Roy E. Hanson, Jr., Mfg.

ROY E. HANSON, JR., MFG. 251 WE ' WILL NOT threaten them with - a refusal to bargain with any labor organization selected by a majority of them. WE WILL NOT in any like or related manner interfere with , restrain, or coerce them in the exercise of their right to organize, to form, join, or assist a labor organization, to bargain collectively through a bargaining agent chosen by themselves, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any such activities (except to the extent that the right to refrain is limited by the lawful enforcement of a lawful union-security requirement). A. S. ABELL COMPANY, Employer. Dated------------------- By------------------- ----------- - ------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 707 N. Calvert Street, sixth floor, Baltimore 2, Maryland, Telephone Number, Plaza 2-8464, Extension 2100, if they have any question concerning this notice or compliance with its provisions. APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Rela- tion Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT ask our motor carriers, who are among our employees, about their interest in or activities on behalf of Local 355, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT threaten them with loss of employment if they should join any labor organization or select a labor organization as their bargaining representative. WE WILL NOT threaten them with a refusal to bargain with any labor organization selected by a majority of them. WE WILL NOT in any like or related manner interfere with , restrain, or coerce them in the exercise of their right to organize , to form, join, or assist a labor organization, to bargain collectively through a bargaining agent chosen by themselves, to engage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection , or to refrain from any such activities (except to the extent that the right to refrain is limited by the lawful enforcement of a lawful union -security requirement). HEARST .CONSOLIDATED PUBLICATIONS, 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. Employees may communicate directly with the Board's Regional Office, 707 N. Calvert Street, 6th floor, Baltimore 2, Maryland, Telephone Number, Plaza 2-8464, Extension 2100, if they have any question concerning this notice or compliance with its provisions. Roy E. Hanson, Jr., Mfg. and Elias Mancillas and United Steel- workers of. America, AFL-CIO. Cases Nos. 21-CA-4518-1 and 21-CA-4518-2. May 24, 1962 DECISION AND ORDER On March 23, 1962, Trial Examiner James R. Hemingway issued his Intermediate Report in the above-entitled proceeding, finding 137 NLRB No. 38. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take affirmative action, as set forth in the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in another unfair labor practice alleged in the complaint, and recommended that the complaint be dismissed with regard thereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support thereof. The Board 1 has considered the Intermediate Report, the Respond- ent's exceptions and brief, and the entire record in the case, and hereby adopts the findings,z conclusions, and recommendations of the Trial Examiner. ORDER The Board adopts the Recommendations of the Trial Examiner as its Order. 1 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 Brown] 2 We hereby correct the following inadvertent errors in the Intermediate report which do not affect the Trial Examiner 's findings, conclusions , and recommendations, or our agreement therewith : Firth's testimony that he was trying to obtain the Union 's proposal from Tanski before giving Tanski the information he iequested , quoted under section III, A. 3 preceding a discussion of shat occaried on March 28, 1961, appears to relate to conduct prior to March 28, whereas the record shows that it relates to the telephone conversation Firth had with Tanski upon Tanski's receipt of the March 28, 1951, letter In addition, we do not adopt the Trial Examiner's use of terms such as "a nineteenth century attitude" and "niggardly" to characterize the Respondent or its bargaining con- cessions We do, however , concur in his evaluation of the negotiations and his ultimate findings that the Respondent' s concessions were minimal and (lid not establish its good faith in bargaining N L R H v Reed & Pr ince Man It faeturing Company, 205 F 2d 131, 134 (C A. 1) INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE These proceedings are pursuant to the issuance of a consolidated complaint, on October 26, 1961 , which complaint was based on charges filed by Elias Mantillas on September 11, 1961 , and by United Steelworkers of America, AFL-CIO, herein called the Union, on September 14, 1961 . The complaint alleges that Roy E Han- son, Jr., Mfg., herein called the Respondent , had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1)(3), and (5 ) and Section 2(6) and (7) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act. Specifically, the complaint alleges in substance that the Respondent interfered with, restrained , and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act by a speech of Respondent's president on about June 25 , 1961 , in which be threatened to replace any employee who engaged in a strike to protest Respond- ent's failure to negotiate a collective-bargaining agreement with the Union; on or about September 7, 1961 , discharged Elias Mantillas because of his membership in, and activities on behalf of, the Union : and since March 15 , 1961, failed to bargain in good faith with the Union as the certified representative of the employees in an ap- propriate unit. The Respondent's answer, filed on November 8, 1961 , denied the commission of the alleged unfair labor practices. Pursuant to notice , a bearing was held in Los Angeles, California , on December 6, 7, and 8, 1961 , before the duly designated Trial Examiner. All parties were present at the hearing. All who entered appearances were afforded opportunity to participate in the hearing. Only the General Counsel and the Respondent participated actively. ROY E. HANSON, JR., MFG. 253 At the close of the hearing, the General Counsel moved to conform the complaint to the proof as to minor matters. The motion was granted without objection. The Respondent then moved to strike an exhibit which had been introduced in evidence in support of the alleged independent violation of Section 8(a)(1) of the Act on the ground that the exhibit contained a speech which was protected under Section 8(c) of the Act. Taking this to be a motion to dismiss the complaint as to such allegation, I reserved ruling thereon. Although I see no reason to strike the exhibit and now deny the motion as made, I find that the exhibit does not support the allega- tion of the complaint that the speech constituted a violation of the Act, and, as here- inafter stated, I shall recommend dismissal of that portion of the complaint. Follow- ing these motions, the Respondent argued orally on the record. The General Counsel and Respondent requested time to file briefs. Time was fixed and briefs were received from both. They have been considered. Concurrently with the filing of its brief, the Respondent filed an affidavit concerning the reemployment of Mancillas. The General Counsel filed a motion to reject this affidavit. The filing of an affidavit after the close of the hearing is not the proper way to proffer additional evidence,' nor is it material, at this stage of the proceedings, whether or not Mantillas was given employment after the close of the hearing. I therefore grant the General Counsel's motion to strike. From my observation of the witnesses, and upon the entire record in the case, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent is, and at all times material herein has been, engaged in Los Angeles, California, in the manufacture, sale, and distribution of high pressure ves- sels. During the calendar year 1960, Respondent, in the course and conduct of its business operations, sold and shipped products valued in excess of $50,000 directly to customers located outside the State of California. I find that the National Labor Relations Board, herein called the Board, has juris- diction and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Refusal to bargain 1. The appropriate unit All production and maintenance employees, including plant clerical employees, but excluding office clerical employees, professional employees, guards, and super- visors 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. 2. The Union's majority As a result of a Board Decision and Direction of Election, issued on February 7, 1961 (not published in NLRB volumes), an election was conducted and on March 14, 1961, the Union was certified as the exclusive representative of all the employees in the aforesaid unit for the purposes of collective bargaining pursuant to the provisions of Section 9(a) of the Act. At all times since then the Union has been, and is, the exclusive representative of such employees for the purposes of collecitve bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The bargaining history On March 15, 1961, the Union wrote to the Respondent expressing a desire to negotiate a collective-bargaining agreement and requesting five types of informa- tion to facilitate such bargaining, namely: 1. Name, seniority date, classification, and rate of each production and main- tenance employee. 2. Number of paid holidays now in effect. 1M B Morgan, d/b/a M B. Morgan Painting Contractor, 111 NLRB 395 at 399 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Copy of the current social security program, if any, including the cost and type of benefits. 4. Amount of vacation benefits now being given to the employees, if any. 5. Shift differentials, if any, and also other benefits now in effect being given to the employees by your Company. The Respondent's reply to his letter referred the Union to "Bob Firth in Pomona" who "will be handling our end of the negotiations." Firth is the Respondent's attor- ney. The Respondent forwarded to him the Union's letter. Shortly after receipt of this letter, Edmond Tanski, a staff representative for the Union, telephoned Firth and repeated the Union's request for information. Firth said that he was not sure that he could get all the information because Roy Hanson, president and general man- ager of the Respondent, kept poor records. Firth asked Tanski if the Union had a standard contract. Tanski said that the Union usually gave one to the company when they started negotiating. Firth asked what the Union would be asking. Tanski listed such subjects as seniority, union security, holidays, vacations, and insurance plan. Firth requested Tanski to send him a copy of the Union's standard contract. Firth testified, ". . . what I was trying to do . was to get his proposal in first before I gave him the information first, but I couldn't." On March 28, 1961, Firth wrote the Union a letter stating: Please accept my apologies for the delay in replying to your letter of March 159th addressed to the Roy E. Hanson, Jr., Manufacturing Company. None of the employees have a job classification or classification rate or seniority date. We believe you probably do have the names of all the em- ployees. Similarly, there is no actual program for fringe benefits, as such. Matters of this sort have been discretionary with the management of the company. Upon receipt of this letter, Tanski telephoned Firth about the information requested. Firth told Tanski that he thought Tanski probably had the names of the employees and their rates of pay and that there were no formal classifications. Tanski said that employees were not necessarily accurate (in their information concerning their rates) and that he wanted accurate information. Firth agreed to get the information for Tanski. Apparently in this conversation 2 Tanski requested and made arrangements to meet Firth and make a tour of the Respondent's plant in early April. I deduce that the information requested by Tanski and agreed by Firth to be procured was that which was listed in Tanski's letter to Firth of March 29 following this telephone conversation, that is, the names of all employees in the bargaining unit, their rates of pay, and their last date of hire. On the following day, March 30, Firth wrote to Tanski to say that he had spoken with Hanson and that the latter was compiling the information requested. On March 31, 1961, Tanski mailed to Firth the Union's first proposed contract, containing 19 sections.3 It left blank the section on "wages and cost-of-living table" and the section for group insurance, in each of which there was the notation, "to be negotiated." On or about April 6, 1961,4 Tanski, accompanied by Edward Rubenstein, another representative of the Union, went to the Respondent's plant, where they met Firth and were introduced to Hanson. Firth, Tanski, and Rubenstein were conducted on a tour of the plant by the shop superintendent for about half an hour. At this time, the Respondent was operating on 2 shifts of approximately 14 men each. When they finished their tour, Tanski asked that they go to a place where they could talk about some of the things they had seen. The superintendent took them to an office. There Tanski asked about classifications. The superin- tendent said that they did not have classifications with rates applying thereto be- cause everyone got a different rate (this was not strictly true) and did different work. Tanski proposed six classifications. The superintendent said that he did not 2 Tanski testified that after receipt of Firth's letter of March 28, he replied by letter on March 29 and then telephoned Firth and made an appointment to meet at the plant He may have telephoned after March 29 to make this appointment, hut, if so, he either telephoned before writing his letter of March 29 (because the letter refers to a telephone conversation that day) or he had more than one telephone conversation s Tanski said this was after the tour of the plant. His covering letter, however, was dated before the date of the tour, the Respondent stipulated that it received two copies of the proposed contract early in April, and Firth testified that be had seen a draft, with- out wage rates, before the day of the plant tour. 4 Tanski placed it at this time Firth thought the meeting occuri ed after April 7, which would probably put it in the following week ROY E. HANSON, JR., MFG. 255 know whether or not such classifications would apply. The superintendent at this point returned to work, while Tanski, Rubenstein, and Firth went to a coffeeshop to continue their discussion . Tanski said that he was concerned by the fact that Hanson had eliminated an insurance plan that had existed at the plant.5 Firth said that he did not know much about that . Although the conversation at the coffeeshop lasted for about 45 minutes, most of the time was spent in general talk which , I inter, was designed to establish a friendly climate for negotiations . Tanski said that he would be out of town for a few days and would telephone Firth when he returned to town. Firth testified that on April 6, 1961, he mailed to the Union , with a letter bearing that date, a list of names of employees and their rates of pay. The list, introduced in evidence, bears the date of March 29, 1961 . In his letter, Firth said that the Respondent was "working on the date of hire," that "those records are not readily available." 