Bartlett-Collins Co.

202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD may assume, arguendo, that the tactics used here, like the tactics used in N.L.R.B. v. Insurance Agents' International Union (Prudential Ins. Co.), 361 U.S. 477, 496, "deserve condemnation, but this would not justify attempting to pour that condemnation into a vessel not designed to hold it." We join our colleagues in their condemnation of arbitrary and invidious action against employees, whether at the hands of their em- ployers or at the hands of their bargaining representatives. We recognize also that their proposal represents a laudable effort to reach- in appropriate cases-union or employer conduct which falls out- side the literal scope of the Act's prohibitory unfair labor practice provisions. But to say that a proposal is laudable and that it has a salutary objective does not endow it with legal validity. In situations where employees have been the victims of truly arbi- trary or invidious discrimination at the hands of their statutory bar- gaining representative, with or without the employer acquiescence, they are not without recourse.38 This is true even where that arbitrary or invidious action is unrelated to legitimate union or other concerted activities protected by the Act. The courts have furnished, and do furnish, a remedy 39 Congress has throughout the years indicated no dissatisfaction with this remedial scheme. The position here ad- vocated by the majority represents, in our view, an unwarranted ex- tension of Board authority. 38Larus d Brother, Inc., 62 NLRB 1075; Hughes Tool Company, 104 NLRB 318, and see cases cited in footnote 39 infra. $' Steele v. Louisville and Nashville Railroad Co., 323 U.S. 192; Tun8tall v. Brother- hood of Locomotive Firemen & Enginemen et at , 323 U S. 210; Syres v. Oil Workers, 350 U.S 892 Bartlett-Collins Company and United Glass and Ceramic Work- ers of North America , AFL-CIO, and United Glass and Ce- ramic Workers of North America , Local 411. Case No. 16-CA- 1645. December 00, 1962 DECISION AND ORDER On September 21, 1962, Trial Examiner Joseph I. Nachman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report. 140 NLRB No. 20. BARTLETT-COLLINS COMPANY 203 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 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 entire rec- ord in this case, including the Intermediate Report and the excep- tions thereto, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' ORDER The Board adopts the Recommended Order of the Trial Examiner as its Order. 1In the absence of exceptions thereto, we adopt pro forma the Trial Examiner's find- ing that Respondent did not violate Section 8(a) (5) of the Act before December 26, 1961 INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, heard before Trial Examiner Joseph I. Nachman on July 12 and 13, 1962, in Tulsa, Oklahoma, involves allegations that Bartlett-Collins Company, herein called Company or Respondent, by failing to meet at reasonable times with the certified representative of its employees, violated Section 8(a) (5) and (1) of the Act.' All parties were represented at the hearing and were afforded full oppor- tunity to present evidence, examine and cross-examine witnesses, and to argue orally on the record. The parties requested and were granted an opportnuity to file briefs. Briefs have !been received from the General Counsel and from the Charging Parties, but not from the Respondent .2 Counsel for the Respondent has filed with me, and served upon all interested parties, an extensive motion to correct the record in a num- ber of stated respects. No opposition to this motion has been received. I have carefully checked the motion against the transcript, and find the same to be in all respects well taken. The motion is, therefore, granted in toto and the record is cor- rected accordingly. A copy of the motion has been placed in the exhibit file marked "Trial Examiner's Exhibit 1." Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Delaware corporation engaged at Sapulpa, Oklahoma, in the manufacture and sale of pressed and blown glassware, and in the course and conduct of its business annually receives from and ships to points and places outside of the State of Oklahoma goods valued at in excess of $500,000. I find that Respondent is, and at all times material has been, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED I find that United Glass and Ceramic Workers of North America , AFL-CIO, and United Glass and Ceramic Workers of North America , Local 411, herein called International and Local , respectively, and collectively called the Union , are labor organizations within the meaning of Section 2(5) of the Act. 1 The original and amended charges were filed and served April 16 and May 2S, 1962, respectively. The complaint issued June 1 1962 2 Counsel for Respondent advised the Trial Examiner by letter dated August 27, 1962, that unforeseen circumstances have made it impossible to file a brief on behalf of Respondent 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES INVOLVED A. The facts After the customary proceedings under a stipulation for certification upon consent election, the Regional Director for the Sixteenth Region, on October 9, 1961, cer- tified International as the collective-bargaining representative of Respondent's em- ployees in the agreed-upon unit. Respondent does not challenge this certification. For the purposes of negotiating a contract, the parties met on November 7 and December 7 and 8, 1961, and January 10, February 5 and 6, and March 9, 1962, but no agreement was reached. The General Counsel expressly disclaims any conten- tion that Respondent was guilty of bad-faith bargaining during the aforementioned bargaining sessions, limiting his case to the proposition that a violation of Section 8(a)(5) occurred because of Respondent 's failure "to meet [with the Union] at reasonable times." 