that it discharged Coombes because he engaged in union activity during working hours. For the reasons indicated in the Intermediate Report, we find, as did the Trial Examiner, that the Respondent discharged Coombes because of his protected union activ- ity, in violation of Section 8 (a) (3) and (1) of the Act. 131 NLRB No. 68.