Exchange Parts Co.

710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD taken by the Respondent to insure that said notices are not altered , defaced, or covered by any other material. (c) Notify said Regional Director, in writing, within 20 days from the receipt of this Intermediate Report, what steps the Respondent has taken to comply herewith .9 It is recommended that unless on or before 20 days from the date of the receipt of this Intermediate Report and Recommended Order the Respondent notify said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. 911a the event that this Recommended Order be adopted by the Board, this provision shall be modified to read:: "Notify said Regional Director, in writing, within 10 days from the (late of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Rela- tions Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL, upon request, bargain collectively with International Union of Op- erating Engineers, Local No. 1, as the exclusive representative of the following employees: All shift engineers, apprentice engineers, maintenance men, helpers, and oilers employed by us at our plant at East 53d Avenue and Franklin Street in Denver, Colorado, excluding all other employees, guards, professional employees, and supervisors within the meaning of the National Labor Relations Act. WE WILL NOT, by unlawfully refusing to bargain with International Union of Operating Engineers, Local No. 1, or in any like or related manner interfere with, restrain, or coerce our employees in violation of the National Labor Relations Act. UNITED FRYER AND STILLMAN, 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, 609 Rail- way Exchange Building, 17th and Champa Streets, Denver 2, Colorado, Telephone Number, Keystone 4-4151, Extension 513, if they have any question concerning this notice or compliance with its provisions. Exchange Parts Company and Exchange Parts Company, Re- builders Service Company, and Southwest Shoe Exchange Company and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Subordinate Lodge No. 96. Cases Nos. 16-CA-1579 and 16-CA- 1590. October 3l, 1962 DECISION AND ORDER On June 11, 1962, Trial Examiner Barney Donovan issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate 139 NLRB No. 46. EXCHANGE PARTS COMPANY 711 Report. The Trial Examiner also found that the Respondents had not engaged in certain other unfair labor practices and recommended that the complaint be dismissed as to such allegations. Thereafter, Respondents filed exceptions to the Intermediate Report and a sup- porting brief. 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 [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recom- mendations 2 of the Trial Examiner with the following additions : 1. We find, in agreement with the Trial Examiner, that Respond- ents violated Section 8(a) (5) and (1) of the Act by their unilateral conduct in laying off employees without appropriate notice to, and consultation with, the employees' certified representative and in with- holding the annual Christmas bonus. Both of these matters, relating as they did to wages, hours, and other terms and conditions of employ- ment, are mandatory bargaining subjects concerning which Respond- ents could not, with impunity, act unilaterally in derogation of the statutory obligation to bargain thereon.3 2. We also find, in agreement with the Trial Examiner, that Re- spondents violated Section 8 (a) (5) and (1) of the Act by their failure to discharge their statutory obligation to meet and confer in good faith at reasonable times and intervals. However, in so holding, the Trial Examiner implied that the violation rested solely upon the in- frequency of the meetings held.' We do not so limit the basis of our finding. We are not prepared to say, nor need we determine here, that any specific schedule of meetings, standing alone, would or would not dis- I The February and March meetings of the parties were held in the year 1962, instead of 1961, as indicated in the schedule of meetings set forth in the Intermediate Report We note and correct this inadvertent error z In the absence of exceptions, we adopt pro forma the Trial Examiner's finding that Respondents did not violate Section 8(a) (1), (3), and (4) of the Act, as alleged, or Section 8(a) (5) by their conduct related to supplying employee classifications, and his recommendation that the complaint be dismissed in these respects Regarding the 8(a) (3) and 8(a) (4) allegations as to Bowman, while we do not disagree with the Trial Examiner's conclusion that Bowman was discharged for cause, as we are adopting those conclusions pro for ma, we find it unnecessary to pass upon his other statements concerning this aspect of the case 3 See N L R R v Benne gate, etc , d/b/a Williamsburg Steel Products Co , 369 US 736. Both the layoffs affecting employee tenure and elimination of the Christmas bonus affecting employee pay are types of unilateral action covered by the Supreme Court's decision 4In the final paragraph of the section of the Intermediate Report devoted to this aspect of the ease, the Trial Examiner stated : "In my opinion, Respondents have not so bar- gained by reason of the fact that they have not met and negotiated with the Union at reasonable frequency." Respondents have excepted to such a finding. 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD charge the duty imposed upon the parties by statute.5 For meetings do not occur in the abstract but are the result of efforts put forth by the parties. A given schedule would not reflect the amount of effort required, and by whom, to secure the meetings, or the degree of co- operation or resistance encountered. Nor would it indicate the amount of time and frequency of meetings necessary to resolve the problems with which the parties were confronted. Thus, the schedule of meet- ings held is material to the question of whether there has been a breach of the obligation to bargain collectively, but its significance is de- pendent upon the entire context. In the case before us, the context includes the history of Respond- ents' persistent opposition to the principle of representation and col- lective bargaining as demonstrated by their conduct since the outset of the Union's initial organizing campaign. Thus, as indicated in the cases referred to in the section of the Intermediate Report entitled "Background," Respondents' opposition to the Union's initial efforts to organize the employees first took the form of interference, restraint, and coercion of employees in the exercise of the rights guaranteed to them by the statute during the preelection period.' Coercive conduct similarly violative of the Act continued through the second organiz- ing campaign broadening into unlawful discrimination against union adherents for the purpose of discouraging union activities. Despite such activities by the Respondents, the employees selected collective representation in the Board-conducted election and the Union was certified. However, without regard for their duty there- after to bargain with the certified representative, Respondents pro- ceeded to engage in the unilateral conduct herein found unlawful. Thus, within a few days after the certification, Respondents, without notice to, or consultation with, the statutory bargaining representative, proceeded to lay off employees. And although the Union protested such action, gave written notice that it was to be advised in advance of any future layoffs, and specifically requested discussion of such mat- ters and inquired as to whether another layoff was impending, the Respondents, within a month after the Union's certification, again laid 8 The statute creates the mutual obligation for employers and unions alike to minimize industrial strife through collective bargaining : Section 8 ( a) (5) makes it an unfair labor practice for an employer "to refuse to bargain collectively with the representative of his employees , . . ; Section 8(d) defines "to bargain collectively" as "the performance of the mutual obligation . . to meet at reasonable times and confer in good faith with respect to . . . the negotiation of an agreement . . ; and, in order to fulfill this obli- gation, Section 204 calls upon each party to "exert every reasonable effort to make .. . agreement . . . [ and] whenever . . a conference is requested by a . . prospective party . . . arrange promptly for such a conference to be held and endeavor . . to . . expeditiously . ." bring about a resolution of disputes over contract terms. 6 Previous decisions by the Board covering the conduct referred to herein as back- ground are reported in 131 NLRB 806 and 136 NLRB 247. We note that enforcement of the first-mentioned decision was denied by the U.S Court of Appeals for the Fifth Circuit on June 22 , 1962 ( 304 F. 2d 368 ). With due deference to the opinion of the court, the Board respectfully disagrees and adheres to its original position. EXCHANGE PARTS COMPANY 713 off employees without adequate notice to or any real opportunity for consultation with the Union. This conduct at the very beginning of the bargaining relationship gave rise to a series of transfers and re- calls creating a constant flow of grievances. In addition, 5 months later, while the parties were still bargaining, Respondents unilaterally changed employee benefits by the nonpayment of the Christmas bonus regularly paid in prior years. These circumstances alone reveal that the Respondents' purpose was to frustrate the collective-bargaining process and avoid reaching agreement. But we find further evidence of this in the delaying tactics adopted in connection with the sched- uling of meetings. Because the Union was the newly certified representative of the em- ployees, and there had been no prior collective-bargaining contract, the parties were of necessity faced with the task of negotiating an initial complete contract with all the detail that such an undertaking would entail. Yet the schedule of negotiating meetings actually held discloses that bargaining sessions consumed an average of only 8 hours a month over an 8-month period. Such a schedule on its face hardly reflects a concerted endeavor by the parties to put forth an effort com- mensurate with the enormity of the task facing them, particularly as there is no evidence that at any stage in such negotiations the parties were near reaching agreement. The record establishes, however, that the Respondents alone were responsible for the delay and that even these few sessions were achieved only through the perseverance of the Union's negotiator. Thus, as more fully set forth in the Intermediate Report, credited and uncontradicted testimony establishes that at no time did Respondents' attorney, Karl Mueller, who was in charge of negotiations and of scheduling meetings on their behalf, initiate any arrangements for bargaining sessions or actively cooperate in setting them. On the contrary, at the end of each such meeting the Union's negotiator requested Mueller to fix a date for the next meeting. On every occasion Mueller indicated that he would be unable to commit himself to any particular date until he consulted his schedule. He promised to do so and to call the Union's negotiator on a designated day or within a specified period. Such stated time invariably passed without the promised call. The union negotiator then found it neces- sary, because Mueller was either absent or otherwise unavailable, to make repeated calls before he could ultimately make contact with Mueller and obtain a specific date for the next meeting. The Board has on a number of occasions emphasized that the duty to make expeditious and prompt arrangements to meet and confer is a positive legal duty which is an essential part of the obligation to bargain.' There can be no doubt but that agreement is stifled at its I See Bairgie Vinegar Company, 71 NLRB 829 ; J. H. Rutter-Rex Manufacturing Com- pany, Inc., 86 NLRB 470; Cates Bros, Inc, 135 NLRB 1295 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD source if opportunity is not accorded for discussion or is so delayed as to invite or prolong unrest or suspicion. Therefore, the exercise of a reasonable degree of diligence and promptitude in arranging meet- ings for the purpose of eliminating obstacles to agreement is an obliga- tion placed upon each party. The manner of the performance of this obligation by the negotiator is relevant in determining whether there has been a good-faith discharge of this positive legal duty im- posed by statute. If a given negotiator becomes indisposed or is other- wise unable to discharge this responsibility because of other commit- ments, it is the duty of the party involved to designate a negotiator who can fully discharge this obligation.' Passively waiting for the other party to make all requests for bargaining meetings, protracted delays in arranging for the meetings requested by the other party, and failure to advise as promised when another meeting could be arranged, are variations of negative conduct which has been held by the Board and courts to impede the bargaining process and otherwise frustrate negotiations so as to evidence a lack of regard for this aspect of the bargaining obligation.9 As indicated above, the record here reveals ample evidence of nega- tive behavior on the part of Respondents' negotiator with respect to making arrangements for bargaining sessions. We cannot view this passive and uncooperative approach as indicating the exertion of every reasonable effort to meet and confer which was Respondents' legal duty. Indeed, in the circumstances, the conduct here involved not only displayed a singular disregard for this positive legal duty but also inhibited the actual progress of negotiations by stifling the very opportunity for discussion. Such a course of obstructionist behavior reflects a cast of mind lacking in good faith. As recently explicated by the Supreme Court in another, but not unrelated, context : 10 a circumvention of the duty to negotiate . . . frustrates the objectives of Section 8(a) (5 much as does a flat refusal .. . . ... the Board is authorized to order the cessation of behavior which is in effect a refusal to negotiate, or which directly ob- 8 See Martin Brothers Boo Company , 35 NLRB 217, enfd. 130 F. 2d 202, 207 (C.A 7), cert denied 317 Ii S. 660; Walter Paterson , Sr. doting business under the trade name and style of Paterson Steel & Forge Company, 96 NLRB 129 , 140, "M" System, Inc., Mobile Home Division Mid-States Corporation, 129 NLRB 527 ; Fetzer Television, Inc, 