Taylor Foundry Co.

TAYLOR FOUNDRY COMPANY 765 Lloyd J. Taylor, d/b/a Taylor Foundry Company and Lodge 1476, International Association of Machinists, AFL-CIO. Case No. 16-CA-1599. March 26, 1963 DECISION AND ORDER On November 19, 1962, Trial Examiner Jerry B. Stone 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. He further found that the Respondent had not en- gaged in certain other unfair labor practices alleged in the amended complaint and recommended that such allegations be dismissed. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermdeiate Report and supporting briefs. 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 Intermedi- ate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner to the extent consistent herewith. The amended complaint alleged that the Respondent refused to bargain collectively with the Union as the exclusive representative of its production and maintenance employees in violation of Section 8 (a) (1) and (5) by (1) failing to provide negotiators who were willing or physically able to carry on negotiations as required by the Act; (2) unilaterally changing the workweek by eliminating production work on Saturdays; and (3) failing to bargain in good faith in certain other specified respects. The Trial Examiner found that the Respondent had provided will- ing and physically able negotiators and had not utilized the scheduling of negotiation meetings to impede bargaining. He found that the General Counsel had also failed to establish that Respondent had uni- laterally changed its workweek. The Trial Examiner further found that, except as indicated hereinafter, the Respondent had negotiated in good faith with respect to other specific matters listed in the complaint. However, he concluded that Respondent's introduction, during the early stages of negotiations, of certain proposals relating to subcon- tracting and seniority, after he had submitted his original contract proposals, revealed Respondent's "bad faith intent," and the Trial Examiner found further evidence of such bad faith in the Respondent's ' 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]. 141 NLRB No. 62. 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refusal to furnish certain requested financial information in support of his purported inability to pay any wage increase. While the matter is not free from doubt, the preponderance of the evidence does not warrant the conclusion that the Respondent bar- gained in bad faith as to contract matters. Nor do we agree with the Trial Examiner that the Respondent's introduction of the sub- contracting and seniority clauses indicated bad-faith bargaining. The Trial Examiner found that the mere introduction of the se- niority and subcontracting clauses was not a per se unlawful refusal to bargain. But, he was of the opinion that bad faith was revealed by Respondent's introducing the clauses at a time when the parties had not yet reached agreement on virtually any contract proposals. Ac- cording to the Trial Examiner, by submitting clauses which, in the Trial Examiner's opinion, were calculated to be unacceptable to the Union, Respondent intended to broaden the areas of dispute and thus impede and delay bargaining. This is not a situation where, late in bargaining and after the parties have greatly narrowed their areas of disagreement, a provision is in- troduced to forestall agreement.2 It is not disputed that Respondent's mentioned proposals were proper subjects for collective bargaining. They were first orally introduced in the third bargaining session on August 19, 1961, and submitted in writing to the Union on August 21. Respondent denied at the time any intent to deprive the employees of their accustomed work and disclaimed any present intent to move his plant. The clauses were thoroughly discussed by the parties in at least 11 sessions. The Respondent set forth his reasons for desiring them, and we find nothing in the record to impugn these reasons. Modifi- cations and concessions were made in many areas and, although the Respondent's position remained relatively fixed regarding most of the major issues, he revised the subcontracting clause on November 8, 1961, in an effort to meet the Union's objections. While the two clauses may have been unacceptable to the Union, we are not convinced in the circumstances described above, and consider- ing Respondent's behavior during 20 bargaining sessions, that Re- spondent, by submitting the two clauses in question at the third bar- gaining session, sought to frustrate bargaining.3 However, we do agree with the Trial Examiner that the Respondent violated Section 8 (a) (5) and (1) of the Act by his refusing to furnish a financial statement or other revelant material in support of his claimed inability to pay any increased wages. Respondent contends that, in the course of negotiations, he never mentioned that he was unable to pay a wage increase ; he claims he was 2 Cf Vulcan Steed Tank Corporation, 106 NLRB 1278, 1279. s In our view of the case, there is no need to pass upon the "impasse" defense of Respondent. TAYLOR FOUNDRY COMPANY 767 merely asserting that he could not afford an increase in labor costs and remain in a competitive position. While it is readily understandable that an increase in operating costs may place an employer in a disad- vantageous position with respect to his competitors and that a mere assertion thereof is not necessarily a claim of inability to pay calling for some substantiating proof under N.L.R.B. v. Truitt Mfg. Co.,' we are satisfied that Respondent went beyond asserting such a position. Respondent's situation, as testified to by his son, was that "if we so increased our labor costs that we would lose a margin of profit that we have and we can't exist." [Emphasis supplied.] In our opinion, this assertion to the effect that Respondent would have to go out of business if he gave a wage increase amounts to a clear claim of financial inabil- ity in the premises. Admitting the possibility that its wage demand might be excessive, the Union advised Respondent that the Union would have to have some information from the Respondent in support of his claim that he could not afford to pay any wage increase if the Union were to reduce its wage demand. This information the Respondent refused to furnish. All he offered was information comparing his own wage scales or prices with his competitors, but this, without more, was scarcely sufficient to satisfy the Union's request for evidence bearing on the Respondent's asserted inability "to exist" if he granted a wage increase. We find that, by refusing to furnish the requested information on and after January 9, 1962, the Respondent failed to bargain in good faith and thus he violated Section 8 (a) (5) and (1) of the Act.' ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Lloyd J. Taylor, d/b/a Taylor Foundry Company, Wichita Falls, Texas, his officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Lodge 1476, International Association of Machinists, AFL-CIO, by failing, upon request, to furnish said Union with such information and other relevant material in support of Respondent's claim of inability to pay any wage in- crease as will enable the Union to discharge its functions as the statutory representative of Respondent's employees. (b) In any like or related manner interfering with the efforts of said Union to bargain collectively on behalf of the employees in the following appropriate bargaining unit : All production and mainte- nance employees of the Respondent at his Wichita Falls, Texas, plant, 351 US. 149. s N L.R B. v. Truitt Mfg. Co, supra; B. L Montague Company , 116 NLRB 554 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD excluding office clerical employees, professional employees, guards, watchmen, all other employees, and supervisors as defined in the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, furnish said Union with such information and other relevant material in support of Respondent's claim of inability to pay any wage increase as will enable the Union to discharge its functions as the statutory representative of Respondent's employees. (b) Post at his premises, in Wichita Falls, Texas, copies of the attached notice marked "Appendix." 6 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by a representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by him for 60 consecutive days thereafter, in conspicuous places, including all places where notices to his employees are cus- tomarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Sixteenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT Is FURTHER ORDERED that the amended complaint be, and it hereby is, dismissed insofar as it alleges that the Respondent failed to bargain in good faith in violation of Section 8(a) (5) and (1) of the Act in all respects except as hereinabove found. a In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT refuse to bargain collectively with Lodge 1476, International Association of Machinists, AFL-CIO, by failing to furnish said Union with such information and other relevant material as will enable the Union to discharge its function as the statutory representative of our employees in the appropriate unit described below. WE WILL NOT in any like or related manner interfere with the efforts of Lodge 1476, International Association of Machinists, AFL-CIO, to bargain collectively on behalf of the employees in the appropriate unit. TAYLOR FOUNDRY COMPANY 769 The bargaining unit is : All production and maintenance employees employed at our Wichita Falls, Texas , plant, excluding office clerical em- ployees, professional employees, guards, watchmen, all other employees, and supervisors as defined in the Act. WE WILL, upon request, furnish Lodge 1476, International Association of Machinists , AFL-CIO, with such information and other relevant material in support of our claim of inability to pay any wage increase. LLOYD J. TAYLOR, D/B/A TAYLOR FOUNDRY 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, 6th 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. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge filed on January 22, 1962 , by Lodge 1476, International Association of Machinists, AFL-CIO, herein called the Union, the General Counsel of the Na- tional Labor Relations Board, by the Regional Director for the Sixteenth Region (Fort Worth, Texas ), issued his complaint and an amendment thereto on April 20 and May 18, 1962, respectively , against Lloyd J. Taylor, d/b/a Taylor Foundry Com- pany, herein called the Respondent . Thereafter the Union filed an amended charge on May 22, 1962, similarly an amendment to the complaint was issued on May 22, 1962, and the complaint was further amended at the hearing . In substance the com- plaint, and amendments thereto, alleged that Respondent had engaged in and was en- gaging in conduct proscribed by Section 8(a)(1) and (5) of the National Labor Relations Act, herein called the Act, and that such conduct affected and was affecting commerce as set forth in Section 2(6) and (7) of the Act . Respondent's answer admits many of the facts pleaded in the complaint , but denies the commission of any unfair labor practices. Pursuant to appropriate notice , a hearing was held before Trial Examiner Jerry B. Stone at Wichita Falls, Texas, on May 28, 29, 30 , and 31 and June 12, 13, 14, 15, 18, 19, and 20, 1962. All parties were represented at and participated in the hearing and were afforded the right to present evidence , to examine and cross-examine witnesses, to offer oral arguments , and to file briefs. Briefs from the General Counsel and Re- spondent have been received and considered. Upon the entire record in this case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Lloyd J. Taylor, an individual, is and has been at all times material to this proceed- ing, an individual proprietor doing business under the trade name and style of Lloyd J. Taylor, d/b/a Taylor Foundry Company. Respondent maintains its principal office and place of business in the city of Wichita Falls, Texas, and is engaged there in the manufacture, sales, and distribution of cast- ings and related products. 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent during a 12-month period ending on December 31, 1961, manu- factured, sold, and shipped products valued in excess of $50,000 directly to points and places in States of the United States, other than the State of Texas. I find that Re- spondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction in this proceeding. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and it is found that Lodge 1476, Inter- national Association of Machinists, AFL-CIO, is a labor organization within the meaning of the Act. M. THE UNFAIR LABOR PRACTICES Introduction The central issue is whether the Respondent in its negotiations with the Union per- formed the obligation Section 8(d) imposes mutually upon employers and employee representatives "to meet at reasonable times and confer in good faith with respect to wages, hours, and other conditions of employment, or the negotiation of an agree- 11 ment, or any question arising thereunder ... . The Certification and the Appropriate Unit Pursuant to a stipulation for consent election executed by the Respondent and the Union on June 14, 1961, an election was held under the auspices of the National Labor Relations Board on July 14, 1961, where a majority of the employees, in a unit stipu- lated by the parties to be appropriate consisting of "all production and maintenance employees of Respondent employed at its Wichita Falls, Texas, plant, exclusive of all other employees, office clerical, professional, guards, watchmen, and all supervisors as defined in the Act," selected the Union as its representative for the purposes of collective bargaining with Respondent, and the Union was so certified as the exclusive bargaining representative of the Respondent's employees in the appropriate unit on July 24, 1961. The complaint alleges and the answer admits the foregoing. I find that at all times mentioned herein, the Union has been and is the exclusive representa- tive of all the employees in the aforesaid unit, and that such a unit is an appropriate unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment within the meaning of Section 9(a) of the Act. The Bargaining Sessions and Proposals The parties met on July 25 and discussed the negotiation of certain rules for em- ployees proposed by the Respondent. Thereafter there was relatively little discussion of employee rules during the bargaining