WATE, Inc.

1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I WILL NOT, in any like or related manner, interfere with, re- strain, or coerce employees in the exercise of the rights guaranteed by Section 7 of the Act. EDWARD P. TEPPER, D/B/A SHOENBERO FARMS, 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. WATE, Inc. and Local Union 760, International Brotherhood of Electrical Workers, AFL-CIO. Case No. 10-CA-4540. August 29, 1961 DECISION AND ORDER On February 13, 1961, Trial Examiner Stephen S. Bean 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 Intermediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its power in connection with this case to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. 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 proceeding, and hereby adopts the findings,' conclusions, and rec- ommendations of the Trial Examiner, with the modifications and additions noted herein. We agree with the Trial Examiner, for the reasons stated in the Intermediate Report, that Respondent violated Section 8(a) (5) and (1) of the Act by refusing on March 15, 1960, and at all times there- 'We find that the appropriate unit includes video technicians , and not radio tech- nicians ; that Blair, the Union 's representative, heard nothing from the Respondent during the 38 or 39 days following Blair's letter on May 23, 1960, to Linebaugh , the Respondent's representative, and then on July 1, 1960, filed a charge against the Respondent in Case No. 10-CA-4483, alleging a refusal to bargain ; and that 18 days elapsed before the Respondent's attorney wrote Blair on July 19, 1960. The inadvertent errors in the Intermediate Report which we are here correcting do not affect the Trial Examiner's ultimate findings and conclusions or our agreement therewith. 132 NLRB No. 112. WATE, INC. 1339 after to bargain collectively in good faith with the Union as the repre- sentative of the employees in the appropriate unit. We also find that Respondent violated Section 8(a) (5) and (1) of the Act by refusing, on or about August 25, 1960, to execute the agreement reached with the Union. It is clear, and we find, that at a meeting on August 2,1960, between Union Representative- Morgan and Respondent's negotiator, Line- baugh, to consider a contract proposed by the Union, Linebaugh agreed to make the effective date of any agreement the date of sign- ing and that all changes which Respondent wanted in the contract proposed by the Union were accepted by the Union with the excep- tion of three changes desired by Respondent. It is also clear, and we find, that the Union accepted the remaining changes desired by Re- spondent thereafter. As the Trial Examiner credited testimony that Linebaugh unequivocally agreed to the date of signing as the effective date at his meeting with Morgan on August 2, as we find that Line- baugh had authority on behalf of Respondent to make the agreement, and as Respondent had not revoked its counteroffer, the Union's com- munication of its complete acceptance at that time of Respondent's counterproposal constituted an agreement. Respondent's subsequent insistence on a February 1, 1960, effective date dishonored its obliga- tion to execute the agreement reached, which was tendered to it on or about August 25, 1960. As Respondent thereby violated Section 8(a) (5), we find merit in the exception of the General Counsel to the failure of the Trial Examiner to include in his recommended remedial order a direction that Respondent, upon request by the Charging Party, execute the collective-bargaining contract as agreed to. Accord- ingly, we shall order the Respondent, upon the Union's request, to execute the written collective-bargaining agreement submitted to it by the Union on or about August 25, 1960, effective, as agreed, for 1 year from the date of its signing, and containing the automatic renewal clauses set forth in said agreement. If no such request is made, we shall order the Respondent, upon request, to bargain collectively with the Union as the exclusive representative of the employees in the ap- propriate unit, and, if an understanding is reached, to embody such understanding in a signed contract.' ORDER Upon the entire record in this case , and pursuant to Section 10 (c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respondent , WATE, Inc., Knoxville, Tennessee, its officers, agents, successors , and assigns, shall : 2 The Usadel Trophy Manncjacturers Inc., 131 NLRB 1347. 1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Refusing, if requested to do so by Local Union 760, Interna- tional Brotherhood of Electrical Workers, AFL-CIO, to execute the written agreement tendered to it by Local 760 on or about August 25, 1960, to be effective for 1 year from the date of execution thereof, with the automatic renewal clauses set forth therein. (b) If no such request is made, refusing to bargain collectively with Local Union 760, International Brotherhood of Electrical Workers, AFL-CIO, as the exclusive representative of all the Respondent's em- ployees in the following appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of em- ployment, and, if an understanding is reached, refusing to embody such understanding in a signed contact. The appropriate unit is: All engineers in radio and TV transmitting, TV and video tech- nicians, and all TV projectionists employed by WATE, Inc., at Knoxville, Tennessee, including the audio supervisor and the remote supervisor, but excluding office clerical employees, profes- sional employees, announcers, staff artists, cameramen-floormen, film technicians, program and production employees, the maid and janitors, watchmen-guards, executive supervisors, and all other supervisors as defined in the Act. (c) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their right to self-organi- zation, to form labor organizations, to join or assist Local Union 760, International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or pro- tection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) If requested to do so by Local Union 760, International Brother- hood of Electrical Workers, AFL-CIO, sign forthwith the written agreement tendered to it by Local 760 on or about August 25, 1960, to be effective for 1 year from the date of execution thereof, with the automatic renewal clauses set forth therein, and deliver at least three signed copies thereof to Local 760. (b) If no such request is made, then, upon request, bargain collec- tively with Local Union 760, International Brotherhood of Electrical Workers, AFL-CIO, as the exclusive representative of the employees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed contract. WATE, INC. ' 1341 (c) Post at its premises at Knoxville, Tennessee, the notice attached hereto marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Tenth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. 8 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the Labor-Management Relations Act, we hereby notify our employees that : WE WILL, if requested to do so by Local Union 760, International Brotherhood of Electrical Workers, AFL-CIO, sign and execute forthwith the written agreement tendered to us by Local 760 on.or about August 25, 1960, to be effective for 1 year from,the date of execution thereof, with the automatic renewal clauses set forth therein, and deliver at least three signed copies thereof to Local 760. IF NO SUCH REQUEST IS MADE, WE WILL, upon request, bargain collectively with Local Union 760, International Brotherhood of Electrical Workers, AFL-CIO, as the exclusive representative of our employees in the following appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an agreement is reached, em- body such agreement in a signed contract. The 'appropriate unit is: All engineers in radio and TV transmitting, TV and video technicians, and all TV projectionists, employed by WATE, Inc., at Knoxville, Tennessee, including the audio supervisor and the remote supervisor , but excluding office clerical em- ployees, professional employees, announcers, staff artists, cameramen-floormen, film technicians, program and produc- 1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion employees, the maid and janitors, watchmen-guards, executive supervisors, and all other supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Local Union 760, International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization of their own choice. WATE, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding came on to be heard before me in Knoxville, Tennessee, Novem- ber 29 and 30, 1960, on issues of whether WATE, Inc., herein called the Respondent, has violated any of the provisions of Section 8(a) (5) and (1) of the National Labor Relations Act, herein called the Act, by conduct hereinafter described. Briefs received from the General Counsel on January 3, 1961, and from Respondent on January 4, 1961, have been carefully read. Upon