131 NLRB 821, 831, enfd 299 F. 2d 845 (CA 6) s See cases cited in footnotes 7 and 8, supra Also see Gagnon Plating and Manufac- turing Company, 97 NLRB 104 , 107; Derenson's, 104 NLRB 273, 286; Cummer-Graham Company, 122 NLRB 1044, enforcement denied on other grounds 279 F 2d 757 (CA 5) ; Butches Boy Refrigerator Door Company , 127 NLRB 1360, enfd 290 F. 2d 22 (C.A 7), rehearing denied June 9, 1961 is N L R B v Benne Katz, etc, d/ b/a Willianisbus g Steel Products Co , footnote 3, supra. EXCHANGE PARTS COMPANY 715 structs or inhibits the actual process of discussion, or which re- flects a cast of mind against reaching agreement . . . . Respondents advance as justification for the delays,, the difficulties in arranging meetings and the limitations upon the time spent in negotia- tions, the fact that Mueller was very busily occupied with other matters of equal importance in his extensive labor law practice, and that it was difficult for Respondents' personnel director, who served as a regular member of the bargaining committee, to spend the required time away from his other duties. However, we cannot regard the situation here as merely an inadvertent result of a negotiator's busy schedule. Such a conclusion would require that the entire course of conduct pursued by Respondents' negotiator in making arrangements for each successive meeting, including his oft-repeated delaying tactics, be ignored. On the contrary, occurring as it did in the con- text of a history of unfair labor practices committee by Respondents," including those involving the unilateral actions in derogation of the duty to bargain found herein, and following an actively contested election campaign in which the Respondents clearly revealed their op- position to the Union, we find that such conduct inhibited the very process of discussion and clearly manifested the Respondents' nega- tive attitude toward the collective-bargaining obligation. Accord- ingly, we find that under the circumstances herein, the Respondents did not meet and confer with the representative of their employees at reasonable times and intervals. In view of the above, we find that the Respondents failed to comply with the statutory requirement of good-faith bargaining and thereby, refused to bargain collectively in violation of Section 8 (a) (5) and (1) of the Act. ORDER The Board adopts as its Order the Recommendations of the Trial Examiner, as modified herein.12 11 See N L R B v Reed & Prince Manufacturing Company, 205 F 2d 131, 139-140, (C.A. 1), cert denied 346 U S 887 12 In accord with Board policy, we hereby modify the remedy with respect to the Christ- mas bonus to include payment of interest at the rate of 6 percent per annum as set forth in Isis Plumbing if Heating Co., 138 NLRB 716 For reasons stated in his dissenting opinion in that case. Member Leedom does not join in this modification The notice appended to the Intermediate Report is further amended by deleting the phrase "This notice must remain posted for 60 days from the date hereof," and substitut- ing therefor the phrase "This notice must remain posted for 60 consecutive days from the date of posting " INTERMEDIATE REPORT STATEMENT OF THE CASE On December 5, 1961, International Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Subordinate Lodge No. 96, herein called the Union, filed a charge in Case No. 16-CA-1579, alleging that, on 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD November 30 and December 2, 1961, Respondent Exchange Parts Company dis- charged, respectively, employees James Polk, because of his union membership and activities, and Elbert Lee Bowman, because of his testimony in a prior case and because of his union activity, in violation of Section 8(a)(1) and (3) of the Act On January 3, 1962, in Case No. 16-CA-1590, the Union filed a charge against Respondent Companies alleging that on July 3, 1961, Respondents refused to bargain with the Union and that since that date Respondents unilaterally withheld a Christ- mas bonus from the employees, all in violation of Section 8(a)(1) and (5) of the Act. An amended charge in the last-mentioned case was filed on January 24, 1962, repeating the above allegations and adding an allegation that on December 25, 1961, Respondents refused to pay the Christmas bonus in violation of Section 8(a)(3) of the Act A consolidated complaint issued on February 7, 1962, alleging that the discharge of employees Polk and Bowman on November 30. 1961, and December 2, 1961, respectively, was violative of Section 8 (a) (1) and (3) of the Act and that Bowman's discharge was in violation of Section 8(a) (1) and (4) of the Act. The complaint also alleges violations of Section 8(a)(1) and (5) of the Act, commencing July 10. 1961, "in that" since on or about June 28 1 and July 28, 1961, Respondents have laid off employees without notice to or consultation with the Union; that since July 10, 1961, Respondents have refused to meet and negotiate at reasonable times; that since December 15, 1961. Respondents have refused to furnish the Union with a list of employer's designated classifications, and that since December 25, 1961, Respondents in order to undermine the Union and destroy its majority have refused to pay employees Christmas bonuses. Respondents in their answer deny the commission of the alleged unfair labor practices A hearing was held at Fort Worth Texas. on April 10 through 14, 1962, before Trial Examiner Ramey Donovan All parties were represented at the hearing and participated therein. On May 22, 1962, the General Counsel filed a brief that has been carefuly considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. COMMERCE FACTS Respondent Exchange is a Texas corporation with its principal office and place of business in Fort Worth, Texas, where it is engaged in the manufacture, sale, and distribution of rebuilt automotive parts and related products. In the course and con- duct of its business operations during the past 12-month period, Exchange has pur- chased parts and equipment, consisting principally of automotive parts, valued in excess of $50,000, of which more than $50,000 worth were shipped directly to its plant from outside Texas and more than $50,000 worth were shipped directly from its plant to points outside Texas. Respondent Rebuilders is a Texas corporation with its principal office in Fort Worth, Texas. Its plant is in Fort Worth and therein it engages in the manufacture, sale, and distribution of rebuilt automotive parts and related products. Rebuilders is a wholly owned subsidiary of Respondent Exchange and during the past 12-month period it has purchased parts and equipment, principally generators, valued in excess of $50,000, of which more than $50,000 worth were shipped directly to its plant from points outside Texas Respondent Southwest is a Texas corporation with its principal office in Fort Worth. Texas Its plant is also in the last-mentioned city and therein it engages in the relining of automobile brake shoes. Southwest is a wholly owned subsidiary of Respondent Exchange and in the past 12-month period it purchased parts and equip- ment valued in excess of $50,000, of which more than $50,000 worth were shipped directly to its plant from points outside Texas. Respondents Exchange. Rebuilders. and Southwest are affiliated businesses with common officers, ownership, directors, and operators The three corporations have a common labor policy. Respondents are employers engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union aforenamed is a labor organization within the meaning of the Act. I This date was orally amended to rend July 12, 1961. EXCHANGE PARTS COMPANY III. THE ALLEGED UNFAIR LABOR PRACTICES 717 A. Background The Union began its organizational efforts among Respondents' employees in November 1959. The Union lost a representation election in March 1960 2 Pur- suant to charges, a complaint was issued against Respondent Exchange. The hear- ing was held on September 9, 1960, before Trial Examiner Hilton. On May 26, 1961, subscquent to the Trial Examiner's report of February 2, 1961, the Board issued its Decision finding that Respondent had violated Section 8(a) (1) of the Act 3 That case is awaiting decision by the Court of Appeals, Fifth Circuit. On June 23, 1961, the Union won an election among Respondent's production and maintenance employees and was certified July 3, 1961.4 Pursuant to charges, filed between January 28 and June 28, 1961, a complaint was issued against Respondents and a hearing was held on June 27 and 28 and July 31 through August 4, 1961, before Trial Examiner Wilson. In March 1962, subsequent to the Trial Examiner's report of November 8, 1961, the Board issued its Decision finding that Respondents had violated Section 8(a)(1) and (3) of the Act.5 According to counsel for Respond- ents, that case also will be litigated in the court of appeals B. The discharges 1. James Polk Polk had commenced work for Respondents in August 1960 in the generator de- partment teardown section 6He was laid off on October 29, 1960, for economic reasons but was recalled in December 1960 in the starter teardown department. In June 1961 Polk was temporarily transferred to the shipping department where he worked until July 1961, at which time he was returned to starter teardown. On August 2, 1961, Polk was laid off for economic reasons in accordance with the fact that he had the least seniority in his department. No new employees were hired in the department subsequent to Polk's layoff. In the latter part of October and early November 1961, Scott, the International representative of the Union, spoke to Meador, secretary-treasurer and personnel director of the corporation, on several occasions about putting Polk back to work. Meador said that there were no job openings in Polk's department. Scott asked Meador to try to find a job for Polk in some other department and Meador said he would see what could be done. Meador thereafter spoke to Lucher, the plant super- intendent, about finding an opening for Polk. During the same period Meador testified that Polk had come to the plant and had told him something about needing money and that he had paid dues to the Union Meador said that Polk indicated that he was interested in getting his money back from the Union. Polk testified that he could recall no such conversation. In any event, a day or two later, when Scott met with Meador and Attorney Karl Mueller at a contract bargaining session, there were some preliminary casual remarks. The testimony indicates that the session was probably either the November 1 or 2 con- tract bargaining meeting.? It was prior to the recall of Polk on November 14, 1961. Meador testified that he said to Scott in a joking manner that he had been talking to Polk and that Polk had said he wanted a refund of his dues. Karl Mueller testified in corroboration of Meador on this point and stated that Scott replied quite 2 The hearing on the Union's petition for certification was held December 29, 1959. The Decision and Direction of Election issued February 19, 1960. A hearing on the Union's objections to conduct allegedly affecting the election was held September 9, 1960, and the hearing officer's report issued February 2, 1961. 131 NLRB 806 4 The certified unit, which, together with the Union's majority status, Is not in issue in the instant case (and which I find is an appropriate unit In which the Union repre- sents a majority), is all production and maintenance employees, including truckdrivers, warehousemen, shipping and receiving employees, leadmen, and leadwomen, employed at the Respondent Exchange, Respondent Rebuilders, and Respondent Southwest plants In Forth Worth, Texas, exclusive of office clerical employees, watchmen, guards, and all supervisors as defined in the Act. 5 Southwest Shoe Exchange Company, 136 NLRB 247. As the name implies, the teardown section involves the dismantling of the particular old part preparatory to its reassembly with ienranufaetured parts by another department. P The prior bargaining meeting was October 13 and the subsequent meeting was Deeem- ber 14, 1961 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seriously that the Union would refund dues to Polk or anyone else who did not wish to pay dues. Scott's testimony is substantially the same as the foregoing except that he neither characterized Meador's remarks as having been made in a bantering vein or otherwise . Apparently Scott took the remark at face value because he asked Polk about the matter a day or two later. Polk denied having said anything of the Sort. Later, one of Respondent's janitors having left, Lucher told Meador that he would be willing to give Polk an opportunity at the janitor job.8 Meador related this intelligence to Karl Mueller and the latter advised Meador to relay the information to Scott who had shown such interest in doing something for Polk . Meador fol- lowed this suggestion and Scott told Polk to go to the plant for a job. Lucher testified that he knew Polk and was acquainted with his work and capa- bilities when he had worked in the generator teardown operation . With some specificity, not here detailed, the substance of Lucher's estimation of Polk's prior performance as an employee was that Polk had definite limitations insofar as memory and mental concentration was involved. While the particular work required a minimal amount of such faculties, Polk's shortcomings were apparent but evidently had been tolerable in view of the repetitive nature of the tasks and the presence of immediate supervision. It was Lucher's testimony that he was willing to give Polk a chance at the janitor job because he felt that the latter job was decidedly simple in its demands and because Meador had asked him to find something for Polk since Scott had spoken to Meador several times about Polk. Since the Company had only four janitors there was no immediate supervisor for the group. Lucher had the janitors under his own general supervision as plant superintendent. When Polk reported to Lucher on November 14, the latter told him his hours were 12:30 to 9:30 p in. He informed Polk that his duties were to empty the trash barrels, to clean trash off the lunchroom tables, to turn on outside floodlights, to ascertain that certain doors were locked, to empty baskets in the office, to dust the desks, and to punch a fire watchman's clock at various stations at hourly intervals For the first 3 days Lucher accompanied Polk on his rounds. He showed him the location of the trash barrels, the light switches, the doors, punched the clock at the various stations, and then had Polk do the same thing According to Lucher, Polk performed his janitor duties in a very unsatisfactory manner in the 2 weeks prior to his layoff on November 30. 