period August 5, 1961, to March 10, 1962.1 The Union opposed the negotiation of rules until the parties had negotiated a contract with a grievance procedure. The Respondent contended that it needed the "Rules" because of the advent of the Union and because the parties might fail to agree on a contract. Otis Nelson, Respondent's attorney, assured the Union that Respondent would negotiate on any grievance arising from the rules. As previously stated except for one or two occasions there were virtually no negotiations on rules by the parties. The parties met for some 22 bargaining sessions, usually in lengths of time between 2 and 21/z hours, and discussed the initial proposals, new proposals, concessions, and agreements.2 The Respondent's proposals, initially and with such additions, modifica- I The facts are largely undisputed and based upon a composite of the credited testimony of Luna, Keith Nelson, Lloyd Taylor, Jr, Otis Nelson, Sr, and the various exhibits All credibility findings herein as made are based in part upon the demeanor of the witnesses Involved. Unless otherwise indicated, references to Nelson or Attorney Nelson are refer- ences to Otis Nelson, Respondent's attorney 7I have set forth in the appendixes In detail the Respondent's and the Union's pro- posals, and their agreement or disagreement thereto. Emphasis has been supplied to re- flect basic differences between the parties' proposals. Appendix A-The Union's initial proposal of July 29, 1961, and certain subsequent proposals and comments thereto Appendix B-The Respondent's initial proposal of August 3, 1961, and certain com- ments thereto. Appendix C-The Respondent's proposal of November 8, 1961, and certain other pro- posals subsequent to its August 3 proposal, and subsequent to November 8, with com- ments thereto. TAYLOR FOUNDRY COMPANY 771 tions, and agreements as were made thereafter, allowed Respondent much flexibility in the scheduling of hours and shifts, disposal of grievances, application of seniority principles, and as to related matter, offered substantially only the current benefits, reduced the Union's rights acquired by virtue of being the employees' exclusive rep- resentative by the limitation of negotiations, and offered certain minor benefits in the nature of assurances and accommodations to the Union and the employees, such as equal distribution of overtime, use of bulletin board space, etc. The Union's initial proposal included provisions to fix definite schedules of worktime, secure increased fringe benefits, provide for arbitration on grievances, provide for dues checkoff by the Respondent, and provide various assurances and benefits of an accommodation nature. The Respondent's proposal, made subsequent to receipt of the Union's pro- posal, did not contain counterproposals as to all of the Union's proposals. Specifi- cally, it did not include proposals relating to dues deductions or arbitration. While having some proposals identical to the Union's proposals, the Respondent's proposals differed in both major and minor details. During the bargaining sessions the Union's position revealed that it would compromise on its provisions relating to the scheduling of hours, dues checkoff and arbitration provisions, and would take less in the nature of assurances and accommodations. In general the Respondent's expressed positions in support of its proposals were that it needed to have flexibility in the scheduling of work hours and workweeks because of operational necessity, that it could only offer current fringe benefits because it could not afford to jeopardize its competitive position with its competitors, that it would not agree to make dues deductions because it did not make other deductions for its employees, that it could not agree to arbitration because it did not like current decisional law, and that it needed certain management provisions. The Union contended in support of some of its positions that the employees needed provisions providing fixed scheduling of work hours so as to avoid employee abuse by the Employer, that the Employer could afford increased benefits more in line with unionized companies, that arbitration would provide a workable grievance procedure and eliminate some necessity of strikes. For convenience in understanding, the negotiations may be said to have occurred during three periods of time. The first period covers the four sessions (approximately a total of 91/a hours in time) and correspondence beginning on August 5 and con- tinuing to September 2, 1961. The second period covers the 13 sessions (approxi- mately a total of 30 hours in time) and correspondence beginning on September 2 and continuing to December 9, 1961. And the third period covers the five sessions (approximately a total of 111/2 hours in time) and correspondence beginning on December 9, 1961, and continuing through March 10, 1962. Bargaining Period-August 5 to September 2, 1961 Thus the parties commenced discussion of their proposals on August 5. They contended and expressed reasons in support of their proposals. Only insubstantial agreement was reached as to the proposals at either the August 5, 12, or 19 sessions. Proposals relating to wages, classifications, and apprentice programs were not in- troduced until around the September 16 session. Although the parties discussed and again discussed their various proposals, the lack of progress was apparent. As Respondent's Attorney Otis Nelson related at the August 12 meeting, "the parties did not seem to be getting along too good with the negotiation." Thus, the Union reiterated its claim for dues checkoff provision, for arbitration, increased holiday and vacation benefits, and the Respondent opposed such claim. Contrary to the General Counsel's contention, the evidence reveals, in my opinion, that Respondent adequately set forth his position and reasons as to opposing arbitration because he was concerned about court decisions, and as to opposing dues checkoff provisions because he did not make deductions for other matters including charitable drives. Except as indicated herein, I would similarly find other positions to be legitimate. The Respondent reiterated its desires for clauses granting it the right to schedule more or less hours, to change established starting times by negotiation rather than by mutual agreement, and the Union opposed such clauses. As to areas of major interest the Union indicated tentative agreement to certain of the Respondent's proposals relating to its management rights and the Union's rights as a bargaining representative. The Union thus indicated agreement to the Respondent's right to close the plant down if the word "permanent" were added to describe the closing of the plant. They were other areas of agreement concerning proposals which were basically similar. 