the entire record, and from my observation of the witnesses , I hereby make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent is a Tennessee corporation , with its principal office and studios located at Knoxville, Tennessee, where it is engaged in radio and television broadcasting. Respondent, during a recent period of 12 months, which is representative of all times material herein, in the course and conduct of its operations , derived a gross income in excess of $100,000, and purchased and received equipment , supplies, and other goods and materials valued in excess of $5,000, which were shipped directly to it from points outside the State of Tennessee . Respondent subscribes to national news services costing in excess of $5,000 annually, transmits programs which are received in States outside the State of Tennessee, and sells advertising to out-of-State accounts valued in excess of $5,000 annually. I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE UNION AND THE APPROPRIATE UNIT I find that Local Union 760, International Brotherhood of Electrical Workers, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2 (5) of the Act. WATE, INC. 1343 It is agreed and I find that all engineers in radio and TV transmitting, TV and video technicians, and all TV projectionists employed by Respondent in Knoxville, Tennessee, including the audio supervisor and the remote supervisor, but excluding office clerical employees, professional employees, announcers, staff artists, cameramen-floormen, film technicians, program and production employees, the maid and the janitors, watchmen-guards, executive supervisors, and all other 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. III. THE ALLEGED UNFAIR LABOR PRACTICES Prefatory Considerations An election by secret ballot was conducted on April 24, 1958, among the employ- ees of this Respondent in an agreed appropriate unit which was substantially the same as that alleged in the complaint in this case.' The tally of ballots showed that 16 votes were cast of which 6 were for the Charging Union and 10 were against it. On April 28, 1958, the Union filed objections to the conduct affecting the election. On September 3, 1958, the Board directed a hearing to resolve issues raised by an allegation that in the course of a preelection speech the Employer engaged in conduct which unduly interfered with the employees' free choice of a bargaining repre- sentative. On March 19, 1959, the Board adopted the findings of a hearing officer to the effect that on April 23, 1958, the day before the election, Respondent's general manager, W. Henry Linebaugh, in the course of the speech to employees, discussed Respondent' s management plan (said by the Board to have been devised by an independent engineering firm covering employees' wages, hours, and working conditions) 2 and stated that any contract Respondent agreed to with the Union would have to include the plan. This statement, the Board held, "constituted a permissible preelection expression of Respondent's bargaining position, was non- coercive in character, and did not constitute interference with the election." Al- though the Board then found that "There was no testimony that Linebaugh had stated he would never sign a contract with petitioner," Linebaugh testified before me that a statement, contained in an affidavit taken from him in the course of the proceedings leading to the March 19, 1959, decision, that in the Apiil 23, 1958, speech he said there was no law compelling the Company to execute a contract with any union" was a true statement. Accoidingly, the Board in certifying the results of the election held that the Union had failed to receive a majority of the votes cast on April 24, 1958, and found that it was not the exclusive representative of Respondent's employees in the unit. Three and one-half months later, on August 6, 1959, Respondent's employees by majority vote 3 in an election by secret ballot designated and selected the unit found to be appropriate as their representative for the purposes of collective bargaining with the Respondent in respect to wages, hours of employment, and other terms of employment. On October 13, 1959, the Board sealed the vows. The Basic Events The salient facts, pertaining to the core of the case, are the following: On Septem- ber 18, 1959, 1 week before the Regional Director had recommended that the unit be certified, the Union wrote Respondent that since May 1 of that year it had claimed its representative status, that Respondent had declined to meet and bargain on four occasions between then and June 3, and that the Union had won the election some 6 weeks earlier. The Union suggested October 5, 1959, as a date for starting bargaining negotiations and concluded its letter by requesting Respondent to supply it with 27 assortments of information assertedly necessary to its preparation of a proposal for Respondent's consideration. The first bargaining session was held in Knoxville on November 19, 1959, approxi- mately 6 weeks subsequent to the Union's suggested date and 5 weeks after the certification. Respondent's chief negotiators were its vice president and general manager, W. Henry Linebaugh, and its attorney in labor management matters, Harold M. Humphreys; the Union's were Taylor L. Blair, Jr., International repre- 1 The sole difference being the addition to the unit of the audio supervisor and the remote supervisor, as found in section II, above 2WATP, Inc, 123 NLRB 301 at 304, footnote 5 9 Found by the Board In Case No 10-RC-4381 (not published in NLRB volumes) to have been nine for and six against the Union, with two of four challenges of Respondent to ballots sustained and two rejected but unnecessary to be opened and counted since they could not affect the results of the election 1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentative of the Union, and Harry B. Morgan, its assistant business manager. Humphreys resides in Chattanooga, Tennessee, 114 miles from Knoxville. A second meeting also in Knoxville, was held on the following day, November'20, 1959. Then Linebaugh took a vacation, and upon his return from Florida, sessions were resumed on January 5, 6, 26, and 27, 1960, with Humphreys and Blair, among others, in attendance. There followed a hiatus until August 2, 1960, with a final session on August 25, 1960, attended by Linebaugh and Morgan only. On November 19, 1959, the Union presented its contract proposals. There ensued a series of discussions, proposals, and counterproposals, accompanied by a charac- teristic pattern of give and take in bargaining negotiations until finally on January 27, 1960, a final verbal agreement was reached, subject to approval of the employees as to all issues, with the possible exception of a caveat Respondent asserts it insisted upon, providing that its compliance with the agreed-upon pay schedule would be circumscribed by existing management policy as to qualifications and not subject to arbitration.4 On January 28, 1960, Blair and Morgan had a 2-hour meeting with most all of the employees at the Company's television studio. Each clause of the agreement was explained in its entirety, and the employees were asked to approve or disapprove the contract. By a showing of hands they approved. About 45 minutes thereafter Blair met Humphreys at a Knoxville hotel and informed him the employees had accepted the contract. The two shook hands on the agreement. Humphreys then telephoned Linebaugh that they had an agreement. Blair told Humphreys that he would prepare the written contract and mail it to the Company. On February 18, 1960, Blair mailed from Memphis 14 copies of the agreement, which he had prepared and signed, to H. F. Grovenstein, business manager of the Union at Knox- ville, with the request that the latter arrange a meeting with Linebaugh to have him sign for Respondent. Blair also advised Grovenstein that he had 20 additional copies of the contract to be distributed to the members of the unit upon its final execution. The wage clause in the contract (article III, section 9, last paragraph) contained no reference to nonarbitrability of wages. Its effective date was January 1, 1960. On February 19 or 20, Morgan personally delivered the contract and its copies at Linebaugh's office and within a day or two telephoned Linebaugh who stated he would send them to Humphreys for final approval. Thereafter both Morgan and Grovenstein telephoned Linebaugh a number of times in an effort to expedite the signing of the agreement. On April 11, 1960, Linebaugh, in response to another telephone call, told Grovenstein that Humphreys had been sick and unable to proof- read and look the contracts over but that he believed he would be able to do so within 2 weeks and was sure it could be worked out within that time.5 When asked what would happen if Humphreys' incapacity should continue, Linebaugh replied he then would have to turn the matter over to