3 The circumstances under which the various meetings were scheduled will now be set forth. In an exchange of telephone calls on October 17 and 18, 1961, between Hobbs, district president of International, and Mueller, counsel for Respondent, the parties agreed to hold their first meeting on November 7. In the interim, Respondent, on October 25, furnished the Union with certain information which the latter had re- quested to enable it to prepare for bargaining.4 The parties met on November 7 as agreed. Present for the Union were Hobbs, Henry Brig, and Louis Biehle, International representative, Wayne Sutterfield, presi- dent of the Local, as well as Joe Benning, Charles Willey, and Mary Cumby, mem- bers of the Local's wage negotiating committee. Present for the Company, were Karl Mueller, Respondent's counsel and chief spokesman during the negotiation, Edward Bartlett, majority stockholder, president, and treasurer; 5 Charlie Bartlett, vice president and assistant treasurer; Irving Bartlett, vice president and secretary; as well as Dene Iliff, Albert Coley, and Jesse Mantooth, each of whom occupies an executive position with Respondent.6 It is uncontroverted that toward the end of the November 7 meeting, Hobbs under- took to obtain from Mueller an agreement for the next meeting date, and that Mueller stated that both he and his client had commitments which made it im- possible to agree on any date at that time, but that he would call Hobbs "in about a week" to discuss a possible meeting date. It is likewise uncontroverted that Hobbs informed Mueller that he (Hobbs) would be at a specific hotel in Miami Beach from November 9 to 17, and that he could be reached there, or that a message might be left for him at his office. Hobbs, not having heard from Mueller, telephoned the latter on November 21, and inquired why he had not heard from him about a meeting date. Mueller replied that his schedule had been very heavy and "just to be truthful I had forgotten it." Hobbs then told Mueller that he was most anxious to get along with the negotiations and suggested meetings on November 27, 28, 29, and 30. Mueller replied that his schedule would not permit meeting on the suggested dates, but that he might arrange for December 1 or 2 and would call Hobbs the following day to let him know definitely. The following day Hobbs received a telephone call from Mueller's secretary who stated that Mueller would be unable to meet on De- s Because of this concession the Trial Examiner sustained objections Interposed by the General Counsel to testimony offered by Respondent dealing with the various proposals and counterproposals submitted by the parties, and the discussions on them at the various bargaining sessions, except to the extent that such discussions related to the scheduling of future meetings l There Is a conflict In the evidence between Hobbs, the chief witness for the Union, and Mueller, the only witness for Respondent, as to the precise day on which the parties agreed on the November 7 meeting date, the number of telephone conversations, and whether Hobbs during the telephone conversations had stated that he (Hobbs) would be unavailable for negotiations during the week of October 23 and on October 30 and 31 Although I believe It unnecessary to resolve this conflict in view of my assumption, herein- after set forth, that there was no undue delay in arranging and holding the meeting of November 7, I would credit Mueller because he is supported by his daily diary, which was introduced in evidence, while Hobbs testified only from memory. 5 Edward Bartlett is frequently away from Sapulpa for extended periods, but at all times remains In close touch with, and in overall charge of, all of Respondent's business affairs Charlie Bartlett resides in Sapulpa and Is in immediate charge In the absence of Edward Bartlett. 9 This was generally the composition of the respective negotiating teams at each of the subsequent meetings Where a variation occurred such will be noted BARTLETT-COLLINS COMPANY 205 cember 1 or 2 because of his heavy schedule, and that Mueller would call in a few days to discuss a definite date. On December 1 Mueller called Hobbs, suggested December 7 and 8 for meeting dates, and Hobbs agreed. Mueller admits that between November 7 and December 1, no one connected with Respondent made any effort to arrange meetings with the Union; that during that period he had available time to bargain with the Union, but did not do so because neither Charlie nor Irving Bartlett were available and they wanted to be present at all meetings.7 The meetings of December 7 and 8 adjourned early in the afternoon of the second day to enable Mueller to make his plane.8 Toward the end of the session on De- cember 8, Biehle asked Mueller when the parties could meet again, and the latter replied that Charlie Bartlett would be leaving for the west coast about December 10 to arrange for