708-006-64-vol. 141-50 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the August 5 sessions the parties broached the subject of subcontracting when Luna objected to part of the Respondent's rights-of-management clause setting forth that the contract did not relate to certain work of independent contractors. Luna stated that this clause would allow the Respondent to subcontract away the work of the employees in the unit. Nelson stated that the Respondent did not intend to sub- contract away the work of the employees in the unit. The meeting on August 19 was highlighted by the Respondent's orally proposing a subcontracting clause with virtually no limitation upon the Respondent, and a clause providing that seniority would not be transferable if the plant were moved. The Respondent also modified its right to require employees to work overtime. Nelson repeated his original position as to subcontracting and stated as to Luna's objection to the nontransferability of seniority that the Respondent did not intend to move the plant. In general the parties bargaining positions continued in like manner until September 2. The General Counsel would contend that bad faith is revealed by certain state- ments allegedly made by Lloyd Taylor, Sr., to the effect that he only did what the law required, that as to certain proposals "that was the way it had been in the past and that was the way it was going to continue," and by certain statements allegedly made by Otis Nelson to the effect that the Respondent would have to negotiate but "did not have to agree to a damn thing." I do not find such statements made as testified to by Luna. I credit Keith Nelson's and Lloyd Taylor, Jr.'s, denial of the same and am convinced that Luna mistakenly characterized what appeared to him to be Respondent's position. Bargaining Period-September 2 to December 9, 1961 As previously described, the second bargaining period commenced on September 2 and continued to December 9. The parties were aided by Federal mediators during this period of time. Although agreement was reached on various miscellaneous provisions, and although Luna, business representative of the Union, indicated that he would drop the dues checkoff provision in order to obtain arbitration, the basic issues as to fringe benefits, dues checkoff provisions, arbitration, subcontracting, and wage (introduced at the September 16 session) continued unresolved. Prior to the August 5 session Luna had indicated to Respondent's Attorney Otis Nelson that the Union's wage demands would be that of the rates at the Wichita Falls and Foundry Machine Company, Inc. Luna repeated this demand on Septem- ber 16 at the bargaining session. Thereafter on November 8 the Respondent offered as its wage proposal the current wages. The Respondent's position as to wages was similar to its position on cost items. There was also discussion of competitive rates with the Respondent setting forth its contention as to its competitors and their rates, and Luna set forth his contention as to Respondent's competitors and their rates. Nelson contended that the foundry referred to by Luna was a "captive" foundry (part of a large national organization) and not a competitor. The Respondent's position on wages was set forth by Otis Nelson on November 8 when he stated that the Respondent proposed to leave wages as they were, that Respondent did not propose to give any wage increases because the Respondent could not afford to increase their labor costs and wages were cost items, and if they did they would jeopardize their competitive position with the Dallas Foundry Company. It is also revealed by Respondent's general position on labor costs as summarized by Lloyd Taylor, Jr., who testified, "Well, it being such a prohibitive item-the other foundries are not having to do it, and we have got to maintain a competitive position . . We stated that throughout the bargaining sessions, that if we so increased our labor costs that we would lose a margin of profit that we have and we can't exist." However, Nelson also stated to Luna that the Respondent was not pleading "poverty." After the injection of the wage issue the parties continued to discuss the unresolved issues, including as major items dues deduction, arbitration, and subcontracting. In November Luna offered to withdraw his dues deduction proposal if he could obtain arbitration. However, this did not draw a responsive concession from the Respondent, and the positions continued to be reiterated through December 9, 1961. During this period of time much of the bargaining positions and changes were basically similar to that which occurred with connection to Respondent's right-to- require-overtime and right-to-close-down clauses. Thus the Respondent initially proposed a clause providing that the Respondent could require an employee to work overtime excepting for certain reasons (illness, etc.), later modified the clause to allow "other employees" of similar ability to "volunteer," and later provided that the Re- spondent would "solicit such volunteers." TAYLOR FOUNDRY COMPANY 773 Similarly the Respondent originally proposed that it could close the plant down if it decided that continued operations would endanger the health of the owner. On August 5 Luna indicated agreement to the provision if Respondent described the closing down as being "permanent." The clause was discussed again in September, and Luna again expressed the position described above. The parties agreed to the provision as modified, but Nelson's letter of September 19, 1961, setting forth the clause agreed to omit the word "permanent." The clause was again discussed and the word "permanent" was added and the issue was removed. Although Luna testified that he complained on October 7 about the omission of the word "permanent" from the clause, Respondent's October 7 proposal contained the word "permanent" in the clause. It is obvious that his testimony was with reference to the Septem- ber 23d sessions. There was also discussion of "payday" during this period. The Respondent pro- posed originally a normal workweek of Monday through Friday, and the Union proposed a Monday through Friday workweek. On August 10 the parties agreed to a workweek ending on Thursday and with Friday as the payday. Thereafter Re- spondent raised an issue as to Saturday overtime in connection with the workweek. The Union then requested a Monday through Friday workweek and offered to agree to the withholding of a week's wages. The Respondent contended that it was having a problem with employees not reporting for work on Saturday when requested to do so and proposed on November 17 a Saturday payday if the employees worked on Saturday. During this period of time agreement was reached as to many sentences and parts of the various proposals, including July 4th holiday pay even if the holiday occurred during the vacation period, to 2 hours reporting and call-in pay, to the Respondent's right to close the plant "permanently," to seniority provisions (excepting as to nontransferability), to an apprentice program (except as to rates of pay), and the Respondent withdrew its proposed reference to supervisors being hourly paid. Bargaining Period-December 9, 1961, Through March 10, 1962 The third bargaining period commenced on December 9, 1961, and continued through March 10, 1962. As indicated at the prior bargaining sessions, relatively little change in positions had developed. The parties discussed the unresolved issues with Otis Nelson, Respondent's attorney, indicating on several occasions that the parties had gone over and over the same items without reaching agreement. On January 6, Nelson told Luna that the parties had reached an impasse and that the Respondent would not meet with the Union