someone else. On April 24, Groven- stein telephoned Humphreys' office in Chattanooga seeking, but not being granted, permission to visit Humphreys in the hospital. He was informed by the secretary that she would see Humphreys and call him back that same afternoon or the following morning. Grovenstein received no reply call, however. Blair visited Humphreys' office in Chattanooga on a number of occasions between about the middle of April and about the middle of May and inquired about the state of Humphreys' health and.when he might be expected to "get back on his feet." On April 27, 1960, he • The conflict in testimony in this regard , for example, Humphreys having testified that the question was raised and the subject batted around and that Blair said he was not sold on, and did not like, the proposal but would take it to the membership for their approval ; whereas, Blair testified that there was no discussion during the course of negotiations regarding arbitration with reference to the wages , it seems to me does not require resolu- tion since in any event the Union , as will later appear, subsequently acceded to Respond- ent's demand for the restrictive clause. It becomes , then, somewhat supererogatory to elaborate upon the point that where, as here, an employer insists upon reserving absolute unilateral control but refuses arbitration, the Board has viewed such circumstances as weighty evidence tending to support an inference of bargaining in bad faith . See White's Uvalde Mines, 117 NLRB 1128, enforcement denied in part 255 F. 2d 564 (CA. 5) ; Cummer-Graham Company, 122 NLRB 1044 ; L. L. Mature Transport Company, 95 NLRB 311, enfd 198 F. 2d 735 ( C.A. 5) ; Dime Corporation, 105 NLRB 390. 5 Apparently Grovenstein had become aware of Humphreys' illness no later than 12 days earlier for it appears that Blair, who had received no word about the signing of the con- tracts since communicating with Grovenstein concerning a seniority listing, learned from telephoning the latter on March 30 , 1960, that the Company claimed its lawyer had had a heart attack and no meeting had been set. WATE, INC. 1345 received a letter from Humphreys' office to the effect that the doctors had indicated that Humphreys might see him the last of that week. But on April 29, there came another letter stating that Humphreys was back in the hospital and could not confer with Blair. Blair wrote Linebaugh on May 23, 1960, that the Union believed the signing of the contract embodying the agreement reached on January 27 and 28, had been unduly delayed by Respondent, that Linebaugh himself was in a position to proof check and sign the contract, and that the Union must insist that Respondent expedite its execution. Having heard nothing during the 8 or 9 days following the mailing of his letter, Blair, on June 1, 1960, filed a charge against Respondent alleging a refusal to bargain. Thirty-nine days elapsed and then, on July 19, 1960, Humphreys wrote Blair that on the preceding day he had talked with Linebaugh over the telephone for the first time since February, that he had advised Linebaugh he saw no reason for his not executing the contract, but that Linebaugh seemed to feel that it contained a number of departures from notes his secretary made the preceding November and January. On July 21, Linebaugh wrote Blair calling his attention to what he desig- nated as 18 errors in the submitted contract. Most of these proved to be merely typo- graphical or minor in character. Blair replied on August 1 that in view of the fact that Respondent then seemed to desire to work out any differences, he expected to request leave to withdraw the June 1 charge 8 and that Morgan would meet Linebaugh the following day. Then on August 2, 1960, meeting with Linebaugh, Morgan agreed to 15 of the changes Respondent desired as expressed in Linebaugh's July 21 letter. The three "errors" or discrepancies which Morgan did not agree to that day were: (1) the inclusion of wages in addition to working conditions and excluding those which were not specifically provided for in the agreement, in a provision having to do with the giving of notice of desire to make changes therein; (2) the addition of a provision (previously alluded to in footnote 4) that the rates of pay were to accord with existing management policy and not to be subject to arbitration; 7 and (3) the elimination of a proposal proscribing employees undertaking more than one duty at a time but allowing operating errors of employees simultaneously engaging in more than one duty to be charged against their records Morgan informed Linebaugh that he was to be out of town for 2 weeks and upon his return would get in touch with him about the disposition of these three remaining bones of contention. He also stated (along the lines of the last paragraph of Blair's letter of August 1) that because the Company had delayed signing the contract since the preceding February, the Union would have to insist that its effective date conform to the date of final agreement and that since the Union had not been able to "release" the agreement from January to August, it was forced to take the position that the effective date of the 1-year contract should be the day of its signing. To this Line- baugh replied that he had meant to bring up the matter himself and that he was thoroughly in accord with the proposal.8 Morgan, as he promised, consulted during the time he was away from Knoxville with Blair and Grovenstein who agreed that the remaining three of Respondent's proposals unresolved on August 2 would be accepted. Blair wrote Respondent on August 17 that although his minutes did not indicate the existence of all the discrepancies cited on July 21, all would be "cor- rected" at once. Morgan redrafted the contract accordingly and delivered the copies to Linebaugh on August 25. On November 1, 5 days after the issuance of the complaint on which this case was heard, Linebaugh wrote the Union that Respondent stood ready to execute the contract with the sole exception that its term should run retroactively from January 1, 1960. This letter was followed on November 4 by one from Humphreys stating that having received no acceptance of its November 1 position, the offer was with- drawn. Respondent then proposed that the contract be dated February 1, 1960, running for a term of i year. There ensued a communication dated November 11, stating that unless the Union accepted the November 4 proposition by November 30, 1960 (the second and final day a' he hearing in this case), Respondent would withdraw its entire proposal. 9 This charge was withdrawn by request dated August 4, 1960 The positive pronounce- ment in Respondent's brief that the withdrawal followed an investigation by the Board which determined there had been no refusal to bargain through August 1 is unsupported, and fails to have warrant, in the record. 7 Morgan testified that the first time he had ever heard about such a proposal as this was after July 21 (the date of Linebaugh's letter). 6 Linebaugh's testimony on this facet was that he told Morgan he would have to get verification, authorizing action, from his legal counsel before he could accept the proposal. 1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thrust and Parry Adequately to comprehend the essential peripheral facts upon which rest certain contentions of the parties , it now becomes necessary to hark back several months to various occurrences in order adequately to grasp the factual bases of two collateral contentions of the parties. In support of an unobjected to amendment to the complaint made during the course of the hearing, that Respondent had made unilateral work changes violative of Section 8(a)(5), the General Counsel made the following showing: On February 10, 1958, Blair, claiming, as early as then, that the Union represented a, majority of Respondent's employees, wrote Linebaugh requesting that no action be taken to make any wage, hour, or working condition or employee status changes without negotiation. By letter of May 5, 1959 , Blair again asserting the Union's representative status notified Linebaugh again that he should refrain from making such changes without prior discussion and expressed a wish to make it clear that if any of the represented employees were due wage increases on any kind of a company plan the Union would agree to the same , provided he was assured that the changes were part of a consistent plan. On January 6, 1960, Blair talked to Linebaugh concerning two employees who felt the contract negotiations were holding up their pay increases and was informed that the salary of one had been increased in August 1959, and that because the other had not been hired until October 1959 , he was not entitled to a raise. At that time Blair requested he be notified of any impending pay increases in order that the subject might be discussed. On January 26, 1960, the first item of business concerned