6 Regarding the availability of the hiring dates, I observe that the payroll record form used by the Respondent in 1961 contains a line at the bottom of the sheet on which appear "DATE EMPLOYED ---------------- DATE TERMINATED ________________ REASON FOR TERMINATION ____________________" etc., and that the blank on the record of one employee which was introduced in evidence (no others being requested ) was filled in with the date of hire as "April 12, 1957." I would infer that the information concerning the date of hire was available for all the employees and could have been included with the names and wage rates on the list mailed by Firth on April 6. Hanson, upon being shown this record , testified, "This is a result of a new system [he did not say how new], these records. I am not familiar with them ." The record, however, went back at least to the week ending January 4, 1961, so it could not have been very new. Upon Tanski's return to Los Angeles in mid-April, he telephoned Firth and arranged for a meeting at Tanski's office in Huntington Park on April 25 to go over the proposed contract . At 10 a.m., that morning, Tanski , Rubenstein, and two negotiating committeemen , Elias Mantillas and Harold Ferguson, employees of the Respondent, met with Firth in a union office. The Union outlined its demands. Firth said that he had worked with unions before, that he did not wish to get into a detailed discussion "on all these things," but that he preferred to settle the "economics" first. Tanski assented to this and they discussed fringe benefits, such as paid holidays, of which the Union was asking eight, sick leave, coffee breaks, and paid vacations. Firth asked how adamant the Union was in its demand for union security. Tanski said that the Union wanted a union shop and checkoff of dues. Firth said that the Respondent might not be agreeable to the giving of a union shop and dues checkoff. Tanski said that depending on how the "package" worked out, the Union might agree to an agency shop but that it would want a checkoff. Tanski outlined the Union's insurance plan but did not have a copy of it available at the time. Firth asked that copies of the insurance plan be sent to him. The meeting broke up at 12:30 p.m. The Union sent a copy of its insurance plan to Firth that afternoon. Apparently late in March or early April, following the receipt by Firth of the Union's first draft contract , Firth had told Hanson that he should be getting the contracts of other employers in the area so that they could compare rates of pay. Firth did not fix the date when he told Hanson this, but he testified that he had told Hanson to begin working on an insurance program also . I infer that he so advised Hanson in late March or early April . An insurance broker, David Sanders, who had been handling the Respondent 's insurance since 1959 , testified that Hanson had shown interest in types of group insurance in October or November 1960 by asking the cost. At that time, he testified , Hanson told him that he would like to go into the subject further early in 1961. Sanders made other contacts with Hanson in January or February and, during March, he and Hanson had discussions in which Hanson said that he was going to get quotations from Blue Cross and from other brokers. The date of this discussion was not definitely fixed as before or after the time when Firth suggested that Hanson start working on an insurance program. If Hanson had actually been "working" on a group insurance program before that time, he failed to inform Firth of the fact when Firth suggested to Hanson that he start working on an insurance program. The next negotiating meeting was held at Tanski's office on May 10, 1961 This was attended by the same people except that Mantillas was the only committeeman present Firth had with him a list containing the names of 27 employees, the month 5 Such plan had been dropped by the Respondent 2 or 3 years earlier 6 Tanski did not recall having received either this letter or the list. It appeared to me that Firth , himself , did not have a very clear memory of the list proffered as the one enclosed with his letter However, the General Counsel, in his brief , appears to accept the fact that It was sent and received 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and year of their employment, their base rates (the second of the 2 shifts receiving a 10-cent premium overbase rate),? and a classification number which corresponded to the numbers given on separate sheets on which were shown a list containing job numbers, job names, the job descriptions, and special requirements together with the current rate therefor. There were 15 numbered categories of such jobs, although the last 2 were merely for new employees starting as either an apprentice or as a journeyman at a rate below the current rate for the classification for which they were hired. As Firth had no copies of these forms, Tanski caused copies of them to be prepared. Then they began a discussion of this proposal. First, it was nec- essary to eliminate the names of 3 of the 27 employees on the list because they had left the Respondent's employ before May 10.8 This left 23 employees working on 2 shifts to be slotted into 12 job categories, excluding the single janitor who apparently worked only on the day shift. Tanski made notes on the form to show the number of employees in each job category. A study of these lists, introduced as exhibits, shows that two of the employees on the list (excluding those who had been ter- minated and those who were receiving the apprentice rate) were receiving less than the rate shown as the proposed rate for the job. All the others were receiving the rate shown as the proposed rate. Whether or not each employee had all the qualifi- cations for inclusion in the classification shown for him does not appear. At least one of the two employees receiving less than the current rate was not regularly, if ever, doing some of the work shown as required in the Respondent's proposed classification. It also appears that there were no employees at all in two of the Respondent's categories. Seven employees were shown as in job description or classification No. 10, which was "first-class welder." This job was described as including all the duties of the second-class welder and in addition, "Welding of plate to X-ray quality through 3 [inch] and heavier. Installation of all size tank heads." Under the column headed "Notes," which apparently gave prerequisites for the job, was, "Must pass code welding test on 3/ [inch] plate downhand, in- cluding X-ray." Mancillas, the committeeman, was shown in this classification 10 as a first-class welder. Actually, Mancillas' job was fitting tank ends or heads of all sizes and spot-welding them in place to hold them until they went to the auto- matic welding machine, and occasionally he would weld the seam of a cover over copper fittings. Mancillas was incapable of doing any welding to X-ray quality. When asked why he had included Mancillas in this classification, Hanson testified, "That was our offer to include him in Classification 10. He would be paid the rate because he could install all size tank heads. Installing all size tank heads is also a qualification." Hanson, asked if he contemplated training Mancillas for X-ray welding, answered, "No; we didn't contemplate successful bargaining to split it into two classifications, either." Asked to explain this, Hanson testified "Well, we had over 20 employees at this time who had not previously ever dovetailed or trained to fit one classification. The Unon was attempting to establish classifications, so we tried to set up 12 general classifications. When we were successful, we wanted eight or even more classifications. This is one of the cases where we were liberal in even twelve. We should have split it in two more. Most of those men would not be able to do all of the duties set up in that classification, even though we were willing-otherwise, we were to downgrade their pay, which would not be an easy way to negotiate their contract. Possibly some of the other men in 10 would not be able to install all size tank heads, I am sure of that." Obviously this answer means that the classifications offered were artificial, without regard to the work usually performed by the men Mancillas' work of installing tank ends or heads was full-time work. Only one other man, who worked on the day-shift. performer] identical work. Hanson testified that it took him 30 days to prepare these rob classifications because "we had to study the contracts they had with our competition and some discussion with those people, and then from that information we prepared our own." According to Firth, Tanski, at the meeting of May 10, told him that the Union would not "buy" the Respondent's proposed classifications, savine that it was impossible to work from them. Tanski proposed the Union's own breakdown which included six or seven classifications There is no testimony concerning 'nv discussion that may have taken place relative to the merits or faults of the Union's proposal Because both Tanski and Firth testified to what was discussed at this meeting, presumably they would have mentioned any discussion concerning the Union's classifications. I infer, therefore, that their failure to mention any such discussion means that Firth failed to offer any criticism of the Union's classifications ° The base rate shown was the current rate of pay of the employee without tho cecond- shift premium 81t does not appear how this was known No mention was made of a more current list of employees possessed by Firth ROY E. HANSON, JR., MFG. 257 Firth told Tanski that the Respondent had made an analysis of rates in the al ea. and found that its rates were in line with the prevailing rates. Tanski produced several sheets of rates which the Union had with other employers showing higher rates of pay than those of the Respondent. He also showed Firth contracts which another union in the industry had with a large number of employers. The figures did not evoke any new proposal from the Respondent. During the May 10 meeting, Firth asked what the Union's position was on paid holidays. Tanski said that the Union had no contract with less than six and that, while he would not insist on the eight shown in the Union's first proposed contract, he could not sign a contract without paid holidays. The Respondent, at the time, was giving no paid holidays. Respecting insurance, Tanski said that he would expect the Respondent to bear the cost only of the employee's coverage and that the employee would pay the cost for coverage of their dependents. Firth told Tanski that later on he would give him the Respondent's proposal on insurance. With respect to the Union's demand for a union shop, Firth said that Hanson was one of a dying breed of rugged individualists and that he would not, in Tanski's words, "go for any union security." No agreement was reached on any of the proposals at this meeting. Tanski quoted himself as saying, "Bob, we are trying to be fair with you. We are willing to work out an agreement." I infer from Firth's testimony that this remark may have been made when Firth was trying to learn how far Tanski would go in deviating from the Union's proposed contract. Tanski quoted Firth as reply- ing, "Don't blame me. . .. I know you are trying to be fair. But don't blame me." Firth did not contradict much of Tanski's testimony, but he testified that he had said that the Union had, in the Respondent, a new employer, one not used to having to deal with a union. The meeting closed when it appeared that Mancillas would be late in getting to work. His hours started at 3:30 p.m. Tanski agreed to tele- phone Firth to set a time for the next meeting. On or about May 21, 1961, the Respondent posted a notice on the bulletin board in the plant stating that an insurance representative would be there the next day to explain to the employees the benefits of a proposed insurance