unless it changed its position on the items in dispute such as wages, arbitration, and fringe benefits.3 Luna, thereafter, on January 9, by letter, requested a meeting and the opportunity to check the Respondent's books and financial records so as to determine to what extent the Union should reduce its wage offer Nelson on January 12 replied to Luna by letter, advising that he declined to recommend to Respondent the making of such records available. Thereafter Luna reduced his proposed wage demands, and the parties met on February 17 and March 10. The parties discussed and agreed to certain additions to the grievance procedure 4 The sessions concluded with Respondent offering to sign, as an agreement, substantially its proposals, and with Luna stating that if "money" were added, that he would consider it.s The March 10 session concluded with many unresolved issues. Miscellaneous Contentions By the very nature of the trial of an issue of good- or bad-faith intent-revealed over a period of time-many remote and detailed facts may be literally relevant but materially insubstantial. I have considered all of the contentions of the General Counsel and the Respondent, and except as hereinafter indicated find the contentions without merit. 9I find no merit to Respondent's contention of an "impasse" defense The evidence, as a whole, reveals Respondent's bad-faith intent as to his entire course of bargaining. ' Respondent agreed to add an express right-to-strike clause, and to the use of a con- ciliator However, it is noted, there were no provisions binding the Respondent to recom- mendations from the conciliator The Respondent also agreed to withdraw its proposed right to establish a longer workweek. 6 Luna's credited testimony reveals that Nelson stated at the March 10, 1902, meeting that he would contact him for a further meeting. 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Before proceeding to an analysis of facts which reveal, in my opinion, the true intent of the parties, it may be summarized that the following contentions were without merit for the reasons set forth. In general I have found without merit various General Counsel's contentions or possible contentions for the following reasons: (1) The Respondent proposed "un- authorized strike" and "unauthorized absence" clauses and not the "no strike" type clause as contended by the General Counsel; (2) the General Counsel failed to establish that Attorney Otis Nelson had determined his other clients' or Respondent's positions on arbitration, and thus has failed to establish that Nelson's different posi- tion on arbitration is revealing of bad faith; (3) I see nothing in the evidence relating to Respondent's attempt to negotiate on "Rules" and the Union's attempt to desist on such negotiation until a grievance procedure had been established to support an inference of bad faith on Respondent's part. I do not credit Luna's testimony to the effect that Nelson asserted that the rules were already in effect. Luna's testimony as to Nelson's alleged statement that the "Rules" were already in effect is contra- dictory to Nelson's letter of July 25, 1961, to the effect that many of the rules had been in effect; (4) the "payday" issue was intertwined with the problem of workweek and overtime. In view of the Union's several changed positions on workweek in connection with its overtime position, and in view of the continued problem of employees not reporting for work on Saturday, I do not see that the Respondent's modification of its "payday" offer reveals a bad-faith intent; (5) in view of the contentions of the parties as to many apparent minor issues, and my evaluation that Luna's testimony is unreliable as to the time spent on such issue, I do not find the General Counsel's contention that the "time" spent on minor issues reveals Respond- ent's bad-faith intent; (6) the evidence does not reveal that the "omission without explanation" of certain Respondent's proposals was done to confuse the Union; (7) the Respondent's opposition to "outsiders in his plant" although revealing, per- haps, opposition to the Union, does not reveal an intent to bargain in bad faith; (8) the Respondent's assertion that he did not collect dues for other organizations (Red Cross and United Givers Fund) does not reveal an improper respect for collective bargaining; (9) the Respondent's modification of certain proposals relating to ap- prentice and helpers' pay, and to the time for filing of grievances, does not inde- pendently reveal a bad-faith intent. Such proposals, in essence, broadened the area of dispute, but appear to me to have a reasonable connection to a proper refine- ment of position; (10) Respondent's Attorney Otis Nelson's remarks complaining about the filing of charges by the Union appear to me to be normal remarks made in anger and not remarks which indicate his bad faith; and (11) Respondent Owner Lloyd Taylor, Sr.'s remarks criticizing Luna for his remark "cheat" made with reference to "holiday pay" being omitted if the holiday occurred during the vacation period seem also to me to be mere remarks made in anger and not an indication of bad faith; (12) Lloyd Taylor, Jr.'s remarks made on February 17 to Luna, al- though disparaging perhaps, appear to me also to be remarks made in anger, and not revealing of a bad-faith intent; (13) the information related at the bargaining session by Lloyd Taylor, Jr., concerning wage rates of other foundries was based upon his understanding and thus does not reveal evidence of bad faith (similarly, Luna's reference to other wage rates was based upon his understanding); and (14) although Nelson on March 10 stated that he would contact Luna concerning the next meeting and did not do so I do not find that the failure to reschedule an addi- tional meeting was part of a plan to avoid bargaining, under the circumstances. The evidence reveals other engagements by both parties and the pendency of the unfair labor practice charges. I similarly find without merit certain of Respondent's contentions or possible contentions for the following reasons: (1) The Union's overall bargaining positions reveals that it was willing to sign a contract not including dues checkoff provisions, or arbitrations; thus, contrary to Respondent, I do not find alleged statements by Luna to the effect that he was insisting on a contract having provisions relating to dues deduction, arbitration, and wage increases, as revealing of the Union's bad faith; (2) I do not find that Luna's continued objection to the Respondent's proposal relating to "holidays" (see Appendix C-article IV, D), after the Respondent had agreed not to lay off an employee on the day before a holiday, as being revealing of Luna's bad faith. Such concession may have met part of Luna's objection, but in view of his total position on "holidays" and on the grievance procedure, it is from his objection that he considered the "potential" of firing as still being present, and that the concession did not meet all of his objections; (3) I do not find that Luna's use of the word "cheat" in characterizing the Respondent's policy of not paying holiday pay if it occurred during the vacation period, as being evidence of bad faith on Luna's part. There is nothing in the evidence to persuade that Luna