a pay increase to one employee on January 1, the promise of an increase to another in February, and a report that two others had been told they were eligible for increases. Blair was informed that one had been promised, but had not received, a raise effective January 1 but that management had received no recommendation concerning the two others . Blair then stated again that the Union should be made aware of these things , it would like to have the opportunity of discussing them, and that Respondent should not make any changes without talking to the Union about them. Linebaugh testified he imagined Blair was going to let him grant unilateral wage increases without consultation or bargain- ing. Humphreys testified that he agreed with Blair that the Union had rights to objection if the Company should depart from established policy but that he took the position as long as the Company stayed within their practice, established policy in wage adjustments, it should continue it. Employees had been called to meetings about a proposed management plan on and before April 23, 1958 ( WATE, Inc., 123 NLRB 301 at 305 ), and Blair testified the Union had tried unsuccessfully for 2 years to find out of what it consisted. The Board held on March 19, 1959, that at the time of the hearing the plan had not been reduced to writing, and whether or not it was actually in existence was unclear. [Emphasis supplied.] WATE, Inc., 123 NLRB 301 at 304, footnote 5. Eleven of the seventeen who cast valid counted or uncounted ballots in the elec- tion on August 6, 1959, received wage increases as follows: Rice on April 1, 1960 ; Wood on January 1, 1960; Rose on September 1, 1960; Tipton on September 1, 1960 ; Walton on November 1, 1960; Thomas, who testified he received an increase from $325 to $350 a month 3 or 4 months before the hearing, also received a raise January 1, 1960; Smith on July 1 and November 1, 1960; Wat- kins; who testified he was raised from $300 a month to $325 about a month before the hearing, also received an increase December 15, 1959; Merritt on June 1, 1960; Bowing on November 1, 1960; and Alexander, a part-time operator working only at his convenience, on July 1, 1957. Two employees , who did not vote, received their last increases as follows: Harrison on November 1, 1958, and Williams on October 16, 1960. Three of the six employees who cast either disputed or unchal- lenged ballots, concerning all of whom no evidence related to pay is of record, have left the Company. A conclusionary discussion of this phase of the case will be found in paragraphic heading "Third" of this report. In an attempt to support a position taken at the hearing , although not set forth formally in its pleadings, that beginning with some time about February 1, 1960, and continuing thereafter , the Union did not represent a majority of the employees in the unit certified by the Board on October 13, 1959, and consequently it was under no legal obligation to bargain with the Union, Respondent made the following showing: On February 1, 1960, 8 of the 19 employees who voted' in the election and of the 15 who cast valid counted ballots, which latter number included 2 then no longer employed, and, in addition, 1 employee ineligible to vote, making 9 in all, sent Blair a telegram demanding to have Linebaugh present his interpretation of the con- WATE, INC. 1347" tract to them. Less than 30 days before the election two new employees now within. the unit were hired . Since the election two more new employees also now within the unit have been hired . Employee Smith conceived the idea of sending the tele- gram , typed it, procured the signatures , arranged with the chief engineer for the. procuring of replacements while he and other employees met with Linebaugh on February 2, and handed him a copy of the wire to Blair. Some of the men told Line- baugh they were not happy about the contract the Company had negotiated. Line- baugh, who at that time had not yet received a copy of a contract , went over the agreement from his work sheets and notes and answered questions . Employee Rice. could think of four employees who did not want the Union to represent them 2 to, 3 weeks after its certification . As to all the rest as time went on he "could only speak for that one guy." When he got around to the fact that Respondent had been good enough to him, he knew he did not want the Union. Employee Rose was aware of dissatisfaction with the Union before he signed the telegram . Employee Tipton, not a member of the Union, sensed a disaffection sometime around February 1, 1960, but does not know how widespread it was. Self-styled Supervisor Walton knew that after the contract was discussed by Linebaugh on February 2, approximately seven employees did not want the Union to represent them . To the best impression of employee Thomas who never wanted the Union to represent him, some of the em- ployees were dissatisfied with it after certification. Employee Watkins who decided he did not want the Union to represent him heard fellows talking about being dis- contented with the contract. On August 16, 1960, employee Smith filed with the Regional Director a petition for decertification stating that a substantial number of employees asserted that the Union was no longer their representative . This petition was promptly rejected as untimely by the Regional Director and on appeal , by minute of the Board, on Sep- tember 16, 1960.9 On August 23 and 25, 1960, an attorney-at-law wrote Respondent stating he repre- sented a majority of the employees for whom the Union was attempting to bargain, that they did not wish anyone to bargain for them, that he was appealing the Regional Director's rejection of the petition to decertify, that the employees would neither work under a contract other than their own nor participate in or be governed by any, negotiations on Respondent's part, and that they would neither be bound by any conclusion which Respondent might reach nor honor any conditions that Respondent or the Union might endeavor to impose on -them. Analysis and Conclusions The Union's Representative Status This question posed by Respondent at the threshold requires pause at the outset before deciding upon advancement to the upper stories of the case. I must disagree with the stark statement in Respondent 's brief that as of February 1, 1960, the Union's majority was dissipated . Taken in the light most favorable to Respondent's position in this respect, the sum total of the testimony of the 5 rank- and-file employees who related their conversations with Linebaugh that one knew 4 employees who did not want the Union, a second was aware of, and a third sensed, disaffection with it but did not know its extent , a fourth's impression was that some were dissatisfied after the Union 's certification, and the fifth heard some fellows talk- ing about being discontented about the contract , falls far short of constituting a substantial basis for finding all of the 5 collectively , let alone the other 10 employees then in the unit had rejected the Union . Nor does the statement of the sixth and last witness on the point , the employee who considered himself a supervisor-again taken at its strongest in favor of Respondent-that he knew approximately seven em- ployees who did not want the Union after Linebaugh discussed the contract , support the conclusion of loss of majority. It is to be called to mind that in February there were still working 15 employees who had cast valid ballots on August 6, 1959, al- though 2 were not needed to be counted), as well as 2 more employees who had been hired after the election, in October 1959, thus making a unit complement of 17. Nor, and more importantly, judged by any acceptable standard of substantiality, does the evidence respecting this aspect of the case , fragmentized or synthesized as one may please, in my opinion permit accepting the claim of reasonable doubt of majority-let alone a genuine belief that the Union lacked representative standing. Such wishful thinking as there may have been is neither in law nor in fact a reason- able doubt. Taking at face value , and sympathizing with , Respondent's expressed Case No. 10-RD-251 ( not published in NLRB volumes). 