plan. On or about May 23, the foreman passed out to the employees a comparison between the insur- ance plans offered by Associated Indemnity Corporation and by Blue Cross, with examples of specific hospital cases showing receipt by an insured of more under the former's plan than under the latter's. Mancillas delivered his copy of this material to Rubenstein, who gave it to Tanski. Upon hearing that the Respondent was going to put the Indemnity plan into effect on June 1, Tanski, on May 24, telephoned Firth, who was out. When 'Firth called Tanski in return, Tanski asked Firth what the "big idea" was of going ahead uni- laterally and putting an insurance program into effect. Firth said he did not know what Tanski was talking about. Tanski told him that he had heard that the Respond- ent was putting an insurance program into effect on June 1. Firth said he knew nothing of it but that he would telephone Hanson and find out about it. Later, Firth telephoned Tanski and told him that Hanson had said he had been planning this insurance program for some period of time "even before the union had been certified or even active around the area." Apparently Hanson did not consent to hold up the insurance program, because Firth told Tanski that he had told Hanson that the latter was "sticking his neck out for a possible unfair labor practice charge." In fact, Hanson signed the application for the insurance on May 25, to become effective on June 1, 1961. Tanski told Firth that they had to "get off the dime" and get rolling. He asked Firth for a meeting the next day. Firth agreed. It does not appear at whose suggestion, but the appointed place was the Alibi Room, a restaurant and cocktail lounge in Huntington Park. Tanski and Firth met there alone about 1230 p.m. for lunch and were there for a number of hours, but less than half an hour of that time was spent in discussing the contract. Among other things, Tanski reminded Firth that, at the last meeting, Firth had said he would give the Union an insurance program but that meanwhile the Respondent had passed out an insurance program to the employees which was to go into effect June 1, whether the Union did anything about it or not, and that he felt this was not bargaining in good faith and that it might con- stitute an unfair labor practice. Tanski quoted Firth as saying that he was aware of that and had so advised his client but that Tanski should not blame Firth, because his client was a rugged individualist who did what he wanted. Both Tanski and Firth agreed that the negotiations were lagging. Tanski said that in an effort to reach agreement, the Union would conform its demands as closely as possible to the classified-wage-rate proposal the Respondent had given the Union, but he said that the Union would have to have union security and dues checkoff. Firth said that Hanson would not agree to that, that he would not agree to the union shop under 649856-63-vol. 137-18 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any conditions, and that he (Hanson) did not believe he should collect dues for the Union. With regard to the wage and classification proposal, Firth said that he could not change anything. This statement, based on Tanski's testimony, apparently was made because of Firth's lack of familiarity with the jobs and production technique at the plant, for Firth quoted himself as saying that he would have to have help from someone in the plant. Tanski said that they had better have Hanson in at the next meeting. Firth agreed to try to get Hanson there. Tanski related other things purportedly discussed at this meeting. It is possible that he was confused about the time when the various topics were discussed or about when various statements were made in discussing such topics. However, it is rela- tively unimportant at precisely which meetings certain things were said. For example, Tanski testified that at the Alibi Room discussion, "Mr. Firth said that the one holiday that the company was proposing, that is the only one they would give. That was Christmas Day." From the manner in which this was phrased, one might infer that the Respondent's offer of one-paid holiday had been made earlier. Firth was also uncertain of the date when this proposal was first made. I find reason to believe that it was first offered in the June 1 letter set forth below. In any event, the Respond- ent's proposal to pay for the Christmas holiday was conditioned by the Respondent on Christmas Day's falling on a regular workday. At whatever time the Respondent's holiday offer was made, Tanski said that he could not agree to this, although he might reduce the Union's demand from eight to six holidays. ,On June 1, 1961, Firth wrote the Union, to the attention of Tanski, the following letter: GENTLEMEN: I have discussed our recent conversations with Mr. Hanson. with regard to two particular items which you raised [No questions were asked at the hearing to identify the "two particular items."], Mr. Hanson indicated to me that he was willing to meet with you and me in an attempt to arrive at an agreement. With regard to the insurance program, he again advised me that it was a program he had been working on for a considerable period of time and that it had been his intention to put such a program into effect. He is willing to negotiate and discuss the merits of the respective insurance programs, both his and the one you proposed He does not believe that it would be best to cancel the existing program pending those negotiations, however. With regard to the proposed form of contract, we have a number of sugges- tions to make with regard to the language thereof which I believe will be acceptable to you since they have no substantive effect. Some other portions we will undoubtedly have to attempt to arrive at some sort of compromise. With regard to the economic package, Mr. Hanson is willing to discuss any and all phases of this, including your suggested job classifications and those which I earlier showed to you. He believes that his wage rates are generally in line but is willing to add 100 to the janitor's classification. [This is the first mention of an increase in any of the rates previously offered by the Respondent.] His vacation plan, I understand, is generally acceptable to you. As far as the insurance is concerned, as I stated, he was willing to discuss these plans with you. As far as the paid holidays are concerned, he is opposed to them with the excep- tion that when December 25th falls upon a working day, it will be paid. With re- gard to shift differential, he is willing to pay 100 for the second shift and 150 for the third shift. [The Respondent had no third shift and, so far as appears, was contemplating none, although it was planning an additional production line for the day shift.] He is not willing to pay sick leave With regard to overtime, his proposal is that overtime be paid as required by Federal law. As I stated, he is willing to sit down and discuss any and all of these items at our mutual convenience. I would like to suggest that you call me and indicate what time you have available so that I may then make arrangements to have Mr Hanson and I [sicl meet, with you. Following Tanski's receipt of this letter, he and Firth communicated by tele- phone and agree to a meeting at Firth's office in Pomona on June 7, according to Firth, or June 7 or 9, according to Tanski, at 10 a.m., with Hanson to be present. Tanski questioned the advisability of setting the place at Pomona since that was so far from both Hanson and himself, but Firth said that Hanson had to go to San Bernardino that afternoon anyway. On the appointed day, Tanski, who was not familiar with Pomona or Firth's place of business arrived about 20 minutes late. At that time Firth was alone in his office with Hanson. Because of the delay in Tanski's arrival, the conference room had been appropriated by another lawyer in the firm Firth was with. Further time was lost before Firth found another room large enough for the five-Firth, Hanson, Tanski, Rubenstein, and Mantillas. ROY E. HANSON, JR., MFG. 259 Firth testified that this meeting started before 11 a.m. and lasted until 12:30 p.m. The subject of a union shop was touched on briefly at the start of the meeting, but Hanson refused to consider it, so the Union passed on to a discussion of the "economics." Tentative agreement was reached on four points. ( 1) The Union had asked a maximum .of 2 weeks' vacation up to 5 years ' employment, with the amount prorated on a basis of 4 percent of gross pay, and a maximum of 3 weeks' vacation after 5 years computed on a basis of 6 percent of gross pay. It was the Respondent's practice to shut down for the vacation time. The Union finally agreed to accept the Respondent's existing vacation plan of 1 week for 1 year and 2 weeks after 2 years, upon the Respondent 's agreement to prorate in the second year. Hanson said that sometimes the Respondent had and sometimes it had not prorated vacations in the past . (2) The Respondent already paid a 10-cent dif- ferential for the second shift, but agreed to a 15-cent differential for a third shift (if one should be put on). (3) Considerable discussion took place on report-in pay. Hanson finally agreed to pay 4 hours ' report-in pay when the employee was not put to work. (4) There was also considerable discussion about overtime pay. The Union was asking overtime pay at time and a half for all time after 8 hours a day as well as after 40 hours a week , with double time after 48 hours. The Re- spondent was paying time and a half after 40 hours only and no double time. Hanson refused to give overtime pay on a daily basis but finally agreed to give double time after 55 hours a week. A discussion was started concerning the classifications and rates of pay. Hanson, holding in his hand a contract of Consolidated Western Steel Company, one of the few companies not covered by a boilermakers ' union contract, refused to change any wage rates except that of the janitor, which he agreed to raise from $ 1.75 to $1.90 an hour. Tanski testified that Hanson, before changing the rate of the janitor, had said, "He wasn't paying any more money than what he already put in, this was it, take it or leave it." Firth denied that Hanson said "take it or leave it." I infer that Tanski was giving his conclusion as to Hanson's attitude rather than purporting to quote Hanson. By this time it was 12:30 p .m. Tanski and Rubenstein suggested going to lunch and continuing the meeting after lunch , but Hanson said he had to leave for San Bernardino and Firth had another appointment at 4 p .m., so the meeting adjourned. Hanson told Tanksi that it was unnecessary for him (Hanson) to be present at negotiations thereafter and that, in the future , Tanski should arrange to meet with Firth alone. Between the date of the meeting in Pomona and June 14, 1961 , Tanski telephoned Firth and told him he had a "deal" which he thought Firth would accept. As a result of Tanski's invitation, Firth went to Tanski's office on June 14 at 2 p.m. This is one of the few meetings when Mantillas was not testified to have been present. Tanski testified that he showed Firth a proposed written agreement at this meeting, but Firth testified that Tanski merely outlined the Union 's proposal to him and did not give him a copy. In any event, the document concerning which Tanski was speaking was introduced in evidence . It was headed in longhand , "Proposed agreement No. 2." It contained the four items of agreement reached on June 7 (or 9) in Pomona. Some of the provisions in the Union 's first proposal had been omitted. The new proposal called for a union shop and checkoff of dues, six holidays, and a more detailed outline of hours of work ( although not deviating as to the overtime pay- ment agreement reached in Pomona) than was contained in the first proposal. It also provided for a continuation of existing rates of pay except where new rates would be required to be negotiated because of new job classifications or new manufacturing processes The Union's original seniority proposal was considerably modified in the second proposed contract to conform more nearly to customary management preferences. The new proposal , however, contained a few provisins that expanded upon topics handled in shorter form or that had not been included at all in the first one. These were not cost items, however . Firth appeared to be concerned only with cost items. Tanski, with Rubenstein present, went over the Union 's proposals with Firth, who took notes, while Tanski pointed out instances of reduced demands He proposed the Union's insurance plan, with employees paying for dependents .9 He said that "we will take even your proposed job classifications . providing you add 10 cents an hour to the rates that you propose." 