made the remark other than in an honest attempt to describe the situation as he saw it. TAYLOR FOUNDRY COMPANY 775 Nor do I find that the General Counsel has established proof of a violation as to Respondent's alleged failure to furnish willing or able negotiators as to an alleged -illegally altered workweek. Alleged Failure To Furnish Willing or Able Negotiators The General Counsel contended but failed to adduce sufficient evidence to prove that the Respondent violated Section 8(a)(5) and (1) of the Act because it failed to furnish negotiators who were physically able or willing to negotiate for the time or frequency required by Section 8(d) of the Act, and because Respondent altered the workweek without consultation with the Union. As to evidence pertaining to the providing of negotiators , the General Counsel's -evidence as to limitation on Respondent's negotiators 6 because of their physical condition reveals ( 1) a limitation on Lloyd Taylor, Sr., to undertake negotiations only when he is well rested, and to limit negotiations to not more than 2 hours at any one time, and not to negotiate at night after working during the day ; and (2) a limitation on Otis Nelson to negotiate from 9 a.m. to 12 noon and from 1 to 5 p.m., and not to negotiate at night after working during the day. On August 5, 1962, Nelson and Lloyd Taylor , Sr., participated in two bargaining sessions (9:30 a.m . to 12 noon and 2 to 4 p .m.). Attorneys Otis Nelson and Lloyd Taylor, Jr., attended all sessions. Keith Nelson attended all excepting the September 16 session, and Lloyd Taylor, Sr., attended all sessions through October 7 and ceased attending thereafter except for a brief appearance on February 17, 1962. Applying such limitations as established , and absent the limitation to days other than the workweek created by the problems of the parties , the foregoing does not establish that such physical limitations, at any time, would have limited negotiations to less than 24 hours per week . There are no precise standards but I do not believe nor find that negotiations for 24 hours per week would fail to comply with Section 8(a) (1) and (5) and 8(d) of the Act. The evidence is clear that Respondent offered to meet during the workweek if the Union changed its committee so as to leave only one man in the classification on the committee , or if the shift times were changed with an earlier starting time (5:30 a.m.). The Union would not agree to these proposals. Luna credibly testified that he suggested, however, a rotation of the shifts. The reasons expressed by both parties as to their refusal to make the necessary accommodations in this matter appear sincere. The Respondent contended at the hearing that it could not operate properly with two moulders out of eight absent from work . I therefore conclude that the General Counsel has failed to prove his allegations as to Respondent's failure to provide negotiators who were physically able or willing to negotiate for the time and frequency required by Section 8(a)(5) and 8 (d) of the Act. The Contended Improper Scheduling of Meetings Nor am I persuaded that the evidence relating to Respondent's actions in the sched- uling of meetings reveals that Respondent intentionally utilized such scheduling as an illegal bargaining technique . As a result of the various problems of the parties relat- ing to their physical conditions, the Respondent's need of the union committee for work, and the fact that neither party accommodated the other 's request to solve the problem relating to the union committeemen working, the parties agreed on Saturday meetings. Luna in early August made a suggestion of meeting at any reasonable time, including Sundays. No other reference was made to Sunday meetings. Luna also suggested night sessions , but after Nelson informed him that the doctor did not desire that he and Lloyd Taylor , Sr., negotiate at night , Luna did not pursue the ques- tion of night sessions until October . The first two sessions were on August 5, 1961 (9:30 a.m . to 12 noon , 2 to 4 p.m.). Thereafter the parties agreed and met on August 12 (9:30 a.m. to 12 noon) and August 19 (9:30 to 11:45 a.m.). No meeting was scheduled on August 26 because Respondent's Attorney Otis Nelson had a legal engagement out of town. The parties again agreed to and met on September 2 (9:30 a.m. to 12 noon), September 9 (9:30 a.m. to 12 noon ). September 16 (9:30 to 11 : 45 a.m.), and September 23 (9:30 a.m. to 12 noon ). The evidence does not reveal why the parties did not meet on September 30, and the parties next met by agreement on October 7 (9:30 a.m . to 12 noon ). Luna was unable to explain why the parties did not meet on October 14. The apparent reason as revealed by other evidence was that the parties were engaged in separate conferences with Federal 9 Respondent's negotiators were Attorneys Otis Nelson , Sr , Keith Nelson , Lloyd Taylor, Sr., and Lloyd Taylor, Jr 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mediators during that period of time. The parties next met by agreement on October 21 (9:30 a.m. to 12 noon). As I see the foregoing, and considering Luna's initial desire to negotiate on week- days and not on Saturday, the lack of evidence of Luna's further specific request as to specific dates, the lack of evidence to reveal that Respondent would not have agreed to additional Saturday afternoon sessions, and Luna's apparent lack of real opposition to the meetings as scheduled, the scheduling of the foregoing meetings does not reveal a bad-faith intent on the part of the Respondent. It could hardly be said that the canceling of one Saturday 's meeting because of other legal engage- ments of Respondent's attorney constitutes an attempt to use the scheduling of meet ings as part of a plan to defeat bargaining. Nelson, although against his doctor's prior orders, agreed to meet for additional night sessions. The next agreed meeting was on October 25 (9:30 a.m. to 12 noon). Luna again complained about the spacing and length of meetings , asking however for additional night sessions in lieu of the Saturday sessions . Thus, his main interest as revealed by his repetition of his desire to negotiate during the workweek and not on Saturday, and his failure to seek additional Saturday meetings , appears to have been to meet more often. Nelson replied by letter, suggesting two meetings on Sat- urday and one night session, setting forth that Lloyd Taylor, Jr., because of his father's health, could only agree to this amount of time. The next meetings were held on October 28 (9:30 a.m. to 12 noon, 2 to 4 p.m.), November 1 (7 to 9 p.m.), November 4 (9:30 a.m. to 12 noon), and November 8 (7 to 9 p.m.). The parties then agreed to a meeting on November 18, but it was canceled at the last moment at the Union's request because of the illness of a union committeeman. On November 25 the par- ties again met from 9.30 to 11:30 a.m. The evidence does not reveal why the parties did not meet on December 2, but the parties again met on December 9 (9:30 a m. to 12 noon). Thus, I see nothing to reveal that Respondent utilized the scheduling of meetings between October 21 and December 9 as a means of defeating collective bargaining. At the meeting on December 9, Keith Nelson indicated a desire not to meet on