distribution facilities to supply products to its customers in that area, that he might return in time for a 1-day meeting during the week of December 18, and that the Bartletts would advise the Local's wage committee when Respondent's repre- sentatives would be available for a meeting. Biehle reported the aforementioned arrangements to Hobbs, and the latter, not having heard from Respondent by De- cember 18, wrote Charlie Bartlett (with a copy to Mueller), pointing out their failure to communicate with the Local's committee about a meeting date during the week of December 18. Hobbs asked in this letter that he be advised whether Re- spondent could meet between December 26 through 30, both inclusive. Mueller admits that Respondent made no reply of any kind to this letter. The first informa- tion Hobbs received about the January 10 meeting, was on January 2, when Sutter- field, president of the Local, told him that Respondent had advised that it would be available for ,a meeting on January 10. Mueller admits that Charlie Bartlett returned from his west coast trip on De- cember 20. There is no evidence tending to show, nor does Respondent claim, that Charlie Bartlett was unavailable between December 20 and January 10 for negotia- tions with the Union. Respondent does claim that between December 20 and Janu- ary 10, Edward and Irving Bartlett were in Brownsville, Texas, taking care of some rather extensive citrus groves owned by Edward Bartlett. Mueller admitted that it would have been possible for Edward or Irving Bartlett, or both, to have returned to Sapulpa, during that period, but claims that he had no way of knowing what sacrifices on their part this would have entailed. The parties met on January 10 and toward the end of that day Hobbs asked Mueller when he would be available for further meetings 9 Mueller replied he was very busy, that Charlie Bartlett had to attend the Home Show in Chicago, and that he, Mueller, would try to communicate with Hobbs "in a couple of weeks." Hobbs then told Mueller that the Union was most unhappy about the delay in getting meetings scheduled, and that he felt Respondent was "stalling." Mueller replied that nothing would be accomplished by arguing about when future meetings would be held. Hobbs again expressed his dissatisfaction about the delay in scheduling meetings, and stated that Mueller would hear from him further about the matter. Mueller's only reply was that he was "doing the best he could." 10 At this point one of the Bartletts stated that they should be back from the Home Show in time to let the Union know about a further meeting by January 22. On January 15, Hobbs wrote Mueller reviewing what had occurred up to that time, and complained of the delays in scheduling meetings, telling Mueller that the time had arrived for Mueller and his client to "quit stalling and agree to set up meeting dates to get this contract negotiated." In this letter Hobbs proposed that the parties meet on January 23, 24, 25, and 26, and if no agreement was reached, that further meetings be held on February 6, 7, 8, and 9, and asked, if the dates he P There is also a conflict between Hobbs and Mueller as to what was discussed between them in the November 21 telephone conversation, Mueller stating that he had no recollec- tion of Hobbs' suggesting meetings between November 27 and 30 I would credit Hobbs because Mueller failed to deny that Hobbs had suggested such meeting dates. Again, I regard this conflict of no particular importance in view of my assumption that there was no undue delay in the scheduling or holding of the December 7 and 8 meeting 8 Neither Hobbs nor Brig was present at this meeting ; Biehle acting as chief spokesman for the union negotiators Edward Bartlett was not among those present for Respondent 9 At the January 10 meeting the entire union negotiating committee was present except Brig, and Biehle left about noon Ed Bartlett was not present for Respondent 10 At this meeting Hobbs also asked Mueller when Respondent would be ready to submit counterproposals, to which Mueller replied, "When you ask for them " Hobbs said, "We're asking now " Mueller, who had been preparing to leave , resumed his ;seat and gave Hobbs about 10 items as counterproposals. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mentioned were not agreeable, that Mueller suggest alternate dates as promptly as possible. On January 22, Mueller wrote Hobbs suggesting that the parties meet on February 5 and 6, and by letter dated January 24, Hobbs agreed. Although Mueller's letter was a week after Hobbs' letter of January 15, he made no reference to that letter. The reason for this does not appear in the record. In any event, Mueller, on January 23, acknowledged receipt of Hobbs' letter of January 15. Although Mueller does not with specificity deny the factual statement made by Hobbs, he did assert that Hobbs has made "unfounded charges," and that because in his view nothing is accomplished by getting into a "cuss fight," he is refraining, for the time being, from answering Hobbs' letter in detail, as well as from pointing out "significant facts" which Hobbs omitted. Hobbs, under date of February 27, replied to Mueller's letter of January 23, the delay in replying being attributed by Hobbs to absence from his office. Hobbs, in effect, reiterated the assertions in his January 1-9 letter to Mueller, telling the latter "you and your client made the