614913-62-vol. 132-86 1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD grave solicitude for its employees' interests, in consonance with its private "open- door" policy of exceeding concern in their personal welfare and that of their fami- lies, there still must ever be remembered the dominating public policy underlying the statute. The bonds of formal employee-union espousals may neither whimsically nor quickly be dissolved by mere disenchantment whether or not engendered by paternalistic intervention.10 While certainly not bound to their chosen union until death do them part, employees' ties may not readily be severed when scarcely .embarked on the honeymoon, they come to suspect the liaison was for worse rather .than for better. Reams have been written about the Act's policy of maintaining .equilibrium and balancing stability in the bargaining relationship off against the right of free choice of representation. Not in this case can it be said either end of the seesaw is firmly grounded. So much for the queries as to whether there was in fact a loss of majority and whether Respondent truly was in reasonable doubt, both of which questions, no matter where the burden of proof may lie,'I feel constrained to answer in the negative. Over and above all this-and this is the crux of the matter-what is about to be said impels entry into the edifice built up by the record. The Board has held, with court approval, that a certified union's majority status is unrebuttable during the certification year in the absence of unusual circumstances, 'but after the year ends (as it had not so expired up to the date of the filing of the charge on September 14, 1960) the presumption of a continuing majority may be rebutted even lacking the presence of unusual circumstances where an employer sur- rejoins successfully a good-faith doubt of a union's majority status. What consti- tutes "unusual circumstances" and "good-faith doubt" are questions of fact to be determined by the circumstances of each case. Celanese Corporation of America, 95 NLRB 664, 672, cited with approval in Ray Brooks v. N.L.R.B., 348 U.S. 96, 104; Stoner Rubber Company, Inc., 123 NLRB 1440. Disregarding for the nonce the powerful presumption of continued representation 31/2 months after certification when the telegram was sent to Blair as well as the fact of the intervening diminutions of and accretions to the unit, scarcely may there ,be indulged the conjecture that a telegram demanding Respondent's interpretation of a contract signifies a loss of majority. Just suppose, for instance, that contrary to the facts, all 8 of the telegram's signatories whose ballots were cast had voted against the Union on August 6, 1959, and the remaining 7 had preferred it, leaving the tally 8 to 7 against rather than 9 to 6 for the Union, as it was, in actuality. In that event the ballots of the two voters vainly protested by Respondent, the Board would have ,ordered opened and counted. How surmise about what then? Should it be a fair assumption that the two no longer working employees whose votes were counted-out of the eight eligible telegram signers-might jaundicedly have eyed the Union a year ago, would it be a less reasonable supposition that to those two whose votes were not counted and to the new four now added to the unit, the Union might today reflect a rosy hue? Would that leave in the unit 13 favoring and 6 opposed to the Union? A more imaginative understanding than the writer's would be needed to divine the answers. The same employee who received two pay increases 4 months apart in 1960 and engineered the sending of the telegram and the holding of the meeting in February was the man who filed the petition for decertification in August. How blind to realities it would be to conclude from such auspices that now a majority of the other employees in the unit no longer adhere to the Union! Respondent's reliance upon Hinde and Dauch Paper Company, 104 NLRB 847, where there was no evidence of intervening unfair labor practices and the company knew a clear majority desire for nonrepresentation existed, is misplaced. The instant case is more plainly controlled by Tennessee Egg Company 11 where not only were the defections not shown to be "sufficient to destroy the Union's majority" but the Company-as will also appear here-engaged in unfair labor practices related to the refusal to bargain. In view of these facts and considerations, I am satisfied and find that at all times from October 13, 1959, through October 12, 1960, at least, the Union has been the exclusive representative for the purposes of collective bargaining of all the employees in the unit found to be appropriate. 10 Quote in the New York Times Magazine, January 8, 1961, at page 82, from Ida Klaus: Human nature is such that paternalism, no matter how bounteous its gifts, may be of less real satisfaction and advantage to both sides than the process of reasoning together around the family table, no matter how meager the fare. 93 NLRB 846, enfd. on rehearing 201 F. 2d 370 (C.A. 6). WATE, INC. 1349 The Refusal To Bargain The question before me on the merits is whether Respondent has fulfilled the bargaining obligations imposed upon it by Section 8(a) (5) of the Act. These include not only the duty to deal with the Union in good faith, but also the obligation to make expeditious and prompt arrangements, within reason, for meeting and conferring. The Act requires that the bargaining obligation be accorded the same serious attention as other business affairs of importance. As stated in J. H. Rutter-Rex Manufacturing Company, Inc., 86 NLRB 470, 506: The obligation to bargain collectively surely encompasses the affirmative duty to make expeditious and prompt arrangements, within reason, for meeting and conferring. Agreement is stifled at its source if opportunity is not accorded for discussion or so delayed as to invite or prolong unrest or suspicion. It is not unreasonable to expect a party to collective bargaining that he display a degree of diligence and promptness in arranging for collective bargaining sessions when they are requested, and in the elimination of obstacles thereto, comparable to that which he would display in his other business affairs of importance. Indeed as stated in Burgie Vinegar Company, 71 NLRB 829, 830, the Board holds that bargaining entails even more than the postponement of an ordinary business transaction and that a delay, although unintentional, permits an employer to secure a dominant position since the passage of time, while employees grow disaffected, weakens their unity and economic power: In labor relations, a delay in commencing collective bargaining entails more than mere postponement of an ordinary business transaction, for the passage of time, itself, while employees grow disaffected and impatient at their designated collective bargaining agents' failure to report progress, weakens the unity and economic power of the group, and impairs the union's ability to secure a beneficial contract. The Act, which was designed to equalize bargaining power between employers and employees, does not permit an employer to secure, even unintentionally, a dominant position at the bargaining table by means of un- reasonable delay. I am called upon to decide whether Respondent in its negotiations with the Union performed the obligation Section 8(d) imposes both upon employers' and employees' representatives "to meet at reasonable times and confer in good faith with respect to wages, hours, and other conditions of employment, or the negotiation of an agree- ment, or any question arising thereunder.. .." While an elusive concept and not always easy of application,12 the guiding principles for the assessment of good faith are well established. Good-faith bargaining requires more than "purely formal meet- ings between management and labor, in which each maintains an attitude of `take it or leave it'; it presupposes a desire to reach ultimate agreement to enter into a collec- tive bargaining agreement." 13 To be sure, it does not require the yielding of po- sitions fairly maintained. But it does contemplate a willingness to enter into dis- 'a Many equally difficult problems, broad and lacking in rigid standards to govern their application, frequently are forced upon the Board under rather loosely defined powers. For example, the Supreme Court held as recently as January 9, 1961, that Section 10(k) requires the Board to decide underlying jurisdictional disputes on their merits and to make an affirmative award of disputed work . N L R.B . v. Radio it Television Broadcast Engineers Union, etc., 364 U S. 573. There the Court said : It is true that this forces the Board to exercise under § 10(k) powers which are broad and lacking in rigid standards to govern their application. But administrative agencies are frequently given rather loosely defined powers to cope with problems as difficult as those posed by jurisdictional disputes and strikes . It might have been better, as some persuasively argued in Congress, to intrust this matter to arbitrators But Congress, after discussion and consideration, decided to intrust this decision to the Board. It has had long experience in hearing and disposing of similar labor problems. With this experience and a knowledge of the standards generally used by arbitrators, unions, employers, joint boards and others in wrestling with this problem, we are confident that the Board need not disclaim the power given it for lack of standards Experience and common sense will supply the grounds for the performance of this job which Congress has assigned the Board. 