December 16 because of a scheduled high school football game of local interest. Luna did not oppose this delay. Events concerned with the football game also con- stituted the attributed reason for failure to meet on December 23. There is no evidence of a request for a specific meeting date in December otherwise. The ar- rangements for meetings appear to have drifted with the parties next meeting on January 6, 1962 (9:30 to 11:45 a.m.). At this meeting Nelson, Respondent's attorney, contended that the parties had reached an impasse on wages, dues check- off provisions, and arbitration , and refused to meet further until the positions were changed. On January 9 Luna requested financial data for use in determining a possible new wage demand on January 12. Nelson declined to recommend that Respondent furnish such data and indicated that if Luna's position changed, that he (Nelson) was engaged in trial of a case and that he could not meet until the latter part of the week ending on January 27. On January 19 Nelson advised that he would be available for the week of January 27. On January 26 Luna requested a new meet- ing date (unspecified) and stated that he would reduce his wage demands. On Janu- ary 27 Nelson advised that he would be out of town until January 31 or February 1 and that he would communicate with Luna about a new meeting . On February 2 Luna and Nelson discussed a new meeting with Nelson stating that the Respondent could not meet on February 3 because Lloyd Taylor, Jr., would be out of town on business. The parties agreed to a February 10 meeting, but the latter was canceled because of a personal problem of an emergency nature affecting Nelson. The parties met for two sessions February 17 (9:30 a.m . to 12 noon and 1 : 30 to 3:45 p m.). No meetings were scheduled on February 24 and March 3 because of legal engage- ments of Attorney Nelson. The last meeting was scheduled and held on March 10 (9:15 to 11 : 15 a.m.). Although the foregoing evidence raises a suspicion, I am not persuaded that the Respondent utilized the scheduling of the meetings as an illegal bargaining technique. Thus, the Respondent's reason for not desiring to meet on December 16 and 23 ap- pears genuine. The delay between December 9 to January 6 is as much attributable to Luna's agreement thereto and to his failure to ask for specific bargaining days. Under the circumstances, the time period covering the Christmas season and New Year period , I see no evidence that this delay was part of an illegal bargaining technique. As to the delay between January 6 to February 17, although Respondent's alleged reason as to impasse is intertwined with its overall bad -faith position, I do not see it as evidence that it was utilizing the scheduling of meetings as an illegal method As to the other delays caused by Nelson's and Lloyd Taylor, Jr.'s business engagements , the Respondent 's reasons appear genuine . I would particularly note that the General Counsel's contention pertaining to the cancellation of the February TAYLOR FOUNDRY COMPANY 777 10 meeting is without merit. The reasons set forth pertaining to Nelson's personal problems are so clear and of such a personal nature that I deem it unnecessary to specifically mention them in this report. As a whole, I am convinced that the evidence does not reveal that Respondent utilized the scheduling of the meetings as part of an illegal bargaining technique. The Alleged Altered Workweek The General Counsel alleges that the Respondent unilaterally changed the work- week then in effect at Respondent's plant by eliminating production work on Satur- day, August 5, 1961. The evidence reveals that prior to August 5 the Respondent had a workweek commencing on Saturday and ending on Friday, and that for a period of time the Respondent had operated normally on Saturday. On August 3, the Respondent posted a notice setting forth that the plant would not work on Saturday, August 5, 1961. On August 10, the Respondent posted a notice which set forth that there would be no production work on Saturday until further notice. On the same date the workweek was changed by agreement so as to end on Thursday. The General Counsel and Respondent stipulated that Respondent had worked on Saturday when it had work available and had not worked on Saturday when work was not available. Lloyd Taylor, Jr., credibly testified that the Respondent had not worked on August 5 and thereafter because of insufficient orders to provide work. Saturday work, or lack thereof, continued on the same basis as prior to August 5. I therefore find and conclude that the General Counsel has failed to establish that Re- spondent unilaterally changed its workweek by eliminating production work on Saturday. Concluding Analysis The evidence reveals that at the outset of the bargaining the Union had indicated agreement to Respondent's proposals in two significant areas of Respondent's intent. Thus the Union indicated agreement to Respondent's right to schedule more or less hours per day or week and to Respondent's right to close the plant down if the word "permanent" were added to describe the closing. The Respondent's concessions as were made thereafter were made after much discussion even as to the minor issues. The record as a whole reveals that the Respondent placed great value on all aspects of its proposals both of clear major interest and otherwise. The Union's conduct reveals that it considered arbitration, dues deduction, increased wages, and fringe benefits of major interest. During the bargaining the Union revealed that it would concede on areas of major interest to Respondent at the outset. When such con- cession did not draw counterconcession of similar status, the bargaining sessions involved repeat discussions and positions. After the Federal mediators became involved, the parties agreed to many sentences and to seniority provisions and related matter. These seniority provisions allowed Respondent much flexibility inasmuch as seniority only governed if the senior employee had equal ability and skill to the other employee involved. The Union then offered to withdraw one of its major proposals-dues deduction-as a trade for concession for arbitration. This concession drew no counterconcession. At the end of the bargaining the Union was offering, in essence, to relinquish its arbitration proposal in trade for wage concessions. The Union's position drew no counterconcession as to wages, but did draw certain additional proposals relating to its express right to strike and to conciliation. Indicia of Bad Faith In connection with the foregoing and all the evidence, I am persuaded that certain of Respondent's proposals and positions reveal its bad-faith intent as to its overall bargaining. Thus the Respondent, at a time when there had been relatively insignifi- cant agreement, and when there was disagreement as to substantially all major and most minor contract proposals, injected new proposals which were calculated to broaden the areas of disagreement and to impair and impede the negotiations. Thus I am persuaded that Respondent's injection of certain contract proposals on August 19 orally and in writing on August 21 into the bargaining is revealing of a bad-faith intent on its part. Thus, the Respondent proposed a new subcontracting