1961 The plant became untidy because trash was not being carried out when it should have been Luckier stated that he had observed Polk pick up a single cardboard box and carry it to the disposal at the other end of the plant, about a block and a half away, and then return for another box. What should have been done was that Polk should have used a two-wheel cart to pick up the entire barrel of trash and carry the barrel to the disposal Luckier said that he had spoken to Polk about this on several occasions and had told him what to do but that improvement had not been shown At another time Luther observed Polk take a dirty, greasy rag from the plant to wipe the lunchroom tables instead of using a clean cloth Lucher told him to use clean cloths for the task Luther stated that at no time did Polk turn on all the floodlights as he was supposed to and that he would either miss punching in at one time station or punch the clocks in the wrong order One night when Luckier returned to the plant he found Polk standing in the office section, in the dark, swinging a rag. When asked what he was doing, Polk said he was dusting. Lucher told him to turn the lights on and do it right According to Luckier, he spoke to Polk at least once a day about his work. Polk, as described by Lucher, required constant supervision and had to be told every move that he was to make. After 2 weeks of unsatisfactory performance by Polk, Luther told Meador that he could no longer use Polk as a janitor On November 30, when Lucher removed Polk's timecard he told him that his work had not been good enough and that Lucher had to spend too much time following him around checking on his work and doing things Polk should have done Lucher and Meador testified that Polk then reverted to his prior laid-off status as a laid-off employee in the starter teardown department Scott testified that prior to Polk's layoff as a ianitor Karl Mueller telephoned him to say that he had been informed that the Company was unhappy about Polk's work and that Polk could not even turn on the lights he was supposed to The next day Scott told Polk that the Company was dissatisfied with his work and that he should try to do everything he was supposed to do Later that day Polk returned to Scott and said that Luckier had discharged him. When Scott asked him why, 8 The janitor pay was Al 15 per hour, the same rate as Polk had received In his prior Job at Respondents' plant EXCHANGE PARTS COMPANY 719 Polk said, according to Scott, that Lucher said his work was not any good and that he had failed to turn on a floodlight. Scott's testimony as to what Polk told him on this occasion makes no reference to any remark about the Union by Lucher when he laid off Polk. Polk testified that Lucher had never previously criticized his work as a janitor. On November 30, according to Polk, Lucher said he could not use him, that Polk had missed turning on a floodlight and that "I [Polk] weighted myself down with those union buttons and thought the union bought my job back, but it didn't." Lucher denied having made any such remark. In the course of examining Polk as a witness, the General Counsel initially stated to Polk that he was going to question him about his union activities in the period between December 1960 and August 1961. Polk said his only activity was to sign a union card in July 1961. He was then asked whether "during this period of employment you wore anything identifying you as either for or against the Union A. I wore a union button." The question was then in substance repeated and the witness said, "No; no, Sir." At another point, Polk testified that at a union meet- ing, after his August 1961 layoff and before his recall as a janitor in November 1961, he secured two union buttons.9 He wore both buttons, one on each side of his shirt, on the second day of his employment as janitor and thereafter until his termination. Meador and Lucher were admittedly aware that Polk wore two union buttons when he was working as a janitor Lucher states however, that during his prior employ- ment Polk had also worn a union button like many of the other employees. In view of Polk's testimony, quoted above, when he said at one point that he wore a union button, in the singular, as distinguished from his later reference to two buttons that he had secured after August 1961, and then his apparent change in testimony, there is some doubt in my mind as to what the true state of facts is as to Polk's wear- ing a button prior to August 1961 The General Counsel apparently believes that the record establishes and he argues the theory that Respondents were unaware of Polk's union affiliation and therefore gave him the janitor job but, "once finding out about the sympathies" of Polk, Respondents then terminated him Assuming, arguendo, that Respondents were un- aware that Polk was a union member because he had not worn -a union button prior to his reemployment in November 1961, the record is clear that Respondents gave Polk the job after repeated requests by Scott, the union representative Scott's efforts on behalf of Polk would certainly convey the impression to Respondents that Polk was either one of Scott's constituents or that, if he was not, he would be after Scott secured him the janitor job. Respondent did not offer the job directly to Polk in the first instance but conveyed the offer to Scott, allowing him to take credit in performing a service for Polk. Nor does the incident about Polk allegedly wanting his union dues returned alter the conclusion. Respondents did not create a job for Polk as soon as he said he wanted his dues returned. The vacancy arose because a janitor had quit.lo Viewing the evidence as a whole, I conclude that Lucher testified credibly, in the main, regarding Polk's deficiencies as a janitor. It was a job where the employee was more on his own than was the case in his prior jobs and he apparently was not capable of performing satisfactorily under such circumstances. I observed Polk as a witness and I can believe that he had some limitations of the nature attributed to him I do not believe that Lucher discharged him for wearing union buttons or for union activity and I do not credit Polk's testimony as to what Lucher said regarding the buttons ii In this connection, Scott's testimony as to what Polk told him concern- ing why Lucher laid him off does not corroborate Polk. Certainly if Lucher had n Plastic union buttons about an inch and a quarter in diameter. The entire dues incident is less than clear Polk denied that he ever said anything of that nature. Moreover, the remarks were made prior to the time Scott secured the janitor job for Polk. If Respondent found a job for Polk only when lie indicated that he wanted the Union to refund his dues (as the General Counsel contends), it was pre- sumably because they wanted a nonunion employee However, by allowing Scott to take credit with Polk for securing this job, any nonunion inclinations on Polk's part would be effectively reversed u Even if Lucher had told Polk that he had weighed himself down with union buttons and thought that the Union had bought (or insured) his job, it was, according to Polk, in the context of Lacher telling him of his discharge for not turning on a light. In short, a reasonable construction is that Lucher told him he was being discharged for inefficiency and that the fact that he was wearing a lot of union buttons would not help nor would his belief that the Union, by securing him the job, had thereby acquired a vested interest in his remaining in the job 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD referred to the Union and to union buttons in laying off Polk, Polk would have so informed Scott when the latter asked him about the reason for Lucher's action. Dismissal of the allegation regarding Polk is recommended since I find no violation of Section 8(a) (1) and (3) of the Act. 2. Elbert Lee Bowman Bowman had been employed by Respondents in the water pump teardown depart- ment for approximately 31/2 or 4 years . On June 14, 1961, he received a written disciplinary warning slip from the Company. The incident involved was one where Bowman, while working, made a remark about two supervisors who were standing near his work station. Bowman made his comment audibly on that occasion and with the intention that his words be heard by the supervisors . The remark was to the effect that everytime he looked around he saw a supervisor (Bowman used the term "white shirt," i.e., supervisor ) and they made him nervous and "I can't hardly do my work for [because of] white shirts and these greasy tail water pumps and a man expect for you to try to rip and run and make you some money." The warning slip, signed by Lucher and one of the supervisors involved, stated: On this date at about 10 a.m. you made certain remarks toward and in the presence of Victor Taylor and Cleophus Williams [supervisors ] which were un- called for and disrespectful ; these remarks were made in an insulting and deroga- tory tone and tended to reflect discredit on supervisory personnel in the presence of other employees. This is to advise you in writing that this sort of conduct will not be per- mitted by you or any other employee and the next time an occurrence of this nature happens you will be discharged immediately. The issuance of the above warning slip was one of the counts enumerated in the complaint in 136 NLRB 247, supra . The Trial Examiner in that case, Thomas S. Wilson, whose finding in this respect was affirmed by the Board, found that "At the very most" the slip may have indicated that Respondent "may have been a nasty, mean, or overly strict employer, but this record indicates no connection be- tween the issuance of [Bowman's warning slip ] and any union activity." The com- plaint allegation in respect to the Bowman warning was dismissed. The General Counsel in the preceding case presented the evidence with respect to the Bowman warning slip through Bowman 's testimony regarding the incident. A reading of Bowman's testimony in that proceeding indicates that it was factual and unexceptional . In short, Bowman described the incident as it occurred and did no more than that. Between the June 1961 warning and the date of his discharge on December 2, 1961, Bowman received no other warning slip although the record and the findings in the preceding case establish that the issuance of warning slips was a fixed policy of Respondents whenever it was deemed appropriate. Buchanan, Bowman's immediate supervisor in the period approximately from the latter part of June to December 1961, testified that Bowman was a good worker when he wanted to be but that from time to time he would "goof off" and not pro- duce as well as he should have. When Buchanan had mentioned some of these "goofing off" incidents to Lucher he was told that it was up to him as foreman to "straighten him up" or take other measures. As noted, none of these occasions was deemed serious enough to merit a warning slip and it appears that the whole department , and not particularly Bowman, had been spoken to by supervision about its production. About 3 days before his discharge , according to Buchanan , Bowman had a brief conversation with him to the effect that he was going to leave early . Either in the same conversation or on the same day, Bowman made the audible statement in Buchanan's presence that "I'm up to here with this company [with a gesture of his hand to his neck indicating that he was filled up] and I don't think anybody wants to come back here and mess with me today." Buchanan did nothing about this incident and did not report it to Lucher . Since the latter was the individual who discharged Bowman the incident was not a factor in the discharge . However, the incident is considered in appraising the character and disposition of Bowman and in resolving the conflict between his testimony and that of Lucher as to what was said and done on December 2, 1961, considered hereinafter. Lucher testified that in the June-December period he had occasionally noticed Bowman "goofing off" and killing time but he admitted that at the time "we were having trouble with the entire department ." During this period, according to Lucher, Buchanan reported to him several times that he had overheard Bowman speaking disparagingly about a "white shirt" [supervisor], apparently Buchanan, but EXCHANGE PARTS COMPANY 721 Lucher advised Buchanan that since the remarks were not addressed directly to him there was nothing to be done about the matter. The testimony in this area was rather indefinite and not too convincing. There was no explanation offered as to the distinction between such incidents and the June 14 affair when a warning slip was issued. Possibly the later remarks were not said for the benefit of the supervi- sor and directly before him as was the case on June 14 but even this is more a distinction than a difference or a difference in degree only. In any event, no warn- ang slip was issued regarding Bowman's conduct subsequent to June 14. The events on Saturday, December 2, 1961, when Bowman was discharged, are as follows, according to Bowman: Although normally Saturday was a half day of work the department was scheduled to work a full day on December 2. That morning, at work, Bowman told Buchanan that he wanted to take off that afternoon because he had a matter involving the Internal Revenue Service and he also had some shopping to do. Buchanan said that they would have to talk to Lucher Buchanan and Bowman then went to Lucher's office around 10 a.m. Bowman informed Luther that he had to be off from work that day in order to secure receipts and other papers for Internal Revenue; he was supposed to present such documentation to Internal Revenue on the following Tuesday in regards to his tax return; he would secure the receipts and so forth on Saturday afternoon and then would not have to be absent the whole day on Tuesday; in short, he would be off a half day on Saturday and a half day Tuesday instead of the whole day on Tuesday. Lucher said that he could not give Bowman the time off as requested because the other employees would want time off too and the Company needed the work.12 As Bowman was leaving the office Lucher said he could be off if he brought in the letter in which the Internal Revenue Service had directed him to