record," and that if, as Mueller claimed, any facts had been withheld, he (Hobbs) would like to know what they are. Hobbs closed this letter by again urging Mueller to agree to meeting dates so that a contract might be negotiated. In the meantime, the parties met on February 5 and 6 pursuant to the exchange of letters between Mueller and Hobbs dated January 22 and 24, respectively." Although Mueller claimed that meetings with the Union between January 22 and February 5 would not have been consistent with the commitments of the Bartletts and himself, the basis for this assertion is not stated unless it be the claim that he was busy attending to the affairs of other clients. Mueller admits that on January 23 he was in Sapulpa to discuss with the Bartletts some contract proposals which he intended to submit to the Union. Mueller also admits that toward the end of the day on February 6, he told Biehle, spokesman for the union negotiators in the absence of Hobbs, that he would let the Company know about his schedule, and they in turn could let the Local's committee know about a date for future meetings. Mueller likewise admits that after February 6, he did not, nor to his knowledge did any official of Respondent, make any effort to schedule meetings with the Union until shortly before March 9.12 While Mueller claims that during the interval between February 6 and March 9 he was occupied with business matters of one kind or another, he admitted that he could have been avaliable for meetings anytime Re- spondent wanted him, consistent with settings in the courts.13 There is a substantial conflict in the evidence as to what occurred at the final meeting between the parties on March 9.14 Because this was the last meeting, it seems appropriate to set forth in detail the versions of the respective witnesses. Mueller's version is as follows: Shortly before the session adjourned at approximately 4:10 p.m., Hobbs made some statement to the effect that the Union had moved and accepted a number of Respondent's proposals, and that it was now time for Respondent to accept some of the Union's proposals. Mueller stated that Respondent had given a great deal of thought to its proposal and was sincere in offering them. Hobbs asked, "Are you refusing to bargain with us?" Mueller replied, "If such was our intention we would not admit it; everything we have done has been in good faith." Mueller then told Hobbs that in the course of the discussions that day, a number of items had been passed at the latter's request, and that time could be spent in talking about those. Hobbs replied that with respect to some of the passed items it was his intention to prepare counterproposals, which he outlined in a general way, but that time would be needed to prepare them in final form and until this was done nothing further could be discussed. Mueller then asked Hobbs whether he wanted to suspend "The usual committee for the Union was present for this meeting except that Hobbs did not attend at all, and Brig attended only on February 5 For Respondent the entire committee attended except for Edward Bartlett. 12 The first information Hobbs received about a meeting on March 9, was on March 2 or 3, when he was told by Sutterfield, president of the Local, that Respondent had suggested a meeting on March 9 Hobbs told Sutterfield that the suggested date was agreeable 13 Although Mueller detailed the various business matters on which he was engaged vir- tually every business day between February 6 and March 9, the only court commitment he referred to was a court of appeals argument on February 21 14 Absent from the Union's negotiating committee at this meeting were Biehle and Brig; Hobbs acting as spokesman Absent from the Company's negotiating committee were Edward Bartlett and Charlie Bartlett, the latter being ill and confined to his home on that day BARTLETT-COLLINS COMPANY 207 bargaining until he had prepared his counterproposals, and then set up a meeting, to which Hobbs replied, "I guess so." Mueller agreed to this, telling Hobbs, "Let us know when you are ready to proceed," and on this note the meeting adjourned. Mueller did not regard the bargaining as "overwith," and was prepared to proceed with the bargaining at the time, having canceled a plane reservation during the luncheon recess in order that he could continue with the bargaining late in the evening of that day. Mueller claims that the reason for the lack of bargaining since March 9 is that Respondent has not been asked to bargain, the Union having never advised Respondent that it was prepared to submit counterproposals, or that it desired to bargain further. Hobbs' version of what transpired at the March 9 meeting, is as follows: A few minutes before the meeting adjourned shortly before 5 p.m., he asked Mueller to suggest some dates for future meetings. Mueller replied that he could not do so without checking his schedule, which was very heavy, but that he or the Company would let the Local's committee know when they could meet again. It was at this point that he told Mueller that the Union had accepted a number of Respondent's proposals, and that it was time that Respondent now accepted some of those proposed by the Union. Hobbs denied that he told Mueller that he was not prepared to proceed with the bargaining, or that he would have to have time to prepare counterproposals before he could bargain further. Since March 9, he has