's N.L R B. v. Insurance Agents' International Union , AFL-CIO (Prudential Ins. Co.), 361 U S. 477. 1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cussions with an open and fair mind and a sincere desire to resolve differences and find a mutually satisfactory basis for agreement , consistent with the respective rights of the parties.14 This is not a simple case where the employer has made a clear refusal to recognize or bargain with certified representative of its employees . Rather, it is one where the parties engaged for a time in bargaining conferences and exchanged and discussed contract proposals. It has long been settled law, however, that the mere fact that the parties meet and exchange contract proposals and discuss them does not of itself establish that they have bargained in good faith . Such conduct, may well amount only to "surface bargaining" or "shadow boxing to a draw" or "giving the Union a run- around." The Fifth Circuit Court of Appeals stressed this point in N.L .R.B. v. Her- man Sausage Company, Inc., 275 F. 2d 229-232: ... bad faith is prohibited though' done with sophistication and finesse. Con- sequently, to sit at a bargaining table, or to sit almost forever, or to make con- cessions here and there could be the very means by which to conceal a purposeful strategy to make bargaining futile or fail . Hence we have said in more colorful language it takes more than mere "surface bargaining" or "shadow boxing to a draw" or "giving the Union a runaround while purporting to meet with the Union for purpose of collective bargaining." Good faith , or its lack, primarily is concerned with a state of mind. There is no magical key unlocking , or open sesame admitting to, the innermost recesses of man's cerebral processes . A determination of whether an employer has bargained with the requisite statuory good faith must be based upon reasonable ineferences drawn from the totality of conduct disclosing his true intentions while participating in the bargaining process. An employer's real purpose may be revealed not only by his attitude at the bargaining table, but also from his conduct away from it, conduct reflecting a rejection of the principle of collective bargaining . The bypassing of a union or long delays in meeting with it are types of conduct manifestive of no true desire to compose differences and to reach agreement in the manner the Act pre- scribes. All aspects of an individual's conduct must be considered in their entirety, not as separate fragments each to be assessed in isolation . As was stated by Mr. Justice Frankfurter in his separate opinion in N.L.R.B . v. Insurance Agents' Inter- national Union, AFL-CIO ( Prudential Ins. Co. ), 366 U.S. 477 at 501, supra: the significance of conduct, itself apparently innocent and evidently insuf- ficient to sustain an unfair labor practice may be altered by imponderable sub- tleties at work . . . Activities in isolation may be wholly innocent , lawful and "protected" by the Act, but that ought not to bar the Board from finding, if the record justifies it, that the isolated parts "are bound together as parts of a single plan [to frustrate agreement ]. The plan may make the parts unlawful." Applying the principles set out above to the instant case, I conclude , on the basis of the totality of Respondent's overall conduct both at and away from the bargain- ing table in conjunction with the cumulative effect of the considerations now to be out- lined, that the General Counsel has fairly established a violation of Section 8(a) (5). First: Respondent's good faith must properly be evaluated against the background of other conduct, disclosing, I find, an attitude of hostility to the collective-bargaining process. As early as April 23, 1958, Linebaugh told his assembled employees there was no law compelling the Company to execute a contract with any union. While perhaps half true-although not literally correct-in that the provision in Section 8(d), that the obligation to bargain "does not compel either party to agree to a proposal or require the making of a concession " this statement to the unitiate, cer- tainly evidences a desire to avoid, rather than to reach, an accord with the Union. This is particularly apparent when the employees were not told of the other equally significant provision of the section obligating "the execution of a written contract incorporating any agreement reached if requested by either party." Such an evasion evinces a turn of mind unreceptive to the collective -bargaining principle. No applause is due the performance of an employer, before an employee audience, of a feat preserving the fly of his naivete in the amber of his innocence. Second: Nearly 14 months elapsed between the Union 's first request on September 18, 1959, for the commencement of bargaining negotiations and Respondent 's "take it or leave it" letter of November 11, 1960, setting the date of the withdrawal of its entire proposal as of November 30 unless the Union agreed to February 1, 1960, as the date of the contract's execution. Nearly 6 months ran by between January 27, 14 Globe Cotton Mills v. N L.R.B., 103 F. 2d 91, 94 (C.A. 5) ; L. L. Majure Transport Company v N.L R.B , 198 F. 2d 735, supra WATE, INC. 1351 1960, when the parties came to terms and July 19, 1960, without the Union having received any enheartening response from Respondent with respect to the execution of the submitted written contract. In the meantime, within a day or two after he had received the contract and its copies, Linebaugh told Morgan he would send them to Humphreys for final approval; between then and April 11, both Morgan and Groven- stein telephoned Linebaugh several times in an effort to expedite matters. On April 11, Grovenstein, on further inquiry of Linebaugh, was told that Humphreys had been ill but that Linebaugh believed he would be able to look over the contract within 2 weeks, that he was sure the matter could be worked out within that time and that in the event of Humphrey's continued incapacity, the business would have to be turned over to another. Blair finally wrote Linebaugh on May 23 insist- ing that the agreement reached in January be signed. As appears in more detail earlier in this report, Grovenstein and Blair had made numerous telephone calls and personal visists to Humphrey's office. All were unproductive of results. Not until about 8 weeks after Blair wrote Linebaugh on May 23, 1960, insisting that the agree- ment be signed, did Respondent, for the first time, react to any of the Union's com- plaints about the delay. Nineteen days after the first charge had been filed, Hum- phreys on July 19 wrote the previously referred to letter in which he saw no reason for Linebaugh not signing the contract. Taking this statement as at last a sign of light, the Union in its anxiety to achieve an accord withdrew its first charge, acceded to all 27 modifications Respondent desired, and delivered a redrafted contract incor- porating each and every one. But even then Respondent was not satisfied and declined to sign the contract carrying the August 26, 1960, effective date the Union desired because of the delay (a proposal with which Linebaugh at first said he was in' accord) on the questionable premise that the Union 9 months earlier in December 1959 had agreed to a January 1, 1960, effective date. The question for decision in this aspect of the case is in brief, did Respondent per- form its affirmative obligation to meet at reasonable times, to be prompt, to be ex- peditious, to exercise diligence, and to refrain from unreasonable delay. Respondent asserts that the delay was solely caused by Humphreys' illness and argues that it is hard to imagine a more justifiable and valid reason for delay than to afford one an opportunity to be represented by an experienced labor relations consult- ant. The General Counsel contends that the delay from'February through July was caused by Respondent's desire to avoid bargaining and points out that in April Linebaugh said there was nathing wrong with the drafts and that if Humphreys was not improved shortly he would consider making other arrangements. He argues that Linebaugh was always capable of attending to his day-to-day business affairs includ- ing dealings with his employees, and that other counsel should have been retained. On August 4, 1960, the Board decided that, in conjunction with other conduct, a 5-month delay in negotiations due to the illness of a negotiator constituted an unlaw- ful refusal to bargain.15 There when one of two brothers controlling a corporation became ill during the course of negotiating with a union, the other took the position that he could not meet again with the union until his brother was well enough to participate. It was held that the company had not acted with the diligence which the Act requires and had failed to observe one of the essential procedural requisites of the bargaining process, i.e , meeting with