appear on Tues- day. Bowman said he would bring in the letter, which was at home. The witness testified that he interpreted Lucher's reference to time off, contingent on production of the letter, to mean that Bowman could have Tuesday off if he brought in the letter. Bowman reasoned thus because on Saturday he was already at work and did not have the letter with him. He returned to his work after the above conversation. Buchanan, after they left Lucher's office, told him to bring the letter and he would have permission to be off on Tuesday. Later, that morning, Buchanan told Bow- man that he was laid off. When asked, why, Buchanan replied that Bowman "should have knowed that you couldn't talk to them people like that" and that there were a lot of "chicken" people "around here," "I wished I could be. I guess old J. W. will be next." 13 It is pertinent to note, before continuing with Bowman's version of the Decem- ber 2 events, that when he had completed his description of the conversation in Lucher's office, he was asked whether he recalled anything else being said during the conversation with Lucher. He replied, no, and was then asked: Q. Do you recall anything being said about getting smart? A Yes. Q Tell us what was said. . A. I remember he [Lucher] told me not to be getting smart with him but I can't remember the exact words that I said at the time... . In view of the above admission, limited though it be, that in the course of the conversation with Lucher the latter told Bowman not to be getting smart with him and also in view of Bowman's testimony that Buchanan, when he later advised him of his termination, said that Bowman should have known that he could not talk to those people (Luther) like he had, it is reasonably apparent that the conversation between Bowman and Lucher was not quite as smooth as Bowman's principal testimony would indicate 14 12 At another and later point in his testimony Bowman testified that he also told Lucher he wanted time off to do some shopping 11 It appears that "J W " was another employee in the department The record dis- closes nothing regarding J W with respect to the Union or anything except some testi- monv of Buchanan that J \V was an employee whose work or conduct had been below par but who had subsequently improved after being spoken to by Buchanan 11 Buchanan also testified that when lie advised Bowman of his discharge he told him that lie should not have talked to Lucher the way he had I find that, as Bowman testi- fied on direct examination and as Buchanan testified , the latter , on December 2, in inform- ing Bowman of his discharge , said in effect that Bowman should not have talked to Lucher the way he had or that Bowman should have known that he could not talk to Locher the way he had 722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bowman testified that after Buchanan told him he was laid off he and Buchanan walked up the hall, apparently toward the office. They met Lucher in the hall and Bowman asked him why he had not come back to get Bowman. Lucher asked, "Get you for what')" Bowman replied that Buchanan had come back and informed him that he was "laid off." Lucher said he knew nothing about a layoff. The following Monday, December 4, Bowman came to the plant and spoke to Meador Meador said he did not know too much about Bowman's case but would look into it. In the course of the conversation Meador told Bowman to bring in the letter from Internal Revenue that Bowman had received. Bowman went home, returned with the letter that morning, and gave it to Meador. Later, that afternoon, Meador told Bowman that he had checked into the matter and that he had ascertained that Bowman had been discharged and as far as he knew this was still the cave. According to Bowman, Meador said, "Well, Elbert, you know you was warned in June that if anything happened again, something like that, that you would be fired." The above remark of Meador indicates that he was in effect telling Bowman that he was discharged for the same type of conduct about which he had been given a warning slip in June, namely, insubordination and disrespect. As far as it appears, Bowman made no rejoinder nor did he deny to Meador that there was anything of that nature involved in his December 2 conversation with Lucher. His principal testimony at the hearing, however, as we have seen, conveyed a description of the December 2 conversation as one involving no element of insubordination or dis- respect, although he later admitted, without being able to remember the details, that in the course of the conversation Lucher had warned him not to get smart with him Bowman had also testified that Buchanan, in telling him of his termination, had said that Bowman should have known that he could not talk to Lucher the way he did. Lucher, substantially corroborated by Buchanan who was present, testified that on December 2 Bowman and Buchanan came to his office in the morning. Bowman said he wanted to take the afternoon off. Lucher asked the reason and Bowman said, "Personal business " Lucher asked the nature of the personal business. Bow- man queried, "Do you mean I have to tell you my personal business?" 15 Lucher said, "Yes," if Bowman expected permission to be off. Bowman remarked that it was a "damn shame" that a man had to tell his personal business and that as far as he was concerned going fishing was personal business. Lucher repeated that he would have to know the nature of the personal business for which Bowman wished to be absent. Bowman said he had to do some shopping. Lucher said that he could not excuse him for such a reason because others would be wanting to take off likewise. The necessity of the shopping was discussed, with Bowman explaining that his sister was leaving town at 5 p.m. and he had to buy some things that she was going to take with her. Lucher told Bowman it would be cheaper to work that afternoon and then mail the shopping items. Bowman then said that if he could not be off that afternoon he would have to be off all day on Tuesday. He said he had a letter from the Internal Revenue requiring his presence. Lucher said that if Bowman had such a letter he should bring it in and show it to Lucher and then arrangements could be made for Bowman to be absent. At this point , Bowman, who was standing directly in front of the desk where Lucher was seated, thrust his hand into his pocket as if to grab something and came around the side of the desk to within 2 or 3 feet of Lucher and said, "Are you calling me a liar?" and also said , "Now you look here, I's man, I's all man." Lucher said he was not calling him a liar -but there were rules that applied to Bowman as well as to everyone else Lucher also said, "I don't give a damn what kind of a man you are, what I said still goes." Bowman then said that he, Bowman, was "wasting [his] time in here talking to you" and left the office. After Bowman left, Lucher remained seated and thought about the matter for a few minutes. He then went to talk to Meador and the latter told him to do what- ever he saw fit. Lucher said that thereafter he gave more thought to the incident and in about an hour he called in Buchanan and told him he was going to discharge Bowman. Buchanan said that he would so inform Bowman. Lucher testified that he made the decision to discharge Bowman solely because of insubordination on the above occasion. On rebuttal, Bowman denied walking around by the desk, with his hands in his pocket, and speaking in a threatening manner. He said that he did use the term "man" but only in saying that he was a man and different from most people Bow- man, also, in rebuttal, denied that Buchanan, when he discharged him, said that 15 Buchanan testified that in Lucher's office Bowman told Lucher his reasons for want- ing time off but at one juncture in the conversation Bowman had said, "Do I have to tell you my personal business ?" and Lucher said, "No, I don't want to know all of it, I just want to know why you want off " EXCHANGE PARTS COMPANY 723 Bowman should have known better than to talk to Lucher the way he had. On direct examination by the General Counsel, as previously set forth hereinabove, Bowman had testified that Buchanan did tell him at the time of his discharge that he should have known that he could not talk the way he did to Lucher. Buchanan testified to the same effect. An incident that occurred in the fall of 1961, possibly October, was testified to by both Bowman and Lucher. Because of production problems and incentive bonuses Lucher held a meeting with the employees in the department. Lucher advised the employees to speak freely. One employee who wore a union button stood up and asked why the department's bonuses had fallen off or why they could not get a raise whereas other departments were earning a bonus. Another employee pointed to the union button and said that was the reason.is Lucher said that was not so and union membership had nothing to do with the matter. Bowman then asked Lucher why he did not like the Union. Lucher replied that he did not necessarily like or dislike the Union but that he felt that the Union could not help him one way or the other.17 The complaint alleges that Respondents discharged Polk and Bowman for their union membership and activities or concerted activities "and/or because said em- ployee Bowman did give testimony under the Act" and that such conduct violated Section 8(a)(1), (3), and (4) of the Act. At the hearing the General Counsel stated that Bowman's discharge was because of his union membership and activities and because he had testified in the prior case, thus making clear that the General Counsel was alleging that Bowman's discharge was not simply a violation of Section 8(a)(1) and (4) of the Act. It is of course axiomatic that a Section 8(a)(3) violation requires proof of union membership or activity or of protected concerted activity, and knowledge thereof on Respondents' part. There is no testimony in the instant record regarding Bow- man's union membership or activity. I have not read the entire transcript of the 6-day hearing in the preceding case in which Bowman testified but I have read Bowman's testimony on direct and on cross-examination therein. There is no statement that Bowman was a union member or had engaged in union activity. Although I am inclined to believe that Bowman was a union member the most tangible evidence of this is simply Bowman's testimony that in the water pump department, in which he worked, everyone wore a union button when Lucher spoke to the department in the fall of 1961. "Everyone" would presumably include Bowman. This, however, is less than distinctive union membership or activity but distinction is of course not a sine qua non in such situations. The General Counsel's theory, as stated in his brief, is that in June 1961 Bowman "evidenced his support of the Union by complaining about the close scrutiny of his work by `white shirts.' He received his first and only warning slip for this act. Bowman testified to these circumstances. [The brief then notes the prior adverse finding of the Trial Examiner in the earlier case.] That Bowman continued his support of the Union is admitted by Plant Superintendent Lucher. Bowman asked Lucher in front of other employees why he (Luckier) hated the Union. Thereafter, the first opportunity Respondent had for retaliating against Bowman for his testi- mony arose. This came when Bowman, for two legitimate reasons [on December 2] asked for time off." Like Trial Examiner Wilson, I have difficulty in seeing the tie-in between Bowman's remarks about the "white shirt" watching him in June 1961 and any union or concerted activity, at least in the absence of evidence of Bowman's union activity against which the alleged watching might have been directed as a form of harassment. In any event, I regard the disposition by the Trial Examiner and the Board of that incident in the prior case as dispositive. I also have difficulty in understanding how Bowman manifested to Lucher his continued "support of the Union" by asking Lucher at an open meeting why Lucher disliked the Union. Lucher had told the men to speak freely. One employee, who is not a discriminatee in the complaint, stated openly that the employees in the depart- ment were not getting a bonus or a raise because of their union membership or because they wore union buttons. This was a direct assertion of illegal discrimina- tion by Respondent, which Lucher simply denied to be the fact. The extent of Bowman's role was to ask Lucher why he disliked the Union. Such a question does not necessarily reveal the sentiments of the questioner. Fence sitters, openminded "Bowman testified that all the employees in the department wore union buttons. 