heard nothing from Mueller, or from the Company, about further bargaining. Hobbs admits that since March 9, he has made no demand on Respondent for bargaining because, as he put it, he was waiting for Mueller to "live up to his word, and let us know when he would be available for that purpose." I credit Hobbs, and find that the meeting of March 9 concluded with a commit- ment by Mueller to notify the Union when he would be available to resume nego- tiations. I reach this conclusion because it is entirely consistent with the course of conduct pursued by both the Union and Respondent during the prior negotiations. Moreover, I find it difficult to believe that a certified union, which for 5 months immediately following its certification had vigorously pressed for meeting dates to negotiate a contract with the employer, would ask for a break in negotiations to enable it to prepare revised proposals and then, for no apparent reason , fail to call on the employer for further bargaining. Yet, that precise conclusion is required if Mueller's version of the circumstances, under which the March 9 meeting con- cluded, is accepted. That this Union has not abandoned its certification, and that it still desires bargaining with the employer, would appear to be irrefutably established by the fact that it filed and is vigorously pursuing the charges filed herein about 5 weeks following the March 9 meeting. In view of the delays which it had experi- enced in scheduling meetings since December 10, which meetings were held for only 1 or 2 days about a month apart, it is not surprising that the Union after waiting another 5 weeks with no word from Respondent, filed its charge. B. Concluding findings Section 8 (d) imposes on negotiating parties a mutual obligation " to meet at reasonable times" and confer with a view of reaching agreement on contract terms. That interruptions to commerce may be prevented or minimized, Section 204 of the Labor Management Relations Act requires employers and employees alike to "arrange promptly" for conferences and to endeavor "expeditiously" to bring about a resolution of disputes over contract terms in which they may be engaged. The duty to do so is part and parcel of the obligation to bargain collectively. In I. H. Rutter- Rex Manufacturing Company, Inc., 86 NLRB 470, the Board stated: The obligation to bargain collectively surely emcompasses the affirmative duty to make expeditious and prompt arrangements , within reason, for meet- ing and conferring. Agreement is stifled at its source if opportunity is not accorded for discussion or so delayed as to invoke or prolong unrest or suspicion. It is not unreasonable to expect of a party to collective bargaining that he dis- play a degree of diligence and promptness in arranging for the elimination of obstacles thereto, comparable to that which he would display in his other business affairs of importance. The conduct of prompt and expeditious negotiations is a matter of importance not only to the negotiating parties, but to the public as well . A delay in collective bargaining, as the Board observed in Burgie Vinegar Company, 71 NLRB 829, entails more than mere postponement of an ordinary business trans- action, for the passage of time itself, while employees grow dissatisfied and impatient at their designated bargaining agent's failure to report progress, 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD weakens the unity and economic power of the group, and impairs the Union's ability to secure a beneficial contract. The Act . does not permit an em- ployer to secure, even unintentionally, a dominant position at the bargaining table by means of unreasonable delay. To the same effect see: "M" System, Inc., Mobile Home Division Mid-States Corpora- tion, 129 NLRB 527, 549; Butcher Boy Refrigerator Door Company, 127 NLRB 1360, enfd. 290 F. 2d 22 (C.A. 7); Derenson's, 104 NLRB 273; Cummer-Graham Company, 122 NLRB 1044. Applying the aforementioned rule to the facts of the instant case , I must and do conclude that Respondent did not devote, to the task of bargaining with the Union, that degree of diligence and promptness which it, or any other prudent man, would display in the handling of other important business affairs. Rather, the inference which I draw from the record, considered as a whole, is that at least since December 26, 1961, Respondent deliberately refrained from meeting with the Union "at reasonable times," and thereby violated Section 8(a) (5) of the Act. Notwithstanding the General Counsel's contrary contention, I start with the as- sumption that there was no inordinate delay in the scheduling of the first meeting held on November 7, or in the lapse of time between that meeting and the one which followed it on December 7 and 8.15 The time which elapsed between the meetings following December 8, in my opinion, presents a different situation and requires a different result. As found above, the December 8 meeting adjourned with the understanding that in view of Charlie Bartlett's anticipated return from his west coast trip on or about December 20, Respondent would endeavor to arrange a meeting during the week of December 18. Respondent does not claim that it made any effort to comply with that promise, nor did it give any explanation, plausible or implausible, for its failure to do so. Admittedly, no reply was made to Hobbs' letter of December 18 which expressed the desire of