Texas Industries, Inc,

TEXAS INDUSTRIES, INC. 527 Texas Industries, Inc. and United Cement, Lime and Gypsum Workers International Union, AFL-CIO. Case No. 16-CA- 1607. January 8, 1963 DECISION AND ORDER On September 26, 1962, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that 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. There- after the General Counsel filed exceptions to the Intermediate Report and a brief in support thereof. Respondent filed a reply brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board had delegated its powers in connection with this case to a three- member panel [Chairman -McCulloch and Members Rodgers and Leedom]. The Board has reviewed the rulings 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 the case, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner.' [The Board dismissed the complaint.] i Subsequent to the issuance of the Intermediate Report, the General Counsel moved to reopen the record and remand the case to the Division of Trial Examiners for the "limited purpose of permitting consolidation for hearing the instant matter with Texas Industries, Inc., Case No 16-CA-1719 " As it appears that the charge in Case No 16-CA-1719 alleges new unfair labor practices which may be litigated in that case, the motion is hereby denied The General Tire and Rubber Company, 135 NLRB 269; Palmer Manu- facturing Corporation, 94 NLRB 1477. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE On January 29, 1962, the above-named labor organization filed its charge in this case. On May 18, 1962, the General Counsel of the National Labor Relations Board issued and served his complaint, alleging that the Respondent had engaged in and was engaging in unfair labor practices in violation of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended . On May 22, 1962, the Respondent filed its answer, denying the allegations of unfair labor practices. Pursuant to notice, a hearing was held in Fort Worth, Texas, on August 6, 7, and 8, 1962, before Trial Examiner C. W. Whittemore. At the hearing all parties were represented and were afforded full opportunity to present evidence pertinent to the issues to argue orally and to file briefs. Disposition of the Respondent's motion to dismiss the complaint upon which ruling was reserved at the hearing, is made by the following findings, conclusions, and recommendations. Upon the record thus made, and from his observation of the witnesses , the Trial 'Examiner makes the following: 140 NLRB No. 50. 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Texas Industries, Inc , is a Texas corporation with principal office in Arlington, Texas, and is engaged in the business of manufacturing cement. During the period of 12 months preceding the issuance of the complaint it sold products valued at more than $50,000 which were shipped directly outside the State of Texas. The Respondent concedes and it is found that it is engaged in commerce within the meaning of the Act. II. THE CHARGING UNION United Cement, Lime and Gypsum Workers International Union , AFL-CIO, is a labor organization admitting to membership employees of the Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Setting and major issues Only the Respondent's Midlothian, Texas, plant is here involved Following a Board-conducted election among employees at this plant on July 14, 1961, the Regional Director for the Sixteenth Region on July 24, 1961, certified that the Charging Union was the exclusive representative for collective-bargaining pur- poses of all employees in an appropriate unit consisting of: All production and maintenance employees at the Midlothian plant, including quarry and plant truckdrivers, transport truckdrivers, truck mechanics, packing and loading employees, the storeroom employee and the laboratory employees, but ex- cluding office clerical employees, professional employees, guards, foremen, storeroom supervisor, chief chemist and assistant chief chemist, and all other supervisors as defined by the Act. On August 28 a union representative wrote to counsel for the Respondent, en- closing a proposed contract and various other documents, and requesting that a date be set for negotiations. On September 6 counsel for the Respondent suggested Oc- tober 2 as the first meeting date. At the hearing the parties stipulated that negotiating meetings were thereafter held on October 2, 3, 12, 13, and 19; November 8, 9, and 10; December 4 and 5, 1961; January 2, March 2, and July 26, 1962. As to the alleged refusal to bargain, the complaint claims specific acts or conduct to be violative of the Act: (a) insisting upon reserving unilateral control over mandatory subjects of collective bargaining; (b) failing to provide negotiators willing or physically able to carry on bargaining negotiations with the frequency required by Section 8(d) of the Act; (c) refusing to negotiate in good faith matters relating to wages, hours and working conditions; and (d) unilaterally establishing certain wages and working conditions, on De- cember 5, 1961, during the course of negotiations. B. Facts and conclusions as to specific issues 1. "Insisting upon . . . unilateral control" If there is evidence in the record supporting this allegation of unlawful bargaining, the Trial Examiner has failed to find it and General Counsel has not cited such in his brief. Apparently General Counsel relies chiefly upon the Respondent's pro- posals as to provisions in a "Management Rights" clause, submitted to the Union in its counterproposal to the Union's proposed contract. This clause reads: Nothing in this agreement shall be deemed to limit or restrict the company in any way in the exercise of the customary functions of management, including the right to make such rules not inconsistent with the terms of this agreement relating to its operation as it shall deem advisable, and the right to hire, suspend, discharge or otherwise discipline an employee for violation of such rules or for other proper and just cause. TEXAS INDUSTRIES, INC. 529 The right to select and hire, to promote to a better position, to discharge, de- mote or discipline for cause, and to maintain discipline and efficiency of em- ployees and to determine the schedules of work is recognized by both union and company as the proper responsibility and prerogative of management to be held and exercised by the company in a fair and just manner and while it is agreed that an employee feeling himself to have been aggrieved by any decision of the company in respect to such matters, or the union in his behalf, shall have the right to have such decision reviewed by top management officials of the company under the grievance machinery hereinafter set forth, it is further agreed that the final decision of the company made by such top management officials shall not be further reviewable by arbitration. It appears to the Trial Examiner that the Supreme Court, in N.L.R.B v. American National Insurance Co., 343 U.S. 395, at 409, disposed of this issue when it said: we reject the Board's holding that bargaining for the management functions clause proposed by the respondent was, per se, an unfair labor practice. While the language of the management clause in the cited case is more succinct, in essence it is the same as the clause quoted above. The evidence establishes that the Respondent's representative gave explanation for proposing this provision, and at no time refused to negotiate on the subject. That it decided to, and on December 4 did, take the position that it would insist upon such a provision was plainly within its lawful right. in the same decision as quoted above the Supreme Court pointed out that: [Section 8(d) of the Act] contains the express provision that the obligation to bargain collectively does not compel either party to agree to a proposal or re- quire the making of a concession. Nor did the Respondent refuse to negotiate the subject after December 4 It was discussed fully on ianuary 2, 1962, and in May the Respondent offered to withdraw the second of the two paragraphs above quoted. in short, the Trial Examiner finds and concludes that the evidence fails to support the allegation of the complaint on this issue. 