17 This is Lucher's version of his reply. Bowman testified that Lucher's reply was that he "just didn't care for union, he didn't see where it could help him either way." 672010-63-vol. 139-47 724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD people wanting to hear both sides of a proposition, indecisive persons, waverers, might ask such a question. A person opposed to the Union might ask such a question in order to set the stage for some antiunion propaganda. It is also true that a union adherent might ask such a question but, in my opinion, the question above is tenuous evidence that the questioner is thereby manifesting his continued support of the Union. The crux of the General Counsel's case, however, is apparently the proposition that Bowman's discharge was an act of reprisal because Bowman had testified in the prior case. For much the same reasons as discussed above, I regard the Section 8(a) (3) aspect as tenuous. On its face, it is a situation where an employee, Bowman, apparently believed that Respondents improperly and illegally gave him a warning slip. Presumably he complains to the Union and the Union includes his case in its charge. The General Counsel calls Bowman as a witness and he states the facts at the prior hearing. The allegation is dismissed as being unconnected with union membership or activity. Even assuming, arguendo, that the employee is subsequently discharged by the employer because he testified in the prior case, this is not, in my view, necessarily a violation of Section 8(a)(3) of the Act. Inclusion in a union charge and testimony as a Government witness, depending on all the circumstances, is not per se union or concerted activity nor does it establish employer knowledge thereof sufficient to support a Section 8(a)(3) finding A nonunion employee's grievance 18 may be inclined in a union charge and the employee may testify as a Government witness because of his personal interest in his own grievance and is not, without more, thereby engaging in union or concerted activity within the meaning of Section 8(a)(3) of the Act Nor in such circumstances is employer knowledge of union activity established per se. Regarding the Section 8(a)(4) aspect, the General Counsel's theory and Bow- man's testimony is that on December 2 Bowman did nothing more than to discuss with Lucher his request for time off "for two legitimate reasons." There is no con- cession that Bowman may have been in some degree insubordinate or disrespectful to the plant superintendent. In sum, Respondents conjured up the insubordinate aspects in order to retaliate against Bowman for his June testimony. If this be so, Respondents waited S months to do what they could have done at any time after June 1961. A more tenable approach, in my opinion, is the theory that while Bowman may have talked rather strongly and may have displayed an insubordinate attitude toward Lucher this was not the real reason for his discharge 19 My appraisal of Bowman as a witness and the testimony regarding various in- cidents involving the witness and his utterance, both at the time he received the warning slip and thereafter, persuade me that Bowman's personality was such that he was at least somewhat "edgy" and thin skinned with respect to supervisors and his relationship with them. I pass no judgment on Bowman's rights as an individual citizen to express himself as he may wish or on his feelings under certain circum- stances. What I do conclude, based on my observation of the witnesses, is that Lucher's version of the conversation with Bowman on December 2 was substantially accurate although I do not believe that Lucher was under genuine apprehension of physical assault as his testimony would imply. I conclude that Bowman in that con- versation gave Lucher a rougher time than a plant superintendent can reasonably expect from a rank-and-file employee in such circumstances It is my opinion that, without repeating all the evidentiarv facets previously set forth, Lucher did discharge Bowman for insubordination and disrespect in the December 2 conversation and that Bowman was not discharged because he had testified on June 14, 1961. in the prior Board case. Bowman had been warned, in writing, in June, about his attitude and expressions regarding supervisors and, as Buchanan told him on December 2 when notifying him of his discharge, he should have known that he could not talk to Lucher the way he did. When Bowman spoke to Meador a few days after his discharge, the latter said, "Well, Elbert, you know you was warned back in June that if anything happened again, something like that [speaking disrespectfully to- ward supervisors], that you would be fired " Bowman did not testify that on either of the above occasions, when Buchanan spoke to him as described or when Meador spoke to him, that he, Bowman, denied having spoken to Lucher in an unwarranted manner. It is therefore recommended that the Section 8(a)(1), (3), and (4) allegations in the complaint regarding Bowman be dismissed. is I am using the term "grievance" in the broad sense ie It is pertinent to note that in his testimony at the prior hearing Bowman displayed no hostility toward his employer and his testimony was factual and accurate, without distortion or exaggeration of any aspects unfavorable to the employer. If the Respondents were aggrieved by Bowman's role it would be attributable solely to the fact that Bowman had testified and not to the contents or manner of his testimony. EXCHANGE PARTS COMPANY 725 C. Alleged refusal to bargain 1. Layoffs without notice to or consultation with the Union The complaint alleges that on July 12 and 28, 1961, and, at all times since, Respondents have laid off their employees without notice to, or consultation with, the Union. As background, although outside the scope of the unfair labor practice alleged in the complaint, the record shows a layoff on June 28, 1961. This was not a sudden layoff but had been planned by Respondent since early June. Action had been withheld on advice of counsel until after the Board election on June 23. At a recess in or at the close of the prior unfair labor practice hearing on June 28, 1961 (136 NLRB 247), Respondents for the first time advised the Union, i.e., Scott, of the layoff that was effective that day. On July 7 Scott telephoned Mueller's law office and spoke to Harold Mueller in the absence of Karl Mueller, the latter be- ing out of town on business throughout most of July.a° Scott advised Harold that as the union representative he wanted to be advised of any future layoffs and that from some of the employees he had heard that another layoff was impending. Harold Mueller said that as far as he knew no layoffs were planned. Meador testified that two employees were laid off on July 7 while he was on vacation. The Union had not been informed of this fact by the Company and Harold Mueller had apparently been unaware of the fact. By letter of July 10 Scott confirmed the foregoing conversation with Harold Mueller and repeated that he desired that the Company meet and discuss with him any future changes in the conditions of employ- ment of the employees. On July 12 Respondents laid off six employees without advising the Union of such action. Scott thereupon called the Muellers' office on that day and again spoke to Harold, advising him of the layoff. Harold Mueller testified credibly that he knew nothing about the matter and so informed Scott. He said he would ascertain what the facts were. Thereafter, Harold called the Company and asked for Meador, the personnel director. Meador was still on vacation, having been gone since prior to July 4 .21 Harold Mueller telephoned Scott on July 25 and said that he would like to meet with him the following day regarding some additional layoffs. The meeting was held on July 26 with Meador and Harold Mueller being present and with Scott and Trepagnier, an International representative of the Union, representing the Union. The company representatives gave Scott a list containing the names of employees, their departments, and hiring dates, and marked the names of employees to be laid off.22 Scott was informed that the layoff was due to a drop off in business and an excess inventory. Inventory figures were read off and it was pointed out wherein such figures were excessive. The company representatives explained that company seniority was being used except with respect to a small group of leadsetters who worked on a piece-work basis. As to the latter group the Company was retaining the highest producers regardless of seniority. The employees, whose names the Respondents had selected, were laid off on July 26, the afternoon of the day on which the above meeting had taken place. =° As previously indicated, Respondents were represented by Karl and Harold Mueller. Both attorneys were present throughout the instant hearing and both testified as wit- nesses . Karl Mueller conducted all oral examination at the hearing on Respondent's behalf and, as far as observable, Harold Mueller's participation was limited to his testi- mony as a witness and off-the-record consultation with his brother and Respondents. Harold Mueller testified that their law practice is a general practice and labor law. Karl Mueller is the labor law specialist There are no other attorneys in the firm. Karl Mueller was the attorney who dealt with the Union. It was only when Karl Mueller was out of town or not available that Scott dealt with Harold Mueller. The latter did not profess to be fully abreast of all situations involving Respondents and the Union and rarely, if at all, could give definite answers to Scott except on an occasional specific item when Karl Mueller so delegated him. u According to Meador, the Respondents' personnel department was a one-man opera tion. Meador had no professional assistants and his staff was limited to one female clerical employee who performed only routine clerical tasks and allowed other work to accumulate when Meador was absent Meador testified that he learned of the July 12' layoffs upon his return from vacation on July 17 or 18. sa Scott had requested such a list on June 28. The list was composed personally by Meador, apparently after he returned from vacation. The record indicates, as previously mentioned, that Meador left on vacation sometime shortly before July 4. 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Scott testified to some initial lack of understanding on his part as to the seniority principle being used by Respondents in making the various layoffs between June 28 and July 26. However, he admittedly did ascertain that the Company was using company seniority but that it was limiting seniority competition to the partic- ular department in which the layoff was to occur. In other words, for a layoff in the water pump department the employee in that department who had the least company seniority would be laid off first and he had no bumping rights over an employee in another department who might have less company seniority. I believe that the Respondent did, on a number of occasions between June 28 and July 26, inform Scott that the layoffs were based on company seniority but that such expres- sions as, company seniority within the department, apparently was somewhat con- fused with department seniority, i.e., length of service within the particular depart- ment. In any event, as indicated, I believe that Respondent did advise Scott of the basis and the method of layoffs and any misunderstanding was not deliberately caused or feigned by either party. On the evidence described above, I find, as alleged in the complaint, that in laying off employees on July 12, 1961, without notice to or consultation with the Union, the statutory bargaining representative, Respondents have violated Section 8(a)(1) and (5) of the Act. I also find that, on July 26, 1961, Respondents, although they did advise the Union on that date of the layoff and did give the Union substantial and pertinent information relating to the layoffs, did not do so in timely fashion. The layoffs of approximately 23 employees were scheduled for and were made on the very afternoon of July 26 when the company representatives met with Scott. The need for these layoffs had not arisen suddenly, on a few hours' notice, insofar as the Respondents were concerned. As Harold Mueller testified, Respondents explained to the Union on July 26 that the layoffs were at- tributable to inventory accumulations. It is a fair conclusion that inventory of units such as generators (this was apparently the area of the excess in inventory) does not accumulate to a critical point in 1 or 2 days. Employer personnel in charge of such matters may reasonably be expected to be aware of the inventory buildup over a period of time. There is no evidence that Respondents first became aware of the inventory situation and the need for a layoff on July 25. The timing of the consultation with the Union, whether so intended or not, was less than consultation, negotiation, or collective bargaining and was in effect little more than apprising the Union of the details of a fait accompli and afforded little or no opportunity for meaningful and constructive bargaining or exchange of ideas among the parties. In my opinion, therefore, the requirements of the Act were not satisfied and I find that the July 26 layoff was made under circumstances that did not meet the standards of Section 8(a)(1) and (5) of the Act and a violation of these sections is found accordingly. 2. Refusal to meet and negotiate at reasonable times Because of the unfair labor practice hearing in Case No. 136 NLRB 247, the parties agreed to defer contract negotiations to August 1961. Thereafter, the chronological history of the meetings between the parties was as follows: 23 Date Time sched- uled to start Time actual- ly started Recess for lunch Scheduled to reconvene Reconvened Time meeting ended 8/11/61------------ 10 00 a.m---- 10.45 a.m---- -------------- -------------- -------------- 4 00 p.m. 8/31/61------------ 10 00 a.m---- 2 30 p.m----- -------------- -------------- -------------- 5 15 P.M. 9/1/61_____________ 10 00 a.m____ 10*30 a m____ 12 noon_____ 200 p.m ----- 2 50 P.M ----- 5 35 p.m. 9/18/61____________ 10 00 a m____ 11.15 a m---- 100 p.m ----- 2 00 p.m ----- 2 45 p.m ----- 4 30 p.m. 9/19/61____________ 1000a.m____ 1030a.m---- 1220pin ---- 200p.m----- 2.20pin ----- 520p.m. 10/12/61___________ 10.00 a.m ____ 10 55 a m____ 12 .12 p.m ---- 2 00 p m_____ 1 55 p.m ----- 6 15 p.m. 10/13/61 ----------- 10.00 a.m____ 10 47 a.m---- 12 14 p m____ 2 00 p m_____ 1 45 p m_____ 6 22 p.m. 11/1/61_ ------------ 10 00 10.19 a.m---- 12.53 p.m ---- 2 00 p.m_-___ 3 05 p m_____ 5 30 p m. 11/2/61_ ------------ 10 00 a.m---- 10 42 a m____ 12 15 P.m ---- 2 00 p In ----- 2 46 p m_____ 5 40 p.m. 12/14/61__ _________ 10 00 a.m---- 10 30 a.m---- 12 05 p.m ---- 2 00 p m_____ 2,35 p m_____ 5 40 p m 12/15/61_ __________ 10 00 a m____ 11 27 a m---- 12 07 p m____ 2 00 p m_____ 2 35 p.m ----- 5 40 p m. 2/13/61 ------------ 1000am---- 1040a.m____ 1250pm____ 230pm_____ 255pm----- 455pm 2/14/61 ------------ 10 00 a.m__-_ 10 30 a.m-___ 1215 p.m .... 