10 Tanski called attention to the fact O According to a letter which Firth later wrote to Hanson , the Union also agreed that the insurance rate would remain unchanged for 1 year and that the rate would be written into the contract 30 This is based on Tanski's testimony . He may have been mistaken as to the meeting at which he said this , because Firth did not mention this offer to Hanson in his letter reporting on the meeting He gave only the Union's proposed classifications and rates of 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the Union was willing to agree to only six-paid holidays, although, he said, the area practice was seven. Tanski quoted Firth as saying, "It's like I told you, he is a rugged individualist . `I have to work on Christmas . I have to work on holi- days, I don't see why they don't work on holidays.' " To this, Tanski testified, he replied, "I have no argument with them working holidays, providing you pay them a premium for working then," and that Firth rejoined, "That's not it. He is not going to pay them a premium and he is not going to give them any pay for staying home " Firth also said, according to Tanski, that Hanson was not even going to pay for Chirstmas if it fell on a Saturday or Sunday. Although Tanski may not have succeeded in quoting Firth with literal accuracy, I note that Firth did not specifically deny these statements, and I find that he made them substantially as testified to by Tanski. Firth agreed to present the Union's proposals to Hanson and let Tanski know what Hanson's position would be on the proposals. Tanski asked how soon Firth could let him know, intimating that he might want to take a strike vote on June 24. Firth asked if the Union's latest proposal was a take-it-or-leave-it offer. Tanski said that it was the best he could do. Firth said that he would not have a chance to see Hanson because Firth was taking his children to the mountains the next day, but that he would transmit the Union's proposal to Hanson and would try to let Tanski know by June 21. On the same day or the following day after that meeting, Firth wrote a letter to Hanson in which he mentioned that he had met with the union representatives and' that they had made an offer to him, which he then outlined, limiting the outline, however, to the subjects which involved cost, that is, holidays, insurance, coffee breaks, shift premium , and rates. He did not mention any other changes. With respect to holidays, Firth wrote, " . . . they insist upon six paid holidays and com- pensate for it by dropping their wage rates " He listed the six holidays and described the manner in which holiday pay would be required by saying, " . if they fell on a Saturday or during a vacation period . . . they would still be paid for as holi- days," but added that the Union had agreed to make it a condition to receiving a paid holiday that the employee work the workday before and the workday after the holi- day In his final paragraph, Firth told Hanson: Mr. Tanski advised that this is a take it or leave it offer. He is calling a meeting of the men on the 24th. I told him that I would give him an answer on the- 21st. . . . Not yet having heard from Firth, Tanski, on June 21, telephoned him and berated him for dragging his feet. On the following day, Firth wrote a letter to the Union for Tanski in which he outlined the four subjects on which the parties had reached' agreement when Hanson was present and named the subjects on which the parties were still apart, as "paid holidays, job classifications and wage rates, insurance plan, coffee breaks, union security, dues check-off, and there has been no real discussion, of seniority other than your offer of a one-year recall rather than two years." He then stated that the Respondent was unwilling to give more than one-paid holiday and was unwilling to make adjustments in the wage rates beyond what had already been submitted to the Union. He stated: They [the Respondent] are willing to discuss union security but are opposed in principal [sic] to a union shop. They are opposed to a dues check-off. They consider it a burden upon the company. They are opposed to coffee breaks They do not believe that they are warranted in the type of job operations that they have with freedom of movement which the employees have. As far as the insurance plan is concerned , the company considers the plan which they have in effect to be more beneficial to the employees and better for the company than the one which you suggested. The company is not adamant about this, however, and are certainly willing to listen to any arguments which you might advance which would convince them that your plan is preferable. After receipt of Firth's letter, Tanski had a notice prepared for a membership meet- ing to be held at 5 p in. on Saturday, June 24, 1961 On the afternoon of June 23, at the time for change of shifts, Hanson assembled the employees of both shifts in the shop. Mancillas, who was arriving, started for the lockerroom to get his goggles. pay therefor These rates are not readily comparable with those or the Respondent Is'- c'tuse of the difference in classification The Union's classifications might have resulted in an increase in rate of pay for some employees but a small reduction for others For example, the Union proposed a classification of "welder-fitter" at $2 90 an hour. Thi' would have been a 5-cent increase for two men. But it proposed a classification or "welder , hand and are and automatic" at $2 80 an hour . This apparently would hai e resulted in a 5-cent increase for one employee and a 5 -cent decrease for another. ROY E. HANSON, JR., MFG. 261 Hanson called him back, saying that the meeting was "for all you boys, especially you, Elias." 11 When Hanson had the employees fully assembled , he read them a prepared speech. In it, he told the employees that he had heard that the Union had called a meeting for the following night in a possible attempt to obtain a strike vote. He said that a strike would last a long, long time , that the Respondent would continue to operate and would welcome any of them who wished to work during the strike. He cautioned, "We want you all to realize that any men who do not work during a strike may be replaced by new men ." He said that the Respondent had already arranged its trucking so that a picket line would not hinder the flow of material, that it believed a strike, "be it a year or longer," would not change its position in any matter regarding its current contract negotiations with the Union. He closed by saying that the Union was unable to provide jobs for their present members, while "you all are working now." At the meeting on June 24 , the membership voted to authorize Tanski to call a strike after first attempting to negotiate through the Federal Mediation and Concilia- tion Service. Following this, Tanski contacted that service and a mediator by the name of Jules Medoff was assigned. Medoff arranged a meeting for June 29 at his office. Medoff told Firth that he would like to have Hanson present . Firth called Hanson who said that he would be unable to come. Firth so told Bedoff, but the latter decided to proceed anyway. When Firth came in alone, Tanski asked him if he had authority to negotiate an agreement . Firth's answer is disputed . Tanski quoted Firth as saying , "Not any more than the letter of June 22nd." Firth denied saying this but did not testify what his answer to Tanski's question was. I consider it probable that Tanski did not use the word "authority ," but some substitute (perhaps "are you able" or "are you in a position to") which, to Firth's understanding , did not question his legal position as a negotiator . The answer which Tanski quotes Firth as making suggests that Firth took the question to be whether he would make any con- cessions toward reaching an agreement. In any event, Tanski objected to proceeding without Hanson. Firth and Medoff withdraw and returned later. Firth said he had telephoned Hanson and that Hanson had said he saw no reason to come down as he was not going to change his position . Tanski asked Medoff to order a meeting to be held with Hanson present. Medoff said he could order a meeting but could not compel Hanson to be present . Medoff did set another meeting for July 18 , but when he was informed by Firth that Hanson would not be present that day, he set Saturday, August 3, as the date for the next meeting. At the appointed time, 2 p.m., on August 3, 1961 , Tanski, Rubenstein, Mantillas, and another committeeman were present. When Hanson arrived with Firth, the meeting was called to order, but Firth immediately asked Medoff for a caucus. After a long period , Medoff returned alone to report that Hanson saw no point in coming to a meeting because he had not changed his position and did not intend to, that what he had offered was all he was going to do. Tanski told Medoff that this did not "con- stitute negotiations but ultimatums " and he insisted that Hanson come to the meeting. Medoff said he agreed and that he would see if he could brine Hanson in In 15 or 20 minutes Medoff returned with Hanson and Firth . Medoff asked Hanson if he was willing to make any changes in his proposals Hanson said he was making no changes Tanski turned to Medoff and complained that Hanson was not bargaining in good faith, and he told Medoff of the Respondent's unilaterally instituted insurance plan, which he said he thought to be an unfair labor practice . He told Medoff that be saw no chance of progress if Hanson persisted in his position Medoff began to discuss the issues on which the parties were at odds , explaining the history of union security and the accepted practices in regard thereto, the area practice as to paid holi- days, rates and classifications , and grievance procedure. Neither Hanson nor Firth said anything. and the meeting broke up Firth testified that in the caucus before the meeting, the Respondent had told Medoff that "there were some concessions we would make on a couple of classifications and wage rates ," but he conceded that these were not offered to the Union during the meeting. 4. Conclusions regarding good faith in bargaining The General Counsel relies on specific instances evidencing bad faith by the Respondent as well as on the whole course of bargaining. I shall first consider the specific items of evidence relied on by the General Counsel. "This finding is based on Mantillas' testimony Hanson did not recall saving this. Although Mancillas spoke with a Spanish inflection and appeared sometimes to mis- understand questions and, as a result sometimes to give apparently conflicting answers, I judged him to be an earnest and honest witness The quoted words found are not of the type that Mantillas would be likely to misunderstand 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a. Insufficient bargaining authority by Respondent 's attorney It is the General Counsel 's contention that Firth had no genuine authority to bargain. The Respondent claims that there is no evidence that Firth lacked au- thority. Because I believe that the Respondent does not understand what is entailed in the statutory obligation to bargain collectively with the exclusive represenative of its employees, I am of the opinion that any self-serving statements the Respondent may have made to the Union or even in testimony at the hearing with respect to Firth's authority "to bargain" would have little meaning . Like the mother in the jingle who granted her daughter permission to go in to swim provided she did not go near the water, the Respondent could tell Firth he was authorized to bargain but at the same time instruct him not to agree to any changes in existing conditions which Hanson did not first approve. The evidence convinces me that this is just what the Respondent did do. At no bargaining session did Firth advance any proposal of his own . His part was limited to telling the Union what Hanson would not agree to. The only concrete proposal made by the Respondent , the proposal for job descriptions, classifications, and rates, was prepared by Hanson . Firth's part appeared to be merely to present this . He not only could not make any altera- tions but did not know enough about the production line, the work requirements, the capabilities of employees, and other matters necessary to conceive of a workable deviation therefrom . Whenever the Union presented him with any new proposal, he did not weigh its merits himself. He merely said that he would present the Union's proposal to Hanson . This procedure clearly was used in the case of the Union's insurance plan proposal and in the Union's second proposed complete agreement and, on all the evidence , I infer that it was the procedure throughout . It is notable that, in the few instances where concessions were made by the Respondent, they were made at the Pomona bargaining session that Hanson attended . Although a lawyer who is a complete stranger to the employer's business may not be incompe- tent to bargain for the employer, he is at the disadvantage of not knowing what is and what is not reasonable in the employer's business . If, in such a case, the lawyer were given sufficient leeway to allow him to weigh reasonableness of a proposal-even as it appeared to him and not to the employer-to express the opinion that a proposal of the employees ' representative might be workable, and to seek to evolve ways to work out differences , he would be showing signs of inde- pendent judgment even if he preferred in some instances not to exercise it before speaking with his principal . He would at least be undertaking to make recommenda- tions which might break a deadlock . I find in this case , no evidence that Firth was free, himself, to determine reasonableness or to make recommendations to Hanson based thereon . He pictured Hanson as a rugged individualist who would agree to nothing he did not wish to agree to and pictured himself as without any persuasive ability to change Hanson's views on anything . In effect, Firth was saying, "It would be futile for me to recommend any changes to Hanson , so there is no use my analyzing your proposals " An employer's bargaining agent who is empowered only to tell the employees' collective-bargaining agent what has been told to him by the employer and to convey any reply to the employer does not have that degree of authority contemplated by the Act . 