the Union to complete negotiations as promptly as possible, and suggested meetings between December 26 and 30. No explanation is given for the failure to respond to this letter. It is clear from the record that Charlie Bartlett was in Sapulpa during the period suggested by Hobbs, and no explanation is given for his failure to meet with the Union during that period, unless perhaps it is Mueller's testimony that Charlie Bartlett wanted Irving Bartlett present at all negotiations and the latter was in Texas assisting Edward Barlett in the harvesting of a citrus crop. It must be remembered, however, that the citrus enterprise was one of Edward Bartlett's private investments which, so far as this record indicates, had no connection with Respondent Company or its business affairs. In a similar posture is the delay between the meeting on January 10 and the next bargaining sessions on February 5 and 6. The January 10 meeting adjourned on the note that the Bartletts expected to return from the Home Show in Chicago in time to let the Union know about a further meeting by January 22. It was at this meeting that Hobbs told Mueller that the Union was unhappy about the delay in getting meet- ings scheduled, and accused Mueller of "stalling." All this was reiterated by Hobbs in his letter of January 15 to Mueller, and he then suggested meetings from January 23 through 26, and if no agreement was reached that the parties meet again from February 6 through 9. Although Mueller's letter to Hobbs, dated January 22, is a week after Hobbs' letter suggesting the January meeting dates, Hobbs' charges are at that time completely ignored and the meeting dates of February 5 and 6 are sug- gested, which Hobbs promptly agreed to 16 Although Mueller claims that a meeting with the Union during the January period suggested by Hobbs would not have been consistent with the commitments which he and the Bartletts had, Mueller ad- 16I make this assumption because more time was obviously needed for Respondent to gather and submit the data which the Union had requested, and to otherwise prepare itself for the ensuing negotiations. Approximately one-third of the period which elapsed between the first and second meetings (November 9 through 17), is accounted for by the unavailability of Hobbs. From November 17 to the end of that month both Charlie and Irving Bartlett were in New York giving their attention to important company business While it could be argued that an effort should have been made at the November 7 meeting to agree on at least a tentative date for future meetings, subject to the availability of the Bartletts, rather than waiting for their return before attempting to agree on a date, the fact remains that the Bartletts did not return from New York until November 30. Even if it be assumed that the negotiations could have been resumed the following day (an assumption which I do not regard as justifiable), the most that could have been saved is 1 week. 10 It is interesting to note that when Mueller on January 23 replied to Hobbs' letter of January 15, nothing is said about expediting meeting dates. BARTLETT-COLLINS COMPANY 209 mitted that he was in Tulsa conferring with the Bartletts on January 23, and while Mueller testified to various business engagements on behalf of other clients during the period referred to, the evidence does not indicate why the Bartletts could not have then been available for bargaining. Likewise, except for the possible unavailability of Mueller, the record does not establish why the Bartletts could not have continued with the bargaining sessions on February 7, 8, and 9, dates which Hobbs has suggested in his letter of January 15, or why they were not available on other days between February 6 and March 9, when the final meeting was held. Mueller admits that the February 6 meeting closed on the note that he would advise the Company of his commitments and the Company would in turn notify the Local's committee when it would be available for a meeting. Mueller further admits that he could have been available whenever the Company wanted him consistent with his settings in the courts.17 However, Respondent made no effort to schedule meetings between February 6 and March 9 nor did it give any reason for its failure to do so. Not only is Respondent's conduct since March 9 a part and parcel of its totality of conduct during the entire period of negotiations, but standing alone, appears to be a clear-cut failure "to meet at reasonable times," as required by Section 8(d). As I have found, the March 9 meeting concluded on the note that Respondent would notify the Union when it would be available for further negotiations. Admittedly, it has not done so. In Butcher Boy Refrigerator Door Company, 127 NLRB 1360, 1361, the Board found an independent refusal to bargain in good faith based on the employer's "`failure to fulfill its promise . . . to let the Union know when the Re- spondent would meet again." Respondent does not contend that any impasse was reached during the negotiations on March 9. Its only defense for its failure to at- tempt to schedule meetings since March 9 is that it has received no request from the Union for such bargaining. I find this defense to be without merit for two reasons: First, as I have indicated, it was Respondent, not the Union, that assumed the obli- gation of arranging for further meetings. Secondly, even assuming that Respondent