2. "Frequency" of negotiations The Trial Examiner finds no evidence in the record regarding the negotiators' willingness or physical capability to meet at a frequency prescribed by the Act. In the first place the Act itself provides no timetable for "reasonable" negotiating dates. In the second place it is observed that not until more than a month after its certifica- tion did the Union ask for negotiations. As noted above, there were 11 meetings held between October 2 and the date of the filing of the charge on January 29. Documentary evidence establishes that correspondence was exchanged between the parties endeavoring to set up meeting dates which would be mutually acceptable. The Trial Examiner discerns no evidence which expressly or by inference shows that the Respondent arbitrarily or to avoid meeting its obligations under the Act refused to meet or delayed meeting dates. In its brief the Respondent aptly cites C. W. Partee, d/b/a Partee Flooring Mill, 107 NLRB 1177, wherein this Trial Examiner was reversed by the Board. There, in the opinion of the Trial Examiner, the evidence as to "dilatory tactics" was far more impressive than exists in this case. In summation on this point, the Trial Examiner finds and concludes that the al- legation of the complaint as to this issue is not sustained by the evidence 3. Refusing to negotiate in good faith The complaint alleges that the Respondent refused to negotiate in good faith on "wages, rates of pay, holidays, call-in pay, insurance, pensions, job assignments, arbitration, grievance procedure, checkoff of Union dues, management rights, dis- charges, layoffs, promotions, plant rules, and other terms and conditions of em- ployment." Undisputed testimony establishes that each of the subjects quoted above was in fact "negotiated," some of them on numerous occasions. Both parties made counter- proposals and concessions 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD While it is true, as General Counsel urges, that the Respondent made few con- cessions on issues of economic value to employees, and it is clear that the union representatives failed in most respects to gain their bargaining objectives, it does not inevitably follow that such "tight" bargaining must be termed refusal to "negotiate . in good faith." Language of the Act prohibits such a conclusion. General Counsel, of course, is privileged to consider that the Respondent's bargain- ing was as he variously in his brief described it: "unyielding," "immovable," "mono- lithic," "empty," "unretractable," `Spartan," "surface," "shadow," "ostentatious," "difficult," "ridiculous," "inhumane," and "arbitrary." The Trial Examiner may not only marvel at this array of syllables but also approve his selection of them. Singly or in total, however, they fail to penetrate the barrier set up by Congress itself, in Sec- tion 8(d), when it said that "good faith" bargaining "does not compel either party to agree to a proposal or require the making of a concession." In this case there is no history-so far as the record shows-of the Employer's hostility toward any labor organization, or of its intent and resolve to deprive its employees of any of the rights guaranteed them in Section 7 of the Act. The area of conduct here involved is limited to the bargaining table-or in written documents relating to negotiations alone. It would appear, then, that such conduct must be weighed solely by the scales of Section 8(d). The Trial Examiner concludes, therefore, that General Counsel has failed to sus- tain, by a preponderance of evidence, this allegation of the complaint. 4. Unilateral action The complaint claims that in December 1961, during the course of negotiations, the Respondent "unilaterally" established certain working conditions, including "wages, holidays, vacations, call-in pay, insurance, pensions, layoffs, job assignments, seniority, arbitration and other conditions of employment." The Trial Examiner finds no evidence in the record as to any item of "unilateral" establishment of any working condition by the Respondent in December or there- after, nor does General Counsel's brief cite any such evidence. If, as Respondent's counsel suggests in his brief, General Counsel is relying upon evidence as to "final positions" taken by the Respondent about this time on certain matters which had been the subjects of negotiation at several past meetings, the allegation of the complaint must be found to be without merit. The undisputed evidence is to the effect that the Respondent voiced its "final position" on negotiating issues only after ascertaining from the Union what its "final position" was on these matters. The reaching of an "impasse," as far as the Trial Examiner is aware, has never been held by the Board to be an unfair labor practice, or to be a factor in determining good-faith bargaining. The language of the Supreme Court, in the above-cited American National Insur- ance Co. case, would appear to be dispositive of this issue: Thus it is now apparent from the statute itself that the Act does not en- courage a party to engage in fruitless marathon discussions at the expense of frank statement and support of position. In short, the Trial Examiner concludes and finds that evidence fails to sustain this allegation of the complaint. C. Conclusions Having found that evidence is insufficient to sustain any of the four specific allegations of the complaint relating to the claimed refusal to bargain, the Trial Ex- aminer finds that the Respondent has not violated Section 8(a)(1) and (5) of the Act.i RECOMMENDATION Upon the basis of the above findings of fact and conclusions of law, the Trial Examiner recommends that the complaint be dismissed in its entirety. i In his brief General Counsel appears to urge that the Trial Examiner find as an unfair labor practice the Respondent 's claimed refusal to furnish the Union with certain Informa- tion during the course of negotiations. Since no allegation on this point is in the com- plaint, it is the Trial Examiner's opinion that it would be Improper to determine the merits of this belated claim.