2 00 p m----- 2 18 p m_____ 5:40 p m. 3/3/61_____________ 10 00 a m____ 10 33 a m-___ None________ None -------- None -------- 3 45 p m. 23 With the exception of the first meeting which was held in a hotel all other meetings were held in the law offices of Respondents' attorneys, Karl and Harold Mueller. EXCHANGE PARTS COMPANY 727 The foregoing compilation is based upon the testimony of Scott who impressed me as a credible witness. Scott was present at all meetings and his own recollection as to the meetings was aided by notes kept at his direction and under his supervision by a member of the union negotiating team. The above-depicted facts regarding the meetings are not disputed by Respondents except to the extent that Karl Mueller, in a very minor respect, added the following qualification. He testified that although he had not kept any time records he recalled that on February 13 the union repre- sentatives were 20 minutes late and that on some other unspecified occasions the union people had been late. Scott testified that he could recall only one occasion when the union representatives had been late and then only 5 minutes. Although both the Muellers Sand Scott impressed me as basically reliable witnesses, I believe that Scott had given more attention to the details of promptness and tardiness on the part of the parties at the various meetings. I conclude that Scott's timetable of the meetings as set forth above is accurate although I believe that there probably may have been one or two occasions when the Union was also late. However, I am persuaded that the basic and predominating pattern was one of tardiness on Respond- ents' part and that the Union's tardiness was relatively minimal and minor. Scott testified credibly and without contravention that at the end of each bargain- ing meeting he would ask Karl Mueller to fix a date for the next meeting. On every occasion Mueller said that until he consulted his schedule he would not be able to commit himself to any particular date but that he would call Scott in 2 or 3 days or next Thursday or some other named day. Neither Karl nor Harold Mueller ever called Scott subsequently, pursuant to the above type of statement, to arrange a contract bargaining session.24 When the indicated day arrived when Mueller had told Scott that he would call to arrange a meeting, Scott would hear nothing. Scott would then commence calling the Muellers' office to speak to Karl Mueller. It was common that Scott would have to call a half dozen times before he ultimately made the contact. Karl Mueller would be absent or unavailable and Scott's conversations would be with the office secretary. While Harold Mueller was more available than Karl, it was the latter who was conducting the negotiations and who scheduled the meetings. There is no dispute about the fact that arrangements, decisions, and negotiations on behalf of Respondents were vested in and were exercised solely by Karl Mueller. This is doubly clear since Harold Mueller testified that at no time did he undertake to participate in contract negotiations involving the Respondents and the Union, and Karl Mueller testified that it was his experience that negotiations were best handled by one man who, in the case of the Muellers in the instant matter, was Karl Mueller. The last contract negotiation meeting was held by the parties on March 3, 1962. One of the matters referred to at this meeting was the question of transfers. Mueller suggested that Scott draw up a provision regarding this subject. As far as it appears this has not been done or at least it has not been given to the Company. At the close of the meeting, as at the prior sessions, Karl Mueller told Scott that he would let him know when he could meet again or that he would let him know on the following Thursday, March 8. At the hearing Scott testified that he had not yet been contacted by Mueller on this matter. Scott testified that he also had met, on March 13, 1962, with Karl Mueller who was representing the Hotel Texas while Scott was representing the Union in contract negotiations between the hotel and the Union. Scott, at the conclusion of the meeting, asked Mueller to set a date for another meeting in the instant matter (Respondents' contract negotiations) but Mueller replied that he did not have an open date and would have to let Scott know subsequently. At the time of the instant hearing Scott testified that he had not yet heard from Mueller 25 Throughout the above period, August 1961 through March 1962, the evidence convinces me that the average of about two meetings a month was primarily due to the unavailability for more frequent meetings of Respondents' bargaining repre- sentative, Karl Mueller. Scott's assiduous efforts to arrange meetings, as well as his credited testimony that he had said to Mueller that he and his committee could meet any time and that meetings should be held more frequently is persuasive evi- dence that the Union was not the cause of the infrequency of the bargaining sessions. 2A Harold Mueller called Scott once, on July 25, 1961, to arrange a meeting regarding some layoffs, supra. 25 On March 13 and 14, 1962, a company expert and a union expert on the subject of wage incentives conferred together regarding a wage incentive program being introduced at Respondents' plants. This meeting had previously been arranged by Respondents and the Union 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nor is the foregoing conclusion altered by Karl Mueller 's testimony regarding Johnson, a business agent of the Union in Oklahoma City who was sitting in on the first three sessions of negotiations in Fort Worth in place of an International vice president of the Union. According to Mueller, Johnson asked him, at the initial session on August 11, if in future sessions they could meet for at least 2 days con- secutively since Johnson was coming from out of town. Costello, an International representative of the Union from St. Louis, who sat in on about six sessions up to November 2, also made the same suggestion to Mueller and for the same reason, viz, time consumed in travel and expense entailed. Mueller testified that he stated that he would endeavor to accede to such requests and thereafter all sessions except the last one were held on a 2-day basis. At the hearing, Mueller stated that on the foregoing occasions he had remarked that "it was going to be more difficult to find 2 days consecutively in [his] crowded calendar than it would be to come together for a day or part of a day" and that the "problem in trying to find two days in a busy schedule . wasn't encountered when a person could meet for a half day and so forth, when everyone involved was accessible or available on short notice " 26 However, as we have seen, Mueller never contacted the Union to arrange a bargaining meeting on the contract for a half-day session, a 1-day session, a 2-day session, or any session. Scott was admittedly the person who took the initiative and who had considerable difficulty in making arrange- ments with Mueller for even the meetings that were held. Scott was at all sessions and was the union representative closest to the negotiations. He urged Mueller to meet more frequently and did not demand that only 2-day sessions were acceptable. In any event, I do not regard a request that contract negotiations be held on at least 2 consecutive days as unreasonable nor as a justification on Respondents' part for meeting only 2 days a month. I do not believe that the representatives of either party in contract negotiations must be "available on short notice" for a few hours or a half day of negotiations when it happens that the other party can spare such brief intervals from his own otherwise occupied schedule. Contract bargaining, most naturally and appropriately, is facilitated by consecutive meetings and 2 days are obviously the minimum requirement for consecutiveness. Unless both parties are agreeable to conducting their bargaining with long intervals between sessions, inter- vals most generally occur because one party needs some reasonable amount of time to prepare some unanticipated data or to revise a wage, seniority, or other proposal. Both parties, I believe, do or should enter into contract bargaining with the under- standing that the respective representatives are committing their time, which might otherwise be occupied, to the business at hand, to wit, bargaining out a contract as expeditiously as is possible with due regard for intramural reflection and consultation. AS we have seen, Respondents had retained the law firm of Mueller and Mueller. Insofar as labor law and the matter of dealing with the instant union was concerned, Respondents were represented admittedly by one man, Karl Mueller. Not only did this constitute a one-man situation but the one man was a very busy and quite apparently a highly competent and successful practitioner in the field of labor law. Karl Mueller testified at the hearing for many pages regarding his cases and engage- ments during the period with which we are concerned 27 I do not question this testimony and I have no doubt that Karl Mueller was a very busy attorney. He simply had such an active and far-reaching labor law practice that he did not see his way clear to meeting with Scott and the union committee on contract negotiations more frequently than he did. I am also inclined to believe that when Mueller was late for various sessions it was not because of a predetermined plan to be late but because he received local and long-distance telephone calls from other clients or because he felt obliged to confer with someone on some other business 26 Mueller testified regarding an occasion when Scott asked for more frequent meetings. Mueller states that he told Scott that not only was it difficult for him to arrange his engagements so as to meet for 2 days but that it was "not an inconsiderable problem" for Meador, Respondents' personnel director, to arrange to be abesnt from his office for 2 consecutive days Karl Mueller and Meador were Respondents' bargaining representatives. 2a Without repeating the names of the various clients enumerated by Mr. Mueller, rang- ing from airlines through bus companies to biscuit makers and other manufacturers, his testimony showed day -by-day engagements in various cities of Texas other than Fort Worth where his office was located . He was also engaged in matters in Oklahoma, Louisiana , New Mexico, Missouri, and the District of Columbia . These engagements in- cluded conferences with clients , representation cases, unfair labor practice cases, contempt matters, court of appeals proceedings , briefs in various matters, Federal Mediation and Conciliation conferences , strike situations , and a hearing before the Federal Maritime Board. EXCHANGE PARTS COMPANY 729 Karl Mueller's law practice is quite clearly his own concern and that of his brother, Harold. What is before me in this proceeding is the question whether or not Respondents have bargained with the Union, the statutory bargaining representative, as required and contemplated by Section 8(a)(5) of the Act. In my opinion, Re- spondents have not so bargained by reason of the fact that they have not met and negotiated with the Union at reasonable frequency. The fact that their attorney and representative was a very busy man, with many and diverse engagements, does not alter this conclusion. We are here concerned with public rights and public obligations and it is Respondents here who have the obligation to meet and bargain at reasonable times. If Respondents had been represented by an attorney or other person, who by reason of age or physical disability had been forbidden by his doctor to spend more than 2 hours a week on business affairs, I cannot believe that the fact that the representative had a legitimate reason for spending no more than 2 hours a week in contract negotiations would constitute a defense to Respondents' failure to meet and negotiate at reasonable times and with reasonable frequency. Accord- ingly, for the reasons heretofore set forth, I find a violation of Section 8(a)(1) and (5) of the Act. 3. Refusal to furnish list of employee classifications As described previously herein, Scott, on June 28, 1961, had requested that Respondents furnish the Union with a list of employees, their departments, date of hire, wage rates, and classifications. On July 26, the Respondents furnished the foregoing information to Scott, in writing, with the exception of employee classifi- cations As to the latter, the Respondents' representatives stated that Respondents did not have employee classifications or titles. Within the next few weeks, at the Union's request, Respondents furnished the Union with an additional list containing the same type of information as the first list, but with more up-to-date information. Sometime later in the year, a third supplementary list of the above description was furnished at the request of the Union. Scott testified that from July 26, 1961, when Respondents explained that they had no classifications or job titles, to December 15, he made no requests for classifications 28 At a meeting with Karl Mueller on December 15, Scott asked for classifications in certain departments that he named. According to Scott, Mueller said he would see what the Company could come up with. Mueller testified that he informed Scott again on that occasion that the Company had no classifications of employees. It is my conclusion that Mueller did state as he testified but I also believe that in the course of the conversation, he may have said in effect that he would do what he could to help Scott when Scott explained that he needed classifications in order to prepare proposed wage schedules. Between December 15, 1961, and February 13, 1962, Scott telephoned the Muellers' office and spoke to Harold Mueller about the Company furnishing a list of classifi- cations. Harold Miller, who had not been present on December 15, said he knew nothing Pbout the matter but would get in touch with the Company. Scott also telephoned Meador who likewise had not been present on December 15. Scott testified that Meador said he would get such a list. Meador states that he told Scott that he would talk to Karl Mueller about the matter Under the circumstances, in- cluding the position taken by Karl Mueller and Meador on July 26 that the Company had no classifications and the testimony hereinafter described, I believe that Meador's version is the more convincing and plausible on this point. Meador may well have said also that he would look into the matter but other than a remark of this nature I do not believe that he made a definitive commitment as described by Scott, par- ticularly in view of Meador's absence from the December 15 meeting. At a meeting on February 13, Scott again asked for a list of classifications. I credit Mueller and Meador that they once more repeated that the Company did not have classifications 29 The parties discussed jobs in the different departments Some employee members of the union negotiating committee at the meeting described jobs and operations in various departments. Scott testified that he informed the company representatives of some other departments for which he did not have comparable information Meador or Mueller said that they would bring in someone who would give Scott the information he required. The following day, February 14, Plant Superintendent Lucher was present at a meeting of the parties. Lucher described the various operations and the work per- s8 His testimony as to whether such was not the fact was, "That 's right ; I had no need for one [classification list]." 