12 This was the extent of Firth's authority, and I conclude that it was not sufficient to permit genuine bargaining. b. Unilateral grant of insurance The General Counsel relies heavily on the Respondent's act of providing health and accident insurance for its employees without having presented it to the Union for neeotiation. The Respondent argues that this act should not be taken to be an unfair labor practice because group insurance had allegedly been under consid- eration for some time before the Union got organized and because the Respondent aereed to negotiate concerning insurance even after it had put its plan into effect. The Respondent cites Airfan Radio Corporation , Ltd, d/b/a KSFD-TV, 111 NLRB 566, and N L.R B. v. Benne Katz, etc., d/b/a Williamsbuig Steel Products Co., 289 F. 2d 700 (C.A. 2), in support of its contention . Neither is apposite. In the first case, the respondent , on the petition of a group of employees , formulated an insurance plan and put it into effect at a time variously fixed as between 3 weeks and 3 months before the election of the union involved . It was found that this 12 Fitzgerald Mills Corporation, 133 NLRB 877, and cases there cited: Han-dee Spring, Mfq Co . Inc, 132 NLRB 1542: A. E Nettleton Co , et a7, 108 NLRB 1070. enfd 241 F 2d 130 (CA 2). The Respondent cited Capital Transit Coinpann, 106 NLRB 169, in support of it contention that Firth's authority was sufficient The authority given here compares more nearly with that given in the Han-dee Spring case than that given in Capital Transit ROY E. HANSON, JR., MFG. 263 act did not interfere with the election . This is far from the situation in the Re- spondent's case, where the plan was put into effect after the election and while negotiations were continuing. In the second case, the court refused to enforce the Board's order because the Board had not accepted the Trial Examiner's finding of lack of good faith in overall bargaining and had found refusal to bargain only in the unilateral bestowal of certain benefits by the employer on his employees; and the Circuit Court of Appeals for the Second Circuit decided that such uni- lateral acts were not by themselves a refusal to bargain-that the Board would have to find specifically that the employer failed to bargain in good faith. This case is now before the Supreme Court on a writ of certiorari; but regardless of the outcome, I find that case distinguishable from this, first because here there is other evidence of refusal to bargain in good faith and, second, here bad faith does not rest on a mere presumption drawn from the bare act of the Respondent in institut- ing the insurance plan. Bad faith in instituting that plan was here demonstrated affirmatively in the Respondent's conscious, willful disregard of the Union's right. The Union, learning of the Respondent's intent to institute such a plan, protested to Attorney Firth, on the day before the insurance application was signed, that the Respondent was opening itself to an unfair labor practice charge, and Firth telephoned Hanson that same day to warn Hanson that he was "sticking his neck out" for a possible unfair labor practice charge. Nevertheless, Hanson disregarded this advice and proceeded to sign the insurance application the next day.13 This can hardly be looked upon as an innocent act. Hanson knew that the subject of insurance had been a topic of conversation among the employees for some time. He knew that this was one of the Union's principal demands and he knew, or should have known, that if he bypassed the Union and provided insurance to the employees, he would be taking much force out of the Union's demands and would be flouting the impotence of the Union, especially if he were to make no other major concessions to the employees or their bargaining representative during negotiations, as was the case here. The Respondent's claim, whether in mitigation or defense, that the Respondent had been planning an insurance program for nearly a year 14 is no excuse-21h months after the Union's certification and while bargain- ing meetings were being held-for bypassing the Union and presenting the plan to the employees only and then, disregarding the Union's protest, signing the in- surance application. This is a flagrant disregard of the employer's obligation under the Act and is, in itself, an interference, restraint, and coercion of the employees in the exercise of their rights under the Act as well as evidence of a refusal to bargain. c. Reluctande of Respondent's president and general manager to attend bargaining meetings The lack of authority of the Respondent's bargaining agent should be viewed in the light of the difficulty the Union had in getting Hanson to attend any of the bargaining conferences . At no time during the 41/2 months of attempted bargaining did Hanson show any genuine desire to reach an agreement by willingly attending 13 The date is fixed by the testimony of the insurance agent "I am not convinced that the Respondent was definitely planning an insurance pro- gram before the Union entered the picture Testimony that Hanson and his insurance agent discussed such insurance in October 1960 was not proof of definite planning "Discussing" could mean merely that the agent was doing his duty in attempting to sell Hanson on such insurance The same is the case with the other insurance companies mentioned Hanson testified that he "conferred with" Sanders, his insurance agent, and with others, who gave him plans He never testified that lie sent for these agents to learn their plans Hanson also testified that a notice was posted "late in 1960" saying that the Respondent expected to have a plan in effect on April 1, 1961. He testified that this notice remained posted for about 6 months and was taken down "the day I posted the notice that we had negotiated a plan and that was in ,Nlay, and-May" Actually, I find, it was late May Hanson did not have this notice, and no employee was called to testify to having seen it. Mancillas was the only employee to testify, and lie testified that the only notice he saw was one that said that, for the purpose of answering questions on the plan, the insurance agent would be in the plant on the following day- that is, the day after that on which the foreman distributed the leaflets showing compara- tive information on the plan favored by the Respondent and on the Blue Cross plan This occurred after the Union had presented its plan and after Firth had advised Hanson to be 'getting information on insurance plans It is notable, also, that Hanson did not, before May 24, 1961, tell Firth, even when the latter suggested his getting information on health and accident insurance plans, that he had already been working on such a plan. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining sessions . The one short appearance he made in early June followed the Respondent's most overt disregard of its statutory duty to bargain and the Union's protest of the unilaterally instituted insurance plan by the Respondent. Only in this one instance, after Firth had told Hanson that the Respondent was subject to an unfair labor practice charge, did the Respondent make any pretense of consider- ing the Union's demands. Only when the Respondent thought that the Union might file a charge did it arrange to have Hanson attend a meeting. Only then did Hanson make the few minor concessions he made in the whole course of bargaining. But this session lasted less than 2 hours, and in that time the Union was unable to reach one of the major issues-classifications of jobs and rates of pay. This was the topic on which Firth was least qualified, by his own admission, to negotiate, but Hanson, on leaving the June 7 (or 9) meeting, told Tanski that his (Hanson's) presence would not be needed thereafter and that the Union should, in the future, negotiate with Firth. This evasion of responsibility, as well as the timing of his ap- pearance, justifies the conclusion that Hanson was merely attempting to mend a broken fence and was not sincerely interested in reaching a workable agreement. If his refusal, at that meeting, to make any further appearance at bargaining sessions were not enough to show the Respondent's attitude of avoidance of its statutory obligation, Hanson's conduct in attempting to avoid a meeting with the Federal mediator would do it. Hanson failed to appear at the first meeting (June 29) set by the mediator. The only excuse offered then was that he did not see any reason to be there since he was not going to change his position (according to Tanski's testimony of what Firth reported) or that he "was unable" to attend (as testified by Firth). At the hearing, the Respondent made no effort to explain the reason for Hanson's failure to attend this meeting. When the mediator set the date of July 18 as the time of the next meeting, Hanson again said he would be unable to attend. When Hanson finally appeared at the meeting set by the mediator -for August 3, his lawyer immediately asked for a caucus. Firth and Hanson retired with the mediator and remained there for a long time, resisting any further appear- ance at the meeting. But when finally brought in, Hanson sat in silence except to say that he was not going to make any changes in his position. At the hearing. Firth testified that while in caucus with the mediator he and Hanson, who had talked about how far they were willing to go in making changes and who had discussed a couple of classifications in which Hanson might make a change,15 had "made our proposals to Mr. Medoff"; yet the Respondent made no proposals to the Union at all when Hanson and Firth returned to the meeting. Firth testified that Tanski did not produce his draft of a second proposed contract until the last meeting (August 3) and he denied having seen it before then. Yet neither he nor Hanson undertook even to read the draft, let alone to discuss it. Firth dismissed this by saying, in effect, that he suspected the draft contained only what the Union had previously offered. d. Delay in furnishing information Following certification , the Union on March 15, 1961, wrote a letter to the Respondent requesting certain information required in the forthcoming negotiations. The Respondent turned this letter over to its Attorney Firth, who did not answer it until March 28. When he did answer it , he evaded the request and withheld information on employees' names, dates of employment , rates, vacations, etc., although the Respondent was capable of furnishing such information. It was nec- essary for the Union to telephone and to write another letter for the information which the Respondent could have furnished earlier. The Respondent's first proffer of information in April was only such as the Respondent thought the Union had i5 I believe that an inference is warranted from Firth's testimony that a change was -contemplated . He was asked the following questions and gave the following answers Q Did he [Hanson] tell you with respect to what classifications he was willing to make a change? A. There was a discussion about a couple of classifications and they were dis- cussed , yes, sir Q Did he indicate to you how far he would go in making a change? A. Yes, we discussed it together Q At the second Medoff meeting, then, did you make any proposals to the Union with respect to those classifications" A We made our proposals to Mr Medoff Q Never at any time, then, did you tell the union that you were making any change with respect to those two classifications' A. We told it to Mr Medoff We did not convey it to the union at that meeting. ROY E. HANSON, JR., MFG. 265 already had-the names of employees , with their rates. Firth admitted that he was delaying in giving information while he tried to learn what the Umon's demands were. He did not, however, contend that any of the information requested would not have been necessary to enable the Union to negotiate on proper subjects of collective bargaining. When the Respondent finally, in May, gave the Union an outline of proposed job descriptions , classifications, and rates of pay, this was an entirely new proposal (except for the so-called base rate, which was the individual's existing rate ) and did not give descriptions of jobs as they actually were performed at that time. This was not, therefore, the information requested. So far as appears, the Respondent never did, before the hearing, describe the work of any of the employees to the Union, and the Union's knowledge was limited to what it was able to see in Tanski's and Rubenstein 's tour of the Respondent 's plant early in April or what it was able to get from employees. Although the Respondent sought to make it appear that it did not have classifications because employees were not confined to a definite type of work, such evidence as was presented at the hearing indicated that most employees (except when required to substitute for an absent employee) had fixed and definable duties, and the Respondent could have given the Union such information. I find that in such conduct the Respondent failed to deal in good faith with the Union. e. The Respondent's inflexibility The Respondent, in defending its failure to yield on major issues , relies on Section 8(d) of the Act . It contends that its representatives met at reasonable times, con- ferred allegedly in good faith, negotiated, and made concessions . Even if these facts were all conceded, except the good faith, which involves a conclusion of law, they would not necessarily overcome evidences of mere surface bargaining. It is true that Firth never refused to meet with the union representatives at reasonable times, but Hanson did, and as I have previously pointed out , Firth was not given authority to exercise any judgment of his own , and he was not qualified to bargain about job descriptions, classifications , or rates of pay. The testimony of Firth concerning the discussions at bargaining sessions was for the most part, given in general terms, merely mentioning the topics touched upon . From all the testimony of Tanski and Firth , however, I infer and find that the discussions between Firth and Tanski consisted mostly of proposals made by the Union and statements by Firth that Hanson would not agree to them or that he would carry the proposals back to Hanson. This is not what the Act envisions by the definition of collective bargaining in Section 8(d). Although collective bargaining is defined there as involving the act of conferring in good faith, good faith, itself, is not defined . It has been said that good faith requires "an open and fair mind, and a sincere purpose to find a basis for agreement ." 