the Union without unreasonable delay. On November 2, 1960, the Board decided inter alia, that a delay of 3 months and 21 days, attributable in large part to the professed inability of a company's representa- tives to meet with a union because of other engagements they considered of more pressing importance, amounted to a failure to exercise the degree of diligence ex- pected and required of the company by the statute in providing a union an opportunity to meet for the purpose of collective bargaining, that such conduct alone might properly be viewed as supporting an independent violation of Section 8(a)(3) and was in any event cogent evidence that the company was not then bargaining with the requisite good faith.ie How does Respondent's inaction during the late winter, the spring, and a greater part of the summer of 1960 stand up to the tests of good-faith bargaining set forth in the cases from which I have quoted? After Humphreys' letter of July 19, it was Linebaugh rather than Humphreys who engaged in personal contacts with the Union's representatives. For several years no one could be employed, switched from one job to another, receive a pay increase, or be discharged without Linebaugh's final approval; he was close to, and carried on without advice, the business regarding the terms and conditions of employment of his employees; he handled legal affairs and matters of such sort as dealing with the Federal Communications Commission. w Edward E . Curian & Co, Inc., 128 NLRB 473. 16 "M" System, Inc, etc, 129 NLRB 527 1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is but natural to wonder why in view of his broad experience, Linebaugh did not see fit to perform, or he genuinely considered himself incapable of performing, without further need of the 114 miles distant Humphreys at his elbow, the relatively simple task of completing the details of the bargaining which had been practically concluded on January 27. Would Linebaugh have for months delayed referring an account for collection, renewing a note or filing a tax return because his preferred attorney, bank officer, or accountant was unavailable: was he more or less assiduous in displaying a degree of diligence and promptness in his dealings with the Union than in conducting other important business affairs? Did the delay, even assuming it was unintentional ,17 secure for Respondent a dominant position at the bargaining table which the Act does not permit? And so one might go on dilating upon the gamut of "indicia" of bad-faith bargaining the courts and the Board have expounded during the past quarter of a century and more. But to what avail! Suffice it to say it would seem that these random questions should be self answering at this advanced stage in the case interpretation of Federal Labor law. As Section 8(a) imposes the mutual obligation on negotiating parties "to meet at reasonable times," so does Section 204, in order "to prevent or minimize inter- ruptions in the free flow of commerce," require employers and unions alike to, "arrange promptly" for conferences and to endeavor "expeditiously" to bring about a resolution of disputes over contract terms in which they may be engaged. The duty to do so is part of the obligation to bargain. I find that commencing at latest on March 15, 1960, over 3 weeks after the first amended contract was delivered to Linebaugh and continuing thereafter, Re- spondent failed to comply with the provisions of Sections 8(a)(5) and 204 as. well as with the standards of good-faith bargaining established by the cited inter- pretative decisions and kindred cases in considerably more profusion than confusion. Third: Respondent's unilateral action in granting individual wage increases to a, substantial number of its employees in and after December 1959, while negotiations were in progress, provides additional evidence that Respondent was not disposed to accord the Union the bargaining status the Act vests in a majority representative. The law is clear that individual increases, no less than general wage increases, must be negotiated with the bargaining representative.18 Respondent claims that it was justified in bypassing the Union, contending that the Union had waived objection to the Respondent's granting wage increases, and they were vouchsafed, in conformity with a company policy and practice established prior to the advent of the Union. Search the records of this case, as well as those of 123 NLRB 301 and Case No. 10-RC-4381, supra, one may not find substantial evidence establishing the existence of formulated standards of automatic or predictable application for the granting of increases, so as to dispense with the need of pay raise bargaining. And the Board has held that an employer is not excused from bargaining about increases by reason of an earlier established practice to grant them.19 In any event the circumstances here were such as to require rejection of Respondent's contention.20 On the authority of the cases and on the basis of an analysis of the evidence, shortly to be undertaken it is found that Respondent's unilateral action in granting individual wage increases was in disregard of the Union's right to be consulted concerning changes in terms and conditions of employment, inconsistent with the principle of collective bargaining, and further indicative of the Respondent's bar- gaining bad faith. N.R.L.B. v. Crompton-Highland Mills, Inc., 337 U S. 217, 225. Whether viewed as an independent unfair labor practice or evidence of bad-faith' bargaining, or both, the unilateral wage increases support a refusal to bargain inference. See N.L.R.B. V. Herman Sausage Co., Inc., 275 F. 2d 229 (C.A. 5). Respondent's insistence on reserving to itself, without limiting standards, the right in its own discretion to raise individual wage rates by unilateral action, may fairly be viewed as tantamount to a refusal to bargain at all on the subject of an upward revision of wage rates. See N.L R.B. v. Berkley Machine Works & Foundry Com- pany, Inc., 189 F. 2d 904 (C.A 2). Whether or not viewed as an ipso facto refusal to bargain, Respondent's unwillingness to accept the principles on a subject so vital to employee interests as wages, discloses, at the very least, a state of mind inimical to the policies of the Act. 17 Burgie Vinegar Co, 71 NLRB 829, 830. 1$ N L R B. v. J. H. Allison & Company, 165 F. 2d 766 (C A 6) ; N.L R B. v. Berkley Machine Works & Foundry Company, Inc., 1189 F 2d 904 (C.A. 4) ; Armstrong Cork Com- pany v. N.L R B , 211 F. 2d 843, 847 (C.A. 5). 10 Williamsburg Steel Products Company, 126 NLRB 288. 20 See Armstrong Cork Co. v. N L R B , supra, at p. 847. WATE, INC. 1353' Linebaugh delayed less than 2 weeks after negotiations commenced in Novem- ber 1959 before beginning to raise employees' salaries and continued during the, ensuing 11 months to give out 14 increases to 11 employees without consultation with the Union. At the very time on January 26, 1960, when Blair made inquiries about reports that increases to a total of six employees had already been made but was informed by Respondent that but one of them had been promoted and he- in August 1959, although one had been promised a raise 4 weeks earlier, it appears from Respondent's own records that the pay of three employees had already been hiked in December and January. Other increases came along in April, June, and July 1960, and continued during November 1960. In answer to the testimony that by letters in February 1958 and in May 1959, and by personal request twice in January 1960, Blair had asked that no wage varia- tions should be made without prior consultation unless assurance were given that- the changes were part of a consistent plan, the evidence shows, or Respondent, replies, that Linebaugh "imagined" Blair was going to let him grant increases without previous discussion and that Humphreys agreed Blair properly could. object to unilateral increases not granted in accord with established policy, but not otherwise. The plain fact is that the rights of the Union and its four requests with respect- to any changes in the status of its members were completely ignored. Not only was the requested courtesy of assurance that no increases were to be made unless in pursuance of a settled company policy disregarded, no notice of the actual fact that raises were being granted was ever extended to the Union. Blair who was aware of Respondent's claim of having some sort of a plan or- policy as far back as the time of the proceedings before the hearing officer on October 16, 1958, had been continually unable to find out of what it consisted. It matters not that if Blair has been informed of the contents of such a management plan as the Board on March 23, 1958, believed Respondent had devised and that- if he had received assurance it was being followed in effecting the 14 pay raises,, he might have acquiesced in them. The vice in Respondent's conduct is its failure