20 Karl Mueller testified that he had gone into the meeting without knowing that he was to furnish anything to the Union. He testified that he believed his previous state- ments to Scott regarding the nonexistence of classifications had disposed of that matter. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD formed by the employees. He answered all Scott's questions along the foregoing lines. Scott testified that Lucher had given him the information that he had re- quested but not in the exact form he had asked for when he originally had made the request for a classification list. Lucher, in describing the various operations in the departments, did not say that this employee or that employee was a particular classification but he described what work the employees performed. Admittedly, various employees referred to themselves according to their primary type of work such as a "wheelabrador" or "degreaser" but there is no testimony to controvert the Respondents' position that it maintained no classifications or job titles. Meador testified that neither on payroll records, nor personnel records, nor any place else, did Respondents have job classifications. Karl Mueller's position was the same. Lucher testified to the same effect. When the latter was questioned about such jobs as debonder or wheelabrador in the brake shoe department and was asked about how much time an employee spent on such particular jobs, he testified that no oper- ation in the department operated all day long and that after working a few hours or less on a particular operation, an employee would be shifted to some other oper- ation and so forth. It may also be noted that Bowman, an employee for about 4 years, testified regarding the teardown department, where he worked, that he did not have a classification. Scott admitted stating on February 14 that it would be almost impossible to write classifications for every individual operation. Scott also testified that he had asked to go into the plant to look at various operations in view of the Company's refusal to supply classifications. Such permis- sion was allegedly refused. Scott was not clear as to when he made such requests but finally named February 13 as such an occasion 30 My overall conclusion with respect to the complaint allegation regarding classifica- tions is to recommend dismissal. I find no violation of Section 8(a)(5) on this count. Respondents did not maintain classifications or job titles. They did not have in written form the description of operations and job tasks that Lucher fur- nished orally on February 14, and, in view of the circumstances described, I find that Respondents had no legal obligation to create job classifications or to write up job titles for the benefit of the Union. Scott admittedly received from Lucher on February 14 all the information he desired. It is reasonable to believe that if the Union in July had asked for a description of operations and work performed, it would have received at an early date the information furnished on February 14 through Lucher. Instead, the Union had been asking from the beginning for a classification list in the face of clear statements by Respondents that they had no classifications.31 As I heard the testimony regarding the request for a classification list and later the testimony that Lucher, by describing the jobs and operations, had given Scott the information he desired, it was my opinion that if it had been made clear initially that a description of the foregoing type was desired, it would have been forthcoming at an earlier point. Instead, as I see the matter, Scott had referred consistently to a list of classifications and Respondents had consistently said they had no classifications (which is apparently the fact) and it was not until February 13 or 14 that their minds met as to what was wanted.32 Under these facts, as stated above, I find no violation of the Act and I recommend dismissal of the complaint in this respect 33 4. Refusal to pay employees the annual Christmas bonuses Respondents established a Christmas bonus in 1949, and, thereafter a bonus was paid to the employees at Christmas in every year up to 1961. In a few of the so As noted in another connection, by arrangement of both parties, an expert on incen- tive plans, who had been retained by Respondents, met with an expert on such matters from the Union's home office, on March 13 and 14, 1962 The two experts discussed Respondents' operations in great detail and also made a tour of the plants to enable the union representative to have a firsthand view of operations. All information desired about jobs and operations was freely disclosed by Respondents' representative. a On July 26, as we have seen, the Union had received the names of all employees, the department in which each worked, the individual wage rate, and the date of hire. 82 The Union and the General Counsel took the position that the Union was entitled to written classifications and in that sense there was no meeting of the minds However, the information that the Union wanted became clear on February 13 and 14 and in that sense there was a meeting of the minds. as The record indicates that although the Union by February 14 had complete informa- tion regarding Respondents' jobs and operations, it had not submitted any proposed classi- fications to Respondents The Union of course had no obligation to do so but classifica- tions are not infrequently proposed by unions when they are not presently in existence. EXCHANGE PARTS COMPANY 731 years (1949 and 1951), the bonus was in the form of a turkey or ham but in recent years it had been a check for a sum of money. During the union election campaign in 1960 Respondents issued a three-page bulletin to the employees enumer- ating the benefits that they had received over the years. Included among the benefits, along with such items as paid vacations, holidays, and other advantages, was Christ- mas bonus. The bulletin showed the annual dollar cost to the Company of the various benefits as well as the dollar amount each benefit represented to the indi- vidual employee. Among these items was: Thus equals this I nnual cost amo.int per year to company to you Generous Christmas bonus (based on 1958)________ $37,842-00 $126. 14 It was also stated regarding the enumerated benefits that "these benefits amount to 42 cents per hour over and above your regular pay.... . The company newspaper, Epco Echo, which is mailed to the homes of employees, contained in its March 1961 issue an article dealing with the "existing benefits .. . you, now, as an employee of this Company enjoy...:' Among the benefits was the Christmas bonus, including the dollar value figures set forth in the preceding paragraph, supra, from the 1960 bulletin. It is therefore apparent that the Christmas bonus was a form of "wages" and monetary compensation and was also a "condition of employment" as those terms are encompassed by the Act. The bonus was so regarded by the Company and it so advised its employees. As such, the bonus was a proper subject of collective bargaining 34 Nor is this conclusion altered because the bonuses were given in variable amounts or because McDonald, president and majority stockholder of the Company until his death in the latter part of January 1961, was the one who made the decision to pay a bonus and the amount thereof.35 In January 1961, a few weeks before McDonald's death, a meeting was held at which were present McDonald, Bruegger, Meador, and Karl Mueller. McDonald asked Mueller whether the Company could go ahead with its plans for an incentive wage program. Preparations for such a program had been made in 1959 but on Mueller's advice that the institution of such a program at that time, in the face of the union organizing drive, might give rise to unfair labor practice charges, the incentive program had been held in abeyance. In January 1961, at the above meet- ing, Mueller told McDonald that it would be all right to proceed with the incentive program. McDonald then said that the incentive program would be placed in effect as soon as possible and the employees would receive additional compensation as a result. He said that the Christmas bonus would be discontinued. Earlier in the hearing, the General Counsel had asked Mueller, at the close of the latter's opening statement regarding Respondents' position as to the complaint and the issues, whether Respondents' position was that the incentive program was a substitute for the bonus or whether it was a separate benefit. Mueller replied that "it was not a quid pro quo, in other words, we didn't say that we are going to establish a percentage wage arrangement in lieu of a payment of Christmastime, but there is an inevitable and inextricable relationship because all payments go to the cost of operation and . . . on the same occasion it was determined that there would not be any more payments at Christmastime . I can't say that they were not related but I can say that it wasn't in the nature of a quid pro quo incentive for the Christmas present. There were other considerations actually in connection with the Christmas thing.. ." 36 Following the above meeting, the January 1961 issue of the Epco Echo announced the establishment of the wage incentive program and the account therein occupied 34 Singer Manufacturing Company, 24 NLRB 444, 470, enfd 119 F. 2d 131 (C.A. 7) ; Tower Hosiery Mills, Inc, 81 NLRB 658. 659, enfd 180 F. 2d 701 (C.A. 4) ; Niles-Bement. Pond Company, 97 NLRB 165, enfd. 199 F. 2d 713 (C.A. 2) ; Century Cement Manufac- turing Company, Inc., 100 NLRB 1323; The American Lubricants Company, 136 NLRB 946. m Bruegger, executive vice president of the Company since McDonald's death and who had been associated with the Company since 1951, testified that the bonus formula was based on years of service. As he explained it, an employee who had been with the Com- pany 5 years would have more bonus hours than an employee with only 2 years' service. S0 Both Meador and Bruegger testified that very little was said at the January 1961 meeting about the bonus other than that it was to be discontinued . As Meador stated, .. there wasn't a whole lot of discussion about it (the bonus], except as Mr McDonald stated, he had made the decision to discontinue the so-called Christmas bonus." 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD approximately a full page of the paper.37 No reference was made to the Christmas bonus and it is admitted that at no time were the employees or the Union informed that the bonus would not be paid. When the bonus was not paid on or about December 25, 1961, the employees and the Union learned of its discontinuance though even then there was apparently no announcement but simply the fact of nonpayment. The union charges of January 3, 1962, included the allegation that the bonus had been unilaterally discontinued. In connection with the foregoing, it may be noted that on June 14, 1961, during the union election campaign, the Company issued a campaign bulletin to its employees. The employees were urged by the bulletin to vote against the Union and the em- ployees were told that they should consider "some of the things we have at Exchange Parts Company. Among them are: ... .. There followed a listing of benefits in- cluding "jobs worth having"; "steady work"; "paid vacations"; and other items, but no reference was made to Christmas bonus, or for that matter, to the recently instituted wage incentive program. The introductory wording of the bulletin indi- cated that the list was not all-inclusive and, in fact, about 11 employee benefits, as well as the Christmas bonus, that had been listed as employee benefits in the March 1961 issue of the Epco Echo, as well as in a March 1960 bulletin, were not included in the June campaign bulletin, although there is no evidence that they had been discontinued.38 There is nothing in the record, including the fact that the parties, in their con- tract negotiations, made no reference to the bonus, that warrants the conclusion that the Union had waived its right to bargain about the bonus, a bargainable subject. The Board has consistently held that a waiver is not to be readily inferred and it is to be established that the subject matter was consciously explored and that a party has "clearly and unmistakably waived its interest in the matter" and has "consciously yielded" its rights therein 39 Absent a waiver. which I find is not present in this case, a bargainable subject, such as the Christmas bonus, may not be dealt with uni- laterally by either party as I find was the fact herein.40 Although the testimony of Bruegger, Meador, and Mueller was as described re- garding the January 1961 decision to discontinue the bonus, the Company's books thereafter continued to carry a figure, based on prior years' experience, for Christmas bonus on an accrued or contingent basis. Bruegger, who had been an accountant for the Company prior to becoming executive vice president, explained this as due to the fact that the Company's accountants had been unaware of the January manage- ment decision. A new IBM accounting system was also being introduced and Bruegger had given instructions not to alter or revise any existing accounting pro- cedures or data until the auditors got into the matte: He testified that he did not become aware that amounts had been set up on the accounting sheets and responsi- bility report for the Christmas bonus in 1961 until late in that year. The continued carrying of the Christmas bonus on the books of the Company after the testified-to decision to eliminate the bonus on January 16, 1961, raises some question. However, I am prepared to accept the explanation as given This will consequently entail consideration of the contention that the bonus was d'scontimied in January 1961 prior to the Union's victory in the June election and its certification in July 1961. While the decision of Tanuary 1961 to discontinue the bonus occurred at a time when the Union was not the bargaining agent of the employees and hence Respondents at that time had no legal obligation not to act unilaterally, the actual nonpayment of the bonus in December 1961 is a different situation. At the latter date, and since July 3, 1961, the Union was the certified bargaining agent. The nonpayment of the bonus, therefore, was within the bargaining comnass and, having heretofore found that the bonus as a bargainable subject could not be withheld unilaterally, I find that 31 About 70 percent of one page and 20 percent of another, in double columns "Benefits listed in March 1960 and in Mai ch 1961 that were not listed in June 1961 were : discounts on merchandise purchased, social security, bowling league, Christmas bonus, employee lunchroom, employee telephones, free flu shots, company paper, poll taxes and car tags sold at plant on company time, vending machine receipts, unemployment insurance, workmen's compensation insurance. 