16 An open and fair mind presupposes a willingness to give and to understand cogent reasons and to be influenced by them when they cannot be refuted by equally cogent counter- vailing reasons. The provisions 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" may not be used as a conclusive answer to failure to reach agreement. If the parties show an honest purpose to reach agreement , failure to agree to a proposal or to make a concession thereon may not be taken as proof of bad faith . Whether or not such honest purpose to reach agreement exists, however, may be inferred from an employer's attitude toward proposals . An uncompromising attitude may be an indication of a purpose not to reach agreement ,17 and a predetermined inten- tion not to yield, without giving reasons or listening to opposing reasons , shows a disposition not to bargain 18 On the other hand , even the making of concessions does not necessarily show good faith . As stated by the court in N.L.R.B. v. Herman Sausage Company, Inc., 275 F. 2d 229, 231-232 (C.A 5): ... 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 concessions here and there, could be the very means by which to conceal a 16 Globe Cotton Mills v. N L.R B , 103 F 2d 91, 94 (C A 5). 14Bonham Cotton Mills, Inc, 121 NLRB 1235; Ameiacan Aggregate Company, Inc and Featherlite Corporation, 125 NLRB 909 ; Lewin-Mathes Company Dii,ismon of Cerro de Pasco Corporation, 126 NLRB 936: California Girl, Inc . 129 NLRB 209; "M" System, Inc, Mobile home Division Mzd-States Corporation, 129 NLRB 527, Fitzgerald Mills Corporation, 133 NLRB 877 le Cummer-Graham Company, 122 NLRB 1044; Merman Sausage Co, Inc, 122 NLRB 168; California Girl, Inc, supra ; Duro Fittings Company, 121 NLRB 377. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 be meeting with the Union for [the] purpose of collective bargaining." The Respondent claims that its good faith was demonstrated by concessions made in: (1) Hourly wage increases for a substantial number of employees, (2) report pay, (3) holiday pay, (4) overtime, (5) vacations, and (6) shift differentials. As previously stated, the only meeting when any of these alleged concessions were made (other than perhaps the first) was at the one attended by Hanson after he had put the Respondent's insurance program into effect unilaterally. Applying the description "concessions," however, does not present the whole picture. Taking the alleged concessions in order, I shall examine them. 1. Increase in hourly rates for a substantial number of employees: The wage rates were tied to the Respondent's unrealistic and unreasonable job classifications. In May, the Respondent provided the Union with a list of names of employees show- ing among other things the current rate received by the employee and the number of the proposed classification in which the Respondent apparently contended each would fall. A comparison of the employee's current rate and the current rate shown for his job classification number would indicate whether or not he would receive an increase. Initial inspection would show that 2 of the 27 employees listed and in employment at the time this proposal was given would have received a raise, one, a 5-cent raise, and the other, a 10-cent raise. The reason why such employees were then below scale does not appear. Hanson, at the hearing, iden- tified seven in all who would have gotten a raise. However, this number included three employees who were no longer with the Respondent at the time when the Respondent's proposal was first delivered to the Union and it also included two apprentices, currently making $2.40 an hour. As long as they were apprentices. they would, even under the Respondent's proposal, have continued to get $2.40. Any increases they got, therefore, could not be attributed alone to this proposal of the Respondent; it would be in part, or perhaps wholly, the result of their finishing their apprenticeship periods. The only other increase offered by the Respondent was one for the janitor Although the Respondent's reason for refusing any other increases was that its rates were in line with prevailing rates, it refused to consider evidence to the contrary. 2 Report pay: The Respondent agreed to pay 4 hours' pay to any employee called to work without being given work. It does not appear whether or not the Respond- ent had ever been obliged to send a man home after he properly reported for work. There was one instance when a man reported for work mistakenly thinking he was hired when he was not. The Respondent let him work for the full day that he reported before terminating his services. If a concession was made in report pay, it does not appear to be one which would have meant much to the Respondent 3 Holiday pay: The Respondent gave no paid holidays; but immediately after putting its insurance plan into effect unilaterally it offered to pay for Christmas Day if the holiday did not fall on a Saturday or Sunday This has the appearance of an appeasement offer. But even if it were not, the concession was a niggardly one. Aside from a nineteenth century attitude toward holidays, Hanson offered no ex- planation of his refusal to grant others. The Respondent did not offer financial inability, and it certainly did not justify itself on the basis of area practice. 4. Overtime: The only concession on overtime was the Respondent's agreement to pay double time after 55 hours a week. Mancillas testified that the only overtime he worked was about one Saturday a month. This would mean a total of 48 hours during a single week out of the month. The pay record of employee George Oliver, a favored employee, shows that he had worked more than 55 hours a week three or four times in 1961,19 three times before the Respondent's concession to pay double time after 55 hours a week was made. The Respondent appeared to be able to keep over- time well below the 55-hour line. I infer that Hanson did not expect this con- cession to cost the Respondent anything. 5. Vacations: It had been the Respondent's past practice to give a week's paid vacation for 1 year of service and 2 weeks' paid vacation for 2 years of service, closing down one shift at a time The exact manner in which this was worked does not appear, nor does it appear whether or not the shifts were closed down for 1 11 The Respondent wont from a weekly to a biweekly pay period in July 1961 and it is impossible after that date to determine the weekly orertime For a 2-week period in July, however, Oliver had 47'/i hours of overtime After that his biweekly overtime never equaled 30 hours, which, on average, would bring him to 55 hours a week No contention was based on this apparently unilateral change in pay period ROY E. HANSON, JR., MFG. 267 week or 2 weeks. If the shutdown was for 2 weeks, it would follow that employees with less than a year's service would, in effect, be laid off for 2 weeks, while those with more than 1 year's but less than 2 years' service would be paid only for the first week (at straight time for 40 hours) and nothing for the second week. The Union accepted the Respondent's vacation plan. If any concession was made in it at all, it was in the Respondent's agreeing to prorate the vacation pay during an em- ployee's second year. But Firth quoted Hanson as saying that sometimes he had and sometimes he had not so prorated previously. I conclude that this concession, too, was of a very minor nature. 6. Shift differentials: The Respondent had been paying a 10-cent shift differential for the second shift. It had no third shift, and there is no evidence that it planned to operate one. The Respondent, however, agreed to the Union's request for a 15- cent differential for the third shift. Here, again, the concession meant nothing to the Respondent. f. Conclusions as to Respondent's good faith in bargaining Although I have herein found individual instances of bad faith on the part of the Respondent, I rest my finding that the Respondent failed to bargain in good faith not alone on those individual instances but on the evidence as a whole, which shows that the Respondent sought to avoid reaching agreement with the Union . As stated in "M" System , Inc., Mobile Home Division Mid-State Corporation , 129 NLRB 527, 547: Good faith, or the want of it, is concerned essentially with a state of mind. There is no shortcut to a determination of whether an employer has bargained with the requisite good faith the statute commands. That determination must be based upon reasonable inference drawn from the totality of conduct evidenc- ing the state of mind with which the employer entered into and participated in the bargaining process. The employer's state of mind is to be gleaned not only from his conduct at the bargaining table, but also from his conduct away from it-for example, conduct reflecting a rejection of the principle of collective bargaining or an underlying purpose to bypass or undermine the Union manifests the absence of a genuine desire to compose differences and to reach agreement in the manner the Act commands. All aspects of the Respondent's bargaining and related conduct must be considered in unity, 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' International Union [(Pru- dential Ins. Co.), 361 U.S. 477] : . the significance of conduct, itself apparently innocent and evidently insufficient to sustain an unfair labor practice may be altered by imponder- able subtleties at work . . Activities in isolation may be wholly in- nocent, 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 to- gether as parts of a single plan [to frustrate agreement]. The plan may make the parts unlawful " An important aspect of collective bargaining is the opportunity it gives to ask why terms and conditions requested by one side or the other are not acceptable and the opportunity it gives to work out ways and means of avoiding, if possible, that which is objectionable to one party by modifying terms or by substituting other terms or conditions. It is obvious that, except for the brief time that Hanson appeared at a meeting in June 1961, the Union was not afforded such opportunity. It is also apparent that Hanson did not wish to be present at meetings in order to give the Union that opportunity. This was particularly apparent when Hanson appeared at the August 3 meeting with the mediator and chose to remain mute rather than discuss issues in the presence of the Union. Throughout the course of the Union's attempt to bargain, the Respondent ex- pressed a predetermined intention not to yield on major demands or even on certain demands which, in common practice, are considered reasonable and standard pro- visions in collective-bargaining agreements. In many instances, the Respondent of- fered no reason but prejudice for refusing the Union's proposals and turned a deaf ear to reasonable arguments. It never offered to the Union a complete contract pro- posal and it completely failed to offer its insurance plan to the Union. The only new written proposal made by the Respondent (and that was not prepared in writing for the Union, which had to make its own copies) was the job classification material. From the way that was set up, one might assume that it was intended to represent existing conditions and was therefore merely a furnishing of information rather than 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a proposal . But since the job descriptions shown in the Respondent's paper were. not as they existed at that tune, I shall consider the material furnished as if it had been intended as an offer of job descriptions, classifications, and rates of pay there- for. It was accompanied by information showing employees ' names, dates of hire, current hourly rate of pay, and job-classification number. If the classification an employee was shown as falling into was intended to show his current job, it was inaccurate . If it was intended as a proposal merely, then most employees would have received the same rate of pay but would have been subject to increased job qualifications. For example, Elias Mancillas, one of the union negotiating committee- men, was shown by the Respondent on its classification proposal as a "1st class. welder." His job was normally called "tank fitter." Even the name "1st class welder," itself, suggests higher qualifications than that either possessed or required of Mancillas in his actual work. He had never been required to do welding for X-ray inspection and, for the most part, he just did spot welding ; but the Respondent's classification proposal stated as prerequisites for that job not only the installation of all sized tank heads (work which Mancillas could do) but also "welding of plate to X-ray quality... ... (which Mancillas could not do and had never been required to do). The same was, I infer, true of other employees who were proposed by the Respondent to be put into the new classification of first-class welder, for the Respond- ent listed seven employees in this class, and few were X-ray qualified welders. Furthermore, Hanson, at the hearing, conceded