had not agreed to arrange meetings, the obligation to bargain is a continuing one and rests with the employer. True, the duty to bargain does not arise until a request there- for has been made by the collective-bargaining representative, but the statute does not require that the representative renew such a request every time there is a recess in the negotiations. The M. H. Ritzwoller Co. v. N.L.R.B., 114 F. 2d 432, 436 (C.A. 7). Here the initial request for bargaining was made by the Union in October 1961, and although such was not required to keep Respondent's obliga- tion current, it was, in fact, renewed at each meeting, and by Hobbs' letters of Decem- ber 18, January 15, and February 27. No more was required of the Union. Although counsel for the Respondent has not filed a brief with me, I assume from his testimony and positions stated at the hearing, that he contends here, as he did in Exchange Parts Company, 16-CA-1579, 1590 [139 NLRB 710], now pending before the Board,ts that demands upon his time by his many clients were so great that it was not possible for him to devote more time than he did to bargaining in the instant case. While the record leaves no room for doubt that Mueller is an extremely busy labor attorney with a great number of clients who are constantly making de- mands on his time with regard to matters necessitating his prompt attention, I do not believe that his obligations to his other clients can be relied upon as a defense in the instant case. I am in full accord with what was said in this connection by Trial Examiner Leff, and subsequently approved by the Board, in "M" Systems Inc, Mobile Home Division Mid-States Corporation, 129 NLRB 527, 549: The record here quite clearly supports a finding that the Respondent, in arrang- ing meetings with the Union failed to display the degree of diligence that proper performance of its bargaining obligations required. This is so whether or not the delays were inspired by a deliberate scheme to engage in dilatory tactics. One may sympathize with the problems of the Respondent's negotiator in fitting the negotiating meetings into the schedule of his busy law practice, but this provides the Respondent with no legal excuse for the consequent inordinately long de- lays tending to impair employee statutory rights. Labor relations are urgent matters too. If [Counsel's] other activities made it impossible for him to de- vote adequate time to reasonably prompt and continuous negotiations, it was the Respondent's obligation to furnish a representative who could. The duty to bargain in good faith includes the duty to be available for negotiations at reason- able times as the statute requires. That duty is not discharged by turning over 17 As pointed out supra, the only court engagement Mueller referred to in relating his various business commitments was a court of appeals argument on February 21. 18 See II1-241-62, issued January 11, 1962, by Trial Examiner Ramey Donovan 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the conduct of negotiations to one whose other activities make him not so avail- able. See, Cummer-Graham Company, 122 NLRB 1044; Derenson's, 104 NLRB 273. Accordingly, I find and conclude that at all times since December 26, 1961, and particularly since March 9, 1962, Respondent has failed to meet with the Union at reasonable times for the purpose of bargaining collectively, and thereby violated Section 8(a) (5) and (1) of the Act.19 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices , I shall recommend that it cease and desist therefrom , and that it take certain affirmative action deemed necessary to dissipate the effects thereof and to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International and Local are labor organizations within the meaning of Section 2 (5) of the Act. 3. United Glass and Ceramic Workers of North America, AFL-CIO, was on October 9, 1961, and has at all times thereafter been, the certified exclusive bargain- ing representative, for the purposes of collective bargaining within the meaning of Section 9(b) of the Act, of all production and maintenance employees employed at Respondent's plant at Sapulpa, Oklahoma, including control laboratory employees, sample room attendants, machine shop employees, shipping and receiving employees, truckdrivers, and plant clericals, exclusive of moldmakers, moldmaker apprentices, office clerical employees, professional and technical employees, watchmen, guards, and all supervisors as defined in the Act. 4. By failing to meet at reasonable times with United Glass and Ceramic Workers of North America, AFL-CIO, as the exclusive representative of all employees in the unit described above, for the purposes of collective bargaining, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 5. By the aforesaid conduct, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that the Respondent, Bartlett-Collins Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with United Glass and Ceramic Workers of North America, AFL-CIO, as the exclusive collective-bargaining representative of all 19 While I do not think that the determination of the date on which the refusal to bar- gain first occurred is of material significance in the instant case, as there is no Section 10(b) reinstatement or economic strike problem, I have nonetheless fixed it at Decem- ber 26, 1961. Having found that there was no undue delay in the scheduling