to accord the Union any assurance whatsoever that its conduct was consistent with, any purported plan-let alone the slightest knowledge of even its basic standards. Respondent's no-arbitration insistence even though eventually bowed to, par- ticularly when viewed in the light of other record facts, highly suggests that it was more concerned with emasculating the Union's effectiveness as an employee repre- sentative than with achieving contract stability and that it engaged in the semblance rather than the substance of bargaining. In appraising Respondent's bargaining position, -I do not hold that an employer's insistence upon a management prerogative clause without accompanying arbitration, invariably and automatically falls within the condemnation of the Act as a per se- refusal to bargain. Certainly it is clear that the Board may not sit in judgment on the substantive terms of collective-bargaining agreements. That does not mean, however, that bargaining attitudes should not be given evidentiary consideration, along with all other relevant circumstances, in determining whether an employer by the totality of his conduct has satisfied the good-faith bargaining standards. Good" faith or the want of it is, as repeatedly we have been told, a state of mind, and posi- tions taken at a bargaining table provide at least one manifestation of the state- of mind with which negotiations are conducted. Chief Judge Magruder, speaking- for the First Circuit, declared in N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F. 2d 131, 134: It is true as stated in N.L.R.B. v. American National Insurance Co., 343 U.S. 395, 404, that the Board may not "sit in judgment on the substantive terms of- collective bargaining agreements." But at the same time it seems clear that if the Board is not to be blinded by empty talk and by mere surface notions- of collective bargaining, it must take some cognizance of the reasonableness of the positions taken by an employer in the course of bargaining negotiations. Considered, as it should be, in context with other facts in this case, elsewhere- considered, Respondent's bargaining position in regard to, and its unilateral conduct- with respect to, wages discloses a clear violation of Section 8(a)(3). In ultimate conclusion, then, I find on the basis of the totality of Respondent's- conduct at and away from the bargaining table, without, however, giving conclusive weight to any separate element in this case, that Respondent on and after March 15, 1960-as alleged in the complaint-refused to bargain in good faith with the Union as its employees' certified bargaining representative in the appropriate bargaining unit earlier described, thereby violating Section 8(a)(5) and (1) of the Act. -1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Envoi There remain for disposition two relatively minor issues. Respondent affirma- tively alleged in its answer it would show that the Union had agreed that such con- tract as would be agreed upon would be retroactive to January 1, 1960, but that in August 1960, it unilaterally changed its position . The short answer to this defense, whatever else may be said, is that, if true, the Union changed its position long after Respondent had violated the provisions of Section 8(a)(5) as found above. The Union had been attempting to procure a contract for many months. It had made concessions nearly to the point of surrendering its representative obligations to Re- spondent, in its anxiety to come to some agreement. In August 1960 the certifica- tion year had but 2 months to run and the Union had been the employees' exclusive .representative for an entire year. Leaving aside the notes made for Respondent of the August 2, 1960, meeting between Morgan and Linebaugh disclosing that the matter of the contract's effective date was left open until final decision and the note taker's testimony that her understanding was that "Linebaugh agreed to update the contract to run for a year from the date that you all signed-that the parties all signed," as well as Morgan's credited testimony that Linebaugh accorded with the proposal, the unadorned fact stands out that any change in the union position was induced by Respondent's long inaction. Clearly the delay from November 1959 to August 1960, particularly from the middle of March on, was not of the Union's -doing. Had Respondent acted with the reasonable promptitude required by the Act, obviously never would there have arisen occasion after so many months of company procrastination, for the Union to request an updating. Virtually the same thing may be said about the last-minute, peremptory, time- -limited proposal of Respondent-exhibiting for once a surprisingly uncharacteristic degree of haste-that February 1, 1960, should be the starting time, lest it be urged at some later stage, as it was but obscurely before me, that the advancing of such an idea somehow affords a shield and buckler against the failure faithfully to come -to terms. None of my business is it to declare a like placebo too little. Too late, .however, was it beyond cavil. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with its operations set forth in section I, above , have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and -tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it -will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent has refused in good faith to bargain collectively -with the Union as the exclusive representative of the employees in the appropriate unit described herein. It will, therefore, be recommended that Respondent be or- ^dered to bargain collectively, upon request, with the Union as the exclusive repre- sentative of the employees in the appropriate unit , and, if an understanding is reached, embody such understanding in a signed agreement. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. WATE, Inc., is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union 760, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All engineers in radio and TV transmitting, TV and radio technicians, and all TV projectionists employed by Respondent in Knoxville, Tennessee, including the audio supervisor and the remote supervisor , but excluding office clerical employees, professional employees , announcers , staff artists, cameramen-floormen , film tech- nicians, program and production employees, the maid and the janitors, watchmen- -guards, executive supervisors, and all other supervisors as defined in the Act, -constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. UNITED ASSN. OF JOURNEYMEN, ETC., LOCAL 575 1355- 4. On August 6, 1959, and at all times material thereafter,- the Union was, and' now is, the representative of a majority of the Respondent's employees in the appro- priate unit described above for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on March 15, 1960, and at all times thereafter, to bargain collec- tively with the Union as the exclusive representative of all its employees in the above-described appropriate unit, Respondent has engaged in and is engaging in un- fair labor practices within the meaning of Section 8(a) (5) of the Act. 6. By the foregoing conduct, Respondent has interfered with, restrained, and co- erced its employees in the exercise of the rights guaranteed in Section 7 of the Act,- and has thereby engaged in and is engaging in unfair labor practices within the. meaning of Section 8(a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. FRecommendations omitted from publication.] United Association of Journeymen and Apprentices of the- Plumbing and Pipefitting Industry of the United States and Canada, Local 575, AFL-CIO and Boulder Master Plumbers. Association. Case No. 27-CC-62. August 29, 1961 DECISION AND ORDER On January 3, 1961, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, dismissing- the complaint in its entirely, as set forth in the Intermediate Report attached hereto. Thereafter, the General Counsel, the Respondent,. and the Charging Party filed exceptions to the Intermediate Report, and briefs in support thereof. 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 Rodgers and. Leedom]. The Board has reviewed the rulings of 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- the case, and hereby adopts the evidentiary findings but not the con- clusions or recommendations of the Trial Examiner, as indicated below. The relevant evidentiary facts established by the record and found by the Trial Examiner show that on July 19, 1960, the Respondent, unable to reach agreement with the Association, began a strike. In support of this strike, Respondent placed pickets at various jobsites. where employees of Association members and also of certain building- contractors or subcontractors were working; the picket signs were so worded as not to indicate with whom the Respondent had its dispute. The picketing effectively caused work stoppages of secondary employ- 132 NLRB No. 107.