that a number of employees pro- posed to be put into the classification of first-class welder could not install all sized tank heads, one of the new prerequisites for them. Normally, a collective-bargaining contract gives wage rates according to classifications on jobs and does not list wage rates of individual employees, and it does not appear that the Union here sought to contract for individual rates. This being so, the Respondent would have been at liberty, if a contract had resulted based on its proposed classifications, to downgrade most of its employees for lack of qualifications for the classification which paid his current wage rate. The result could have been a wholesale reduction in pay which the Respondent could blame on the Union . On the face of it, this proposal is a good example of finesse in refusing to bargain , because the Respondent appears to be mak- ing a proposal but knows that it cannot be accepted by the Union . Furthermore, at no time was the Union given an opportunity to bargain concerning classifications, because Firth could not bargain about them, and Hanson refused to appear for bar- gaining about them Hanson's only appearance after the short meeting in Pomona in early June was on August 3 , when the mediator succeeded in getting him to come, and at that meeting Hanson so firmly indicated that be was not going to change any- thing that he stifled any chance the Union might have had to talk about classifications and rates therein. The Union, in an effort to get an agreement, had presented a second proposal scaling down its demands to a point where it would get little in the way of gains for the employees. But the Union was still willing to bargain even about those demands at the August 3 meeting, while the Respondent adamantly declined even to con- sider the Union 's latest proposal. On all the evidence , I find that the few minor concessions made by the Respondent did not demonstrate an overall good faith in bargaining . I find that such conces- sions fell far short of indicating a purpose to reach agreement . In fact, its conduct clearly demonstrated that the Respondent sought to avoid any kind of contract with the Union . By its refusal to bargain with the Union in good faith , the Respondent engaged in unfair labor practices in contravention to Section 8(a)(5) and ( 1) of the Act. B Interference, restraint, and coercion The complaint alleges that by Hanson's speech on June 23, 1961, hereinbefore related, the Respondent, independently of other alleged unfair labor practices, in- terfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in the Act. The portion of the speech alleged to infringe upon the rights of employees was the statement that "anv men who do not work during a strike may be replaced by new men " This, the General Counsel argues, might be a permissible statement respecting an economic strike, but the General Counsel contends that "since the evidence in this case establishes that the Respondent was refusing to bargain in good faith with the Union . . . a strike of the Respondent's employees would have been an unfair labor practice strike," the Respondent would not have been privileged to discharge or permanently replace any strikers . Hence, the General Counsel reasons, Hanson was, in effect, saying that even if they were unfair labor practice strikers they might be permanently replaced. The General Counsel, in support of his argument, cites Sherry Manufacturing Company, Inc, 128 NLRB 739, and Fitzgerald Mills Corporation, 133 NLRB 877. In both of these ROY E. HANSON, JR., MFG. 269 cases a strike had already taken place. The first case involved a refusal to rein- state strikers, found by the Board to be unfair labor practice strikers, upon their un- conditional application. In the second case, the employer not only denied rein- statement to certain unfair labor practice strikers but also insisted, as a condition to negotiating a contract, that the Union waive the reinstatement rights of the strikers. In the case at hand, no strike had yet occurred. It would be presumptuous, then, to say, that any strike that occurred would necessarily have been an unfair labor practice strike because unfair labor practices had been committed. Even after a strike commences, its character is not determined alone by whether or not unfair labor practices preceded it 20 Since I cannot, at this time, with certainty, decide that any strike the Union might have called would have been an unfair labor practice strike, I cannot conclude that Hanson's statement exceeded the bounds of free speech. Accordingly, I find no independent violation of Section 8(a) (1) of the Act in this part of Hanson's speech, although I do find that that speech character- ized the Respondent's adamant attitude toward negotiating a contract. C. Discrimination in employment 1. The history of Mancillas' employment Elias Mantillas was hired by the Respondent in October 1956. By April 1961, he was the second oldest employee in point of years of service. When he started, there was only one shift, but in 1958 a night shift was started and Mancillas was trans- ferred to that. His job, called "tank fitter," required him to install tank ends, or heads. There was but one employee on the day shift and one on the night shift who did this work regularly. Sometimes, when Mancillas was absent, an employee named Sousa would do Mantillas' work. The Respondent's rates of pay in April 1961 ranged from $1.75 to $2.85. Manillas, along with seven other employees, received the highest rate. No contention was made that Mancillas was not well qualified for his job. Hanson testified that the work of fitting heads on a tank re- quired a knack, that some could adapt themselves to do it and others could not. It was one of the few jobs, Hanson testified, in which he could not instruct well. "The foreman can hit it with a hammer and it goes right together, and yet I can tell them and it doesn't do it; it takes a knack. . . . If you know what you are doing, it goes together easily." For at least 3 years before March 1961, an employee named George Oliver had been the tank tester. That job was, according to Hanson, the nastiest place to work. Oliver was taken off that job and was put on a variety of work. Hanson testified, that from March until July 1961, Oliver was learning to fit tank ends to the cylinders (Mancillas' work) and that he was so training him to use him on the new production line that was being constructed. This testimony was at variance with Mancillas' testimony, which will be related below and which I find was accurate. Hanson testified that, because he was going to use Oliver for the fitter-welder's job on the new production line, he assigned Oliver to work with Mancillas. Mancillas fixed the time when Oliver worked with him as only the 2 or 3 weeks before his termination, hereinafter related. I have scrutinized the testimony and the exhibits carefully and have reached the conclusion that, although Oliver was used here and there and received some training on several jobs, he did not receive extensive training in Mancillas' type of work. Mancillas testified that during the first half of the year 1961, Oliver had been transferred around from place to place, learning various jobs. Oliver, himself, did not testify. Hanson testified that Oliver had spent a short period of time on the presses but that most of his other work had been assisting others who were putting on heads 21 or doing maintenance work. This maintenance work accounted for the extensive amount of overtime work which he had. Accord- ing to Mancillas, however, even when Oliver did work with him, Oliver did not work with him steadily. Oliver, he testified, would work on one or two heads a night and then "worked just the seam." From this, I conclude that Oliver did little or no fitting of heads, which was the more difficult part of Mancillas' job and that his training on Mancillas' work was comparatively superficial. On September 7, 1961,22 about 20 minutes before the usual midnight quitting time, Stowe-Woodward, Inc., 123 NLRB 287; Clinton Foods, Inc, 112 NLRB 239 21 Mancillas was the only one on the night shift capable of installing the largest heads It is possible that Oliver might have assisted employees who were fitting heads on small tanks. ?a Mancillas testified that the date was September 6, but I notice that in the charge which he signed on September 11, 1961, he gave the date as September 7, as does the com- plaint On the other hand, he testified that the pay period started on Thursday, ended 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the foreman, identified as Arnold Cearley, called Mantillas to the shop office. When, Mancillas arrived, Cearley asked Mancillas if he had had an argument with Hanson. Mancillas said, "No," and asked why. Cearley showed Mantillas that he had his time-- card and his paycheck and said that Hanson had told Cearley to give Mantillas his paycheck by 12 o'clock, that it was Mantillas' last night This was not customary payday. Cearley told Mantillas that he was giving the check to him 20 minutes early so that Mancillas would have time to pick up his tools. Mancillas asked Cearley why he was being put out of work. Cearley replied that he did not know, that there was no reason 23 Mancillas told Cearley he thought it was because he had represented the Union at several of the union negotiating meetings Cearley said, "Probably." Mancillas picked up his tools and left. When Mantillas applied for unemployment compensation, he learned that the Repsondent had given "layoff" as the explanation, of his termination. Hanson, in explanation of Mantillas' alleged layoff, testified that he laid Mancillas off to provide a job for Oliver, for whom the Respondent then had no other work. Just before that date, Hanson testified, Oliver had been working on the preparation of the new production line, installing racks, jigs, and fixtures, but that Oliver had made several errors because he lacked training in layout work and that Hanson had decided that Oliver was incapable of doing that work, that he had for some time planned to put Oliver on the tank fitter's job on the new production line when it started, but that, since that line had not yet started, he decided to use him on the regular night-shift production line in place of Mantillas, deeming Oliver to be better qualified to perform the fitting job than Manclllas. He was also influenced in his favoring of Oliver, he explained, by the fact that Oliver had worked for him at his home and still did, that Oliver's brother and the brother's wife had worked for Hanson's wife for years while she was a child, and that the brother's wife still' worked for Hanson's mother-in-law; so Hanson felt somewhat obligated to Oliver.24 Hanson added in a later portion of his testimony that he also thought there might be a suspicion of racial prejudice among his colored employees if he had laid off Oliver (who was colored) instead of Mancillas, and that this would have created a problem for him. This belated addition impressed me as made in afterthought and that this explanation was not one that had occurred to Hanson before. I note that the Respondent had a number of employees (perhaps one,third of all the em- ployees) who had apparently Spanish names. If racial prejudice were to be sus- pected by employees, those with a Latin background would appear just as likely to have felt injured by Mantillas' termination as would colored employees at Oliver's layoff. According to Hanson, the new production line was started on November 5 or 6.25 On Thursday, November 2, 1961, the Respondent sent Mancillas a telegram reading: Fitting job on new line now open and we recall you to work. Start Monday 6 a.m. if your [sic] plan to resume employment with us On the following day, Mancillas replied by wire that he would be unable to report for work until he had obtained advice from the Union and that such advice was not then available. At the hearing, however, Hanson testified that if Mancillas should return to the Respondent's employ, he would return not to the new line on the day shift but to his old job on the second shift and that Oliver would be transferred to the new line.26 Although, if Mancillas was the victim of discrimination, he would not on Wednesday, and that payday was on Friday He might have been terminated on September 6, on Wednesday and the end of the pay period, but on September 11, when he gave the date of his termination as September 7, his memory should have been clearer than at the time of the hearing No effort was made to check the date by Mancillas' payroll record 21 Hanson testified that he had told the foreman to lay Mancillas off until the new pro- duction line was in operation. The foreman did not testify I credit Manclllas' testimony as to what the foreman told him at the time of Mancillas' termination. This casts doubt on Hanson's testimony. 