or holding of the November 7 and December 7 and 8 meetings, such refusal must have occurred at some later date. December 26, 1961 , was selected because it is the first meeting date suggested in Hobbs' letter of December 18, to which Respondent , for no justifiable reasons apparent on the record, failed to respond. BARTLETT-COLLINS COMPANY 211 its employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, by unduly delaying meetings, or by failing to meet at reasonable times. The appropriate unit is: All production and maintenance employees at the Bartlett-Collins Company plant at Sapulpa, Oklahoma, including control laboratory employees, sample room attendants, machine shop employees, shipping and receiving employees, truckdrivers, and plant clericals, exclusive of moldmakers , moldmaker apprentices , office clerical employees, professional and technical employees, watchmen, guards, and all supervisors as de- fined in the Act. (b) In any like or related manner interfering with , restraining, or coercing em- ployees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized by Sec- tion 8(a)(3) of the National Labor Relations Act, as amended. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Upon request, meet at reasonable times and bargain collectively with United Glass and Ceramic Workers of North America, AFL-CIO, as the exclusive rep- resentative of the employees in the appropriate unit set forth above, and embody any understanding reached in a signed contract. (b) Post at its plant in Sapulpa, Oklahoma, copies of the attached notice marked "Appendix." 20 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region (Fort Worth, Texas), shall, after being duly signed by a representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director, in writing, within 20 days from the date of the receipt of this Intermediate Report and Recommended Order, what steps the Respondent has taken to comply herewith.21 20 In the event that this Recommended Order be adopted by the Board, the words "A De- cision and Order" shall be substituted for the words "The Recommendations of a Trial Examiner" in the notice In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order" shall be substituted for the words "Pursuant to a Decision and Order " 21 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify the said Regional Director , In writing, within 10 days from the date of this Order , what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Re- lations Act, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with United Glass and Ceramic Workers of North America, AFL-CIO, as the certified exclusive bargaining representative of the employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of em- ployment, by unduly delaying meetings or by failing to meet at reasonable times. The appropriate unit is: All production and maintenance employees employed at the Sapulpa, Oklahoma, plant of Bartlett-Collins Company, including control laboratory employees, sample room attendants, machine shop employees , shipping and receiving employees, truckdrivers, and plant clericals, exclusive of mold- makers, moldmaker apprentices, office clerical employees , professional and technical employees , watchmen , guards, and all supervisors as defined in the Act. 681-492-63-vol. 140-15 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner interfere with , restrain, or co- erce our employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to bargain collectively through repre- sentatives of their own choosing, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized by Section 8(a)(3) of the Na- tional Labor Relations Act, as amended. WE WILL, upon request, meet at reasonable times and bargain collectively with United Glass and Ceramic Workers of North America, AFL-CIO, as the exclusive bargaining representative of the employees in the aforementioned ap- propriate unit, and, if an understanding is reached , embody such understanding in a signed agreement. All our employees are free to become, remain , or refrain from becoming or remain- ing members of any labor organization. BARTLETT-COLLINS COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort Worth 2, Texas, Telephone No. Edison 5-4211, Extension 2131 , if they have any question concerning this notice or compliance with its provisions. The A. B. Hirschfeld Press, Inc. and Local 15, Amalgamated Lithographers of America. Case No. 27-RC-2165. December 20, 1962 DECISION AND ORDER Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Allison E. Nutt, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Rodgers and Leedom]. Upon the entire record in this case the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent employees of the Employer.' 3. No question affecting commerce exists concerning the represen- tation of employees of the Employer within the meaning of Section 1 The following labor organizations were permitted to intervene on the basis of their current contracts covering employees of the Employer : Offset Workers , Printing Pressmen & Assistants Union No. 40, IPP & AU of N.A., AFL--CIO ; Denver Photo-Engravers Union No. 18, IPEU of N.A., AFL-CIO ; Denver Typographical Union No. 49, ITU, AFL-CIO, referred to herein respectively as Pressmen , Photo-Engravers , and Typographers . Inter- national Photo-Engravers Union of North America, AFL-CIO, was also allowed to inter- vene separately on its own behalf. 140 NLRB No. 35.