31 Tide Water Associated Oil Company, 85 NLRB 1096, 1097; Beacon Piece Dyeing and Finishing Co., Inc., 121 NLRB 953, 956; The Press Company, Incorporated, 121 NLRB 976, 977-978; Inland Steel Company, 77 NLRB 1, enfd. 170 F. 2d 247 (C.A. 7). so Cases cited, supra, in preceding footnote. 0 EXCHANGE PARTS COMPANY 733 the unilateral nonpayment of the bonus, in December 1961, constituted a violation of Section 8(a) (1) and (5) of the Act.41 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with its business operations 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 thereof. V. THE REMEDY ,Having found that Respondents have engaged in certain unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, it will be recommended that Re- spondents cease and desist therefrom and take certain affirmative action to effectuate the policies of the act Since it has been found that the Christmas bonus constituted wages within the meaning of the Act and since as wages and, indeed by its very nature, the bonus was a benefit enjoyed by the employees, the elimination of the bonus was a detriment to the employees. It is the Board's customary policy to direct a Respondent to restore the status quo where Respondent has taken unlawful unilateral action to the detriment of its employees 42 The rationale of such a policy is that it prevents the wrongdoer from enjoying the fruits of his unfair labor practices and gaining an undue advantage at the bargaining table when it ultimately, after an unfair labor practice proceeding, bargains about the bonus that it has already discontinued.43 As recently observed, "It is clear that absent the unilateral discontinuance of the bonus, which is the basis for the alleged violation of both sections of the Act [Sec- tion 8(a)(1) and (5)], the represented employees would in 1960 have been paid the same bonus as they were paid in 1959, or one computed in the same manner as in 1959." 44 In the cited case "in order to effectuate the policies of the Act and to restore the status quo ante," Respondents were directed to make whole the employees by paying them the bonus of which they were unlawfully deprived. The same remedy is appropriate in the instant case and it is so recommended.45 The record in the case before me does not show that the incentive wage placed effect by Respondents early in 1961 was a quid pro quo for the bonus. Karl Mueller specifically denied that one was a quid pro quo for the other although observing the manifestly evident fact that anything that a Company pays out goes to the cost of operation. Assuming that the incentive wage program constituted a benefit to the employees,46 neither the employees nor the Union, as we have noted, were ever advised that the bonus was to be discontinued or that the incentive wage was a substitute therefor. 41 Plumbers & Pipe Fitters Local Union 214 (D. L. Bradley Plumbing and Heating Co.), 131 NLRB 942, 944; N L.R.B. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen it Helpers of America, et at (Pacific Intermountain Empress Co.), 225 F. 2d 343, 346 (CA. 8) Aside from the nonpayment of the bonus, it would appear that Respondents were also obliged to advise the Union, when it became the bargaining agent, of Respondents' prior decision regarding the regular December bonus If Respondents had decided in January 1961 that in September 1961 it would lay off 20 employees or would change the hours of work in the plant on that date (September), I believe that Respond- ents would not have obviated the requirement of discussion with, and information to, the Union, after the latter's certification, by pointing to the fact that Respondent's decision had been made in January It could as well be argued that if an employer had decided, before the advent of a union, that he would not observe seniority or would not grant a wage increase in the coming year, that the Union would be foreclosed from bargaining on such subjects after its certification. 45 For instance, John W. Bolton it Sons, Inc, 91 NLRB 989, 991. 4i Cf Marcus Truclong Company, Inc., 126 NLRB 1080, enfd. 286 F. 2d 583, 593-594 (CA 2). 44 The American Lubricants Company, 136 NLRB 946. 4E It would appear that since Respondents in 1961 carried on their books an amount for bonuses based on prior years, these amounts represent a fair basis for the December 1961 bonuses under the Caine formula used in prior years It is so recommended. 48 As we have seen, Respondents, in their June 1961 bulletin, did not cite the incentive wage as one of the benefits enjoyed by their employees. 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In an extended article of January 1961, explaining the introduction of the wage incentive program, not a word was said about the Christmas bonus or that wage incentives were being substituted for bonuses. Respondent, in fact, had gone to considerable pains to point out to the employees that benefits to the employees had been continuously added over the years, and such was the fact. As new benefits were added, existing benefits continued and new benefits were additions, not substitutes 47 In 1959, when studies were made for instituting an incentive wage and the program had advanced to the point where its formal institution at the plant was withheld solely because of the advice of counsel, there was, according to the evidence, not the slightest discussion or intimation, even among management, that the incentive wage was to be a substitute for the Christmas bonus. If Respondents intended that the wage incentive program be a substitute for the bonus and that the overall effect of the unilateral discontinuance of the latter be compensated by the former, it was, I believe, incumbent upon Respondents to say so. The record simply shows that since 1959 Respondents had contemplated instituting a wage incentive, with no intimation that such a program was connected with the bonus. In 1961 Respondents did two things, it decided to and did in- stitute the wage incentive and discontinued the bonus. There was no incompatibility between the continued existence of the bonus and the wage incentive and Respond- ents have not contended that they withdrew the bonus in order to be able to give the wage incentive as substantial compensation for the bonus.48 As Respondents' counsel stated at the hearing, ". . I can say that it [the incentive program] wasn't in the nature of a quid pro quo incentive for Christmas present. There were other considerations actually in connection with the Christmas thing. We for some time had advised the Company that we thought that money spent in that fashion was money wasted and that we thought the thing ought to be discontinued, but that was quite apart from the establishment of the incentive wage thing which had been on the books, as the proof will show, long prior to the advent of the union in No- vember of 1959." 49 RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that the Respondents, their officers, agents, representatives. successors, and assigns, shall: 1. Cease and desist from: (a) Refusing or failing to bargain collectively with the Union, with reasonable notice and discussion, concerning layoffs of employees within the appropriate unit represented by the Union. (b) Refusing or failing to bargain collectively with the Union by not meeting for contract negotiations at reasonable frequency and with reasonable promptness. 47 "So that you may know the facts regarding your benefits at Epco, the following will show you, year by year, how your Company has continuously added more benefit8." (Em- phasis supplied ) Company bulletin of March 4, 1960 48 In Herman Sausage Co., Inc , 122 NLRB 168, 172, the Board noted that "The Respond- ent contends that it withdrew the fringe benefits in order to be able to give the wage Increase which substantially compensated the employees for loss of these benefits." 40 An hourly wage increase, additional fringe benefits, such as hospitalization, and a Christmas bonus, have in common the fact that they are primarily benefits to the em- ployees. The employees view them in this light. The employer also so regards them and It Is difficult to convince him that a wage increase is a benefit to the employer. Without getting into the many theories on this subject, it may be said that better morale or in- creased purchasing power may result from the wage increase and thus benefit the employer. Primarily, however, wage Increases, fringe benefits, and Christmas bonuses are a benefit to the employees for the same amount of effort. A wage incentive Is not necessarily in the same category as an hourly wage Increase, or a direct fringe benefit or a Christmas bonus It is not primarily a benefit to the employees alone although, depending on Its standards, it may be a benefit to them as well as to the employer While the employee may earn more income, he presumably works harder, absent the employer's investment in new machinery, and the cost (labor and overhead) per unit produced may be cheaper to the employer and thus beneficial to him There is, of course, nothing wrong with incen- tives but it Is difficult to equate them with such direct unconditional benefits to employees as Christmas bonuses, hourly rate increases, and fringe benefits. Perhaps this may ex- plain why Respondents considered the bonus and the incentive as two separate subjects and made no profession or attempt to equate or substitute one for the other. EXCHANGE PARTS COMPANY 735 (c) Refusing or failing to bargain collectively with the Union concerning the pay- ment of Christmas bonuses to their employees within the appropriate unit repre- sented by the Union. (d) Unilaterally terminating the Christmas bonuses of their employees within the appropriate unit represented by the Union. (e) In any like or related manner interfering with, restraining , or coercing their employees in the exercise of their right to self-organization, to form, join, or assist the Union, or any other labor organization, to bargain collectively through representa- tives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Upon request, meet with and bargain collectively with the Union with rea- sonable frequency and with reasonable promptness concerning the negotiation of a contract. (b) With reasonable notice and discussion, bargain collectively with the Union concerning layoffs of employees within the appropriate unit represented by the Union. (c) Upon request, bargain collectively with the Union concerning the payment of Christmas bonuses to employees within the appropriate unit represented by the Union. (d) Make whole the eligible employees in the appropriate unit for any loss they may have suffered by reason of Respondents' unilateral termination of the December 1961 bonus payments , in the manner set forth in the section of this report entitled "The Remedy." (e) Post in their plants, copies of the attached notice marked "Appendix." 50 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondents' authorized representative, be posted by Respondents immediately upon receipt thereof, and be maintained by them for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondents to insure that said notices are not altered , defaced, or covered by any other material. (f) Notify the Regional Director for the Sixteenth Region, in writing, within 20 days of the receipt of this Intermediate Report , what steps the Respondents have taken to comply herewith51 "'In the event that these Recommendations be adopted by the Board , the words "A Decision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notices . 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." 51 In the event that these Recommendations be adopted by the Board , this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith " 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 Rela- tions Act, we hereby notify our employees that: WE WILL bargain collectively with International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, Subordinate Lodge No. 96, with reasonable notice and discussion, concerning layoffs of employees within the appropriate unit, consisting of all production and main- tenance employees, including truckdrivers, warehousemen, shipping and receiv- ing employees, leadmen, and leadwomen. employed at Exchange Parts Company, Rebuilders Service Company, and Southwest Shoe Exchange Company, exclu- sive of office clerical employees, watchmen, guards, and all supervisors as defined in the Act. WE WILL, upon request, meet with and bargain collectively with the above Union with reasonable frequency and promptness concerning the negotiation of a contract. 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL, upon request , bargain collectively with the Union concerning the payment of Christmas bonuses to employees within the appropriate unit. WE WILL make whole the eligible employees in the appropriate unit for any loss they may have suffered by reason of our unilateral termination of the December 1961 Christmas bonus payments. WE WILL NOT in any like or related manner interfere with our employees' rights as guaranteed in the Act. EXCHANGE PARTS COMPANY, REBUILDERS SERVICE COMPANY, AND SOUTHWEST SHOE EXCHANGE COMPANY, Employers. 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, Federal ,Center, 300 West Vickery, Fort Worth, Texas, Telephone Number, Edison 5-5341, Extension 284, if they have any question concerning this notice or compliance with its provisions. G & H Products Corporation and Rudolph Edwin Brau. Case No. 13-CA-4783. October 31,190 DECISION AND ORDER On August 16, 1962, Trial Examiner Stanley Gilbert 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 its entirety, as set forth in the attached Intermediate Report. Thereafter, the General Counsel filed exceptions to the Intermediate Report together with a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner. [The Board dismissed the complaint.] INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE A charge having been filed by Rudolph Edwin Brau (hereinafter referred to as Brau) on March 28 , 1962, the complaint herein was issued on April 30, 1962, al- leging that G & H Products Corporation (hereinafter referred to as the Company or Respondent ) violated Section 8 (a) (3) and ( 1) of the Act by discharging Brau 139 NLRB No. 55.