24 This explanation is less understandable when it is considered that for 3 years Hanson left Oliver on tank testing-the nastiest place to work 25 Hanson gave the year as 1960 It is uncertain whether or not Hanson was speaking about the commencement of installation or if he misspoke, intending to say that produc- tion on that line started on November 5 or 6, 1961 The latter is more likely what lie intended, because he identified the day as Monday, and in 1960 Monday fell on November 7, while in 1961 it fell on November 6 2e Hanson testified that Oliver was still on Mancillas' job at the time of the hearing. Starting in October, Oliver, who had a rate of $2 75 plus a 10-cent differential when he- worked nights, was shown to have a pay rate of $2 95 an hour. As this was not shown ROY R. HANSON, JR., MFG. 271 have been fully reinstated unless he returned to the same shift, with shift differential pay,27 the General Counsel made no contention that the Respondent's November 2, 1961, offer of a job on the new production line was not a proper offer. Before Mancillas was allegedly laid off on September 7, 1961, the Respondent had never laid off anyone except once in the spring of 1960 when there was a partial curtailment of hours for the plant. Mancillas, however, was not then laid off. The evidence shows that the Respondent was not short of work in September 1961. Its plans to operate an additional production line indicated a prospect of expansion and growing business. During August 1961, the Respondent lost four employees (not counting one who started to work in error), and, in the same month, it hired six new employees (not counting the one who started in error). Thus, just before Mancillas' separation, the Respondent had a net gain of two employees. Before the Respondent offered reemployment to Mancillas, it had lost four more employees and hired an equal number of new ones. Hanson explained the Respondent's failure to recall Mancillas earlier by saying that Mancillas would have had to be trained for any of the jobs that became vacant and, by the time he was trained, the new production line was expected to be open and Mantillas would then have been transferred to that This reasoning is not very convincing. In the first place, the Respondent had, according to Hanson, planned to put Oliver on the new line, and this would have been more sensible, since the work on the new line was easier and Oliver, as a comparative beginner, could have become proficient sooner. But in the second place, Oliver, according to Hanson, was a second-class welder and was also capable of operating the presses. On September 14, 1961, a man who had been hired on August 17 was discharged for damaging the press. Had the Respondent actually intended to lay Mancillas off only until work was available, it could then have recalled Mancillas to his old job and put Oliver on the press temporarily. Two men who had worked on the presses quit on September 23 and 29, respectively. Among new men hired were welders. Oliver could have done their work. One was a poor welder anyway. Hanson testified that he did not put Oliver on the press because that job paid only $2.60 as against Oliver's rate at that time of $2.75. Since Oliver was, if at all, likely to be short of work only temporarily, a prudent manager might prefer to pay him his regular rate for working on any other job rather than risk a permanent loss of an experienced and competent fitter by laying the latter off. This does not appear to be an exercise of the acumen displayed by Hanson in other respects. By Hanson's own admission, the fitter's job required "extensive" training. Judging from the turnover in employment which the Respondent had experienced between August and November, I judge that the Respondent was not having a simple time finding qualified workmen and men who were willing to stay on the job. Hanson testified that the fitter they had on the new production line at the time of the hearing was not proving satisfactory, even though the work there was easier because they were fitting only smaller tank heads. I am not persuaded that, on September 7, when there was allegedly no work for Oliver, the Respondent could not have found other work for Oliver and avoided laying off the second oldest employee in the plant. Nor am I convinced that an employer with no ulterior motive would have laid off Man- tillas, who admittedly had the required knack for his work and have replaced him with Oliver, an employee relatively inexperienced on the fitter's job, for, on all the evidence, I am convinced and find that Hanson's testimony of the extent of training that Oliver had received on the fitter's job was exaggerated and that Oliver was not as good a fitter as Mancillas. The Respondent knew that Mancillas was active in the Union. On two occasions when Hanson was present at meetings with the Union, Mantillas was present as a committeeman-once in early June, in Pomona, when Mantillas was the only employee representative present, and once on August 3 when Hanson made his extremely reluctant appearance before the mediator. Mancillas was also present at other meetings to the knowledge of the Respondent's attorney On appearances, Mancillas was the most consistent committeeman and apparently the most active union member among the Respondent's employees. On the evidence presented, I deduce that Hanson resented being pressured to attend meetings before the mediator. It can be inferred that some of that resentment was directed toward Mancillas. Although Foreman Cearley did not know that Hanson's motive in terminating Man- cillas was to eliminate the most active unionman in the plant, the very fact that Mancillas would have been terminated at all appeared to Cearley to be explainable with a night-shift differential, it would appear to be a day-shift rate. No explanation of this was given z' See Brown and Root, Inc, et al., 132 NLRB 486. 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD only on the theory of Mancillas' union activities. Considering this, the weakness of the Respondent's excuse for allegedly laying Mantillas off, and all the evidence in the case, I conclude and find that the Respondent, in terminating Mantillas on Sep- tember 7, 1961, discriminated in regard to his hire and tenure of employment, thereby discouraging membership in a labor organization within the meaning of Section 8(a) (3) of the Act IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since I have found that the Respondent has engaged in unfair labor practices, I shall -recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Accordingly, I shall recommend that the Respondent, upon request, bargain collectively with the Union, and, if an under- standing is reached, embody that understanding in a signed agreement. With respect to the discharge of Elias Mantillas, the General Counsel concedes that he was offered reinstatement on November 2. From testimony of Hanson at the hearing, it appears that the Respondent continued its offer of reinstatement and was still prepared to reinstate Manillas. The only remedy required to efface the unfair labor practice as to Mantillas, therefore, will be to make him whole for any loss he may have suffered at a result of the discrimination against him, and I shall so recommend. Because the Respondent, by its conduct in failing and refusing to bargain in good faith with the Union and by its discrimination against Elias Mancillas, thereby dis- couraging membership in a labor organization and interfering with, restraining, and coercing employees in the exercise of the rights guaranteed in the Act, has demon- strated a disposition to circumvent the Act and to subvert the purposes thereof, the remedy should be coextensive with the threat of future violations. I shall, therefore, recommend a broad cease-and-desist order. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees, including plant clerical employees, but excluding office clerical employees, professional employees, guards, and super- visors as defined in the Act, constitute a unit appropriate for the purposes of col- lective bargaining within the meaning of Section 9(b) of the Act. 4. On, and at all times since, March 14, 1961, the Union was, and has been, the exclusive representative of the Respondent's employees in the aforesaid appropriate unit for the purposes of bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment within the meaning of Section 9 (a) of the Act. 5. By failing and refusing to bargain collectively with the Union as the exclusive representative of the employees in the unit described in paragraph 3, above, from and after March 15, 1961, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 6. By discriminating in regard to the hire and tenure of employment of its em- ployee, Elias Mancillas, thereby discouraging membership in the Union, the Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 7. By engaging in the unfair labor practices set forth in paragraphs 5 and 6, next above, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, within the meaning of Section 8 (a) (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. ROY E. HANSON, JR., MFG. 273 RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, I recom- mend that the Respondent, Roy E. Hanson, Jr., Mfg., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith with the Union as the ex- clusive bargaining representative of its employees in the appropriate unit with respect to rates of pay, wages , hours of employment, and other terms and conditions of employment. (b) Discouraging membership in the Union, or in any other labor organization of its employees, by discharging, laying off, or in any other manner discriminating against any of its employees, in regard to hire, tenure of employment , or any term or condition of employment. (c) In any other manner interfering with, restraining , or coercing its employees in the right to self-organization , to form labor organizations , to join or assist the Union, or any other labor organization , to bargain collectively through representa- tives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized in Sec- tion 8 (a) (3) of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with United Steelworkers of America, AFL-CIO, as the exclusive bargaining representative of the Respond- ent's employees in the appropriate unit, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment , and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Make whole Elias Mancillas for any loss suffered by him as a result of the discrimination against him by paying him a sum of money equal to that which he would have earned, or otherwise have been entitled to receive, in the Respond- ent's employ between September 7, 1961, the date of his termination, and November 2, 1961 , the date of the Respondent's offer of reinstatement , less his net earnings elsewhere during said period . Such sum shall be computed upon a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. (c) Preserve and, upon request , make available to the Board or its agents, for examining and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of these Recommendations. (d) Post at its plant in Los Angeles, California , copies of the notice attached hereto marked "Appendix." 28 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall , after having been duly signed by an authorized representative of the Respondent , 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 to ensure that such notices are not altered , defaced, or covered by any other material. (e) Notify the Regional Director for the Twenty-first Region, in writing, within 20 days from the date of service of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply herewith.29 I further recommend that the complaint be dismissed insofar as it alleges that the Respondent engaged in an unfair labor practice by telling its employees that strikers could be replaced. 28 In the event that these Recommendations be adopted by the Board, the words "A Deci- sion and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" In the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order " "In the event that these Recommendations be adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for the Twenty-first Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " 649856-63-vol. 137-19 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in United Steelworkers of America, AFL-CIO, or any other labor organization of our employees, by discriminating against any of our employees in regard to hire or tenure of employment or any term or condition of employment , because of the union membership or activity of such employees. WE WILL NOT refuse to bargain collectively exclusively and in good faith with United Steelworkers of America, AFL-CIO, as the certified bargaining representative of our employees in the appropriate unit described below. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist United Steelworkers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities , except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as amended WE WILL, upon request, bargain collectively with United Steelworkers of America, AFL-CIO, as the exclusive representative of all employees in the appropriate unit described below, with respect to wages, rates of pay, hours of employment, or other terms or conditions of employment , and, if an understanding is reached, we will embody such understanding in a signed agreement . The bargaining unit is: All production and maintenance employees , including plant clerical employees, but excluding office clerical employees , professional employees, guards, and supervisors as defined in the Act. WE WILL make Elias Mancillas whole for any loss he may have suffered as a result of the discrimination against him. All our employees are free to become, remain , or refrain from becoming or remaining, members of the above-named or any other labor organization. ROY E. HANSON, Jr., MFG., 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. Employees may communicate directly with the Board 's Regional Office, 849 South Broadway, Los Angeles , California, Telephone Number, Richmond 9-4711, Exten- sion 1031 , if they have any question concerning this notice or compliance with its provisions. Dal-Tex Optical Company, Inc. and International Union of Elec- trical, Radio and Machine Workers, AFL-CIO. Case No. 16- CA-1560. May 24, 1962 DECISION AND ORDER On February 8, 1962, Trial Examiner Lloyd R. Fraker issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in 137 NLRB No. 27.