proposal reading as follows: "The company in its discretion may contract or sub- contract any work which in its judgment should be contracted or subcontracted." It is not contended, nor do I find, that such a proposal, or position in support thereof, would independently constitute a per se refusal to bargain. However, the parties had discussed on August 5, with reference to a clause in Respondent's rights-of-manage- ment clause the question of subcontracting. This clause read: "This contract shall not apply to any labor done by an independent contractor or to activities or labor done not directly connected with the plant operations." Luna, business representative 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the Union, had objected , asserting that this clause would allow the Respondent to subcontract away the work of the employees in the unit. Respondent's Attorney Otis Nelson had assured Luna that the Respondent did not intend to subcontract away the work of the employees in the unit. Luna at the time expressed no opposition to a subcontracting provision relating to construction or installation of new facilities. Thus, in the context of the status of the bargaining postures, the Union's known objec- tions, and its past assurances, the Respondent must have known, and therefore inferentially have intended, that its proposal would broaden the area of dispute and delay and impede the negotiation of a contract. The offer of a contract proposal in terms known to be objectionable to the Union and contrary to past assurances must have been made for the purpose of presenting Respondent's contract proposal in such a manner that the terms thereof would not be acceptable to the Union.7 Similarly, I am convinced that Respondent's proposal on August 19 and 21, relating to nontransferability of seniority (if the plant were moved), reveals an intent to bargain in bad faith. The parties' original seniority proposals were basically standard proposals. The Respondent's seniority proposal, however, provided in essence that seniority governed as to promotion, layoff, and restoration of service, provided the senior employee had equal ability, skill, and efficiency with other employees involved. The seniority provisions made no reference to nontransferability of seniority if the plant were moved. The Respondent thus on August 21, in writing, proposed as follows: "In the event the plant of the Company is moved, the seniority provided in this contract for the Wichita Falls plant shall not be transferable." For the same reasoning previously set forth as to the Respondent's subcontracting clause, I would not find that the seniority clause, or a position in support thereof, would independently be evidence of a per se refusal to bargain. However, in the context of the status of bargaining and because of the Respondent's reason as expressed to Luna when Luna objected to the clause, I am convinced that it was offered to impede the bargaining progress. Respondent's Attorney Nelson told Luna that the Respondent had no intention to move the plant. As later revealed at a time when Luna was indicating that he would consider agreeing to the Respondent's contract if "money" were added, Nelson indicated concern that the parties might be wasting their time bargaining, that a condemnation proceeding might take all of Respondent's property. Thus, in the context of the bargaining status, and the foregoing, I am convinced that Respondent's proposal relating to nontransferability of seniority was intended as a proposal calculated to be unacceptable to the Union and was offered so as to make Respondent's proposal as a whole unacceptable. Consequently, it was intended to impede and delay the bargaining and to forestall agreement by the creation of un- acceptable terms. This reveals clearly Respondent's bad-faith intent as to its bargain- ing with the Union. The Failure To Furnish Financial Information Requested In the context of all the bargaining proposals and positions, I am convinced that Respondent's failure to furnish the financial books and records to the Union as re- quested reveals its bad-faith intent. The Respondent's expressed position on its failure to offer increased wages and its failure to agree to the Union's wage offer constituted a "plea of inability to pay." 8 This is revealed by Nelson's statement at the November 8 session to the effect that Respondent proposed to leave wages as they were, that they did not propose to give any wage increases because the Respondent could not afford to increase their labor costs and wages were cost items, and if they did, they would jeopardize their competi- tive position with the Dallas Foundry Company. It is revealed further by Respond- ent's general position on labor costs as summarized by Lloyd Taylor, Jr., who said, "Well, it being such a prohibitive item-the other foundries are not having to do it, and we have got to maintain a competitive position . . . . We stated that through- out the bargaining sessions, that if we so increased our labor costs that we would lose a margin of profit that we have and we can't exist." The Respondent would contend that the foregoing in connection with Nelson's statement to Luna in Novem- ber that he was not pleading "poverty" does not constitute a "plea of inability to pay." In view of the position as expressed above, and in accordance with the reason- ing expressed in Tennessee Chair Company, Inc., 126 NLRB 1357, Tennessee Coal & Iron Division, United States Steel Corporation, 122 NLRB 1519, and B. L. 7 Respondent's later proposals did not overcome the Union's objections. 8 The Union's original wage proposal involved a demand for increased wages Its later wage demand involved an increase in wages but a reduction of its original demand Re- spondent's continuing wage offer was that of current wages TAYLOR FOUNDRY COMPANY 779 Montague Company, 116 NLRB 554, I reject such contention and am convinced that Respondent plead inability to pay within the meaning of N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149. The Union's request was tantamount to a request for Respondent to furnish justifica- tion for its "plea of inability to pay." Good-faith bargaining required Respondent, upon request, to submit information about its financial status in support of its claimed inability to pay any increased wages. As indicated by the Supreme Court in the Truitt case, if an argument as to "inability to pay" is important enough to assert in the give-and-take of bargaining, it is important enough to require some proof of its accuracy. In the instant case, the requested ifnormation, which was solely within Respondent's knowledge, was necessary to enable the Union to determine whether Respondent's asserted grounds for not offering or agreeing to any increase in wages were legitimate or an alibi, as well as to enable the Union to report to its members on the merit of its demands. From such information the Union could have con- sidered the correlation of costs, profits, and the price of Respondent's products and determined, from its viewpoint, whether it should agree to the Respondent's wage offer, or attempt to persuade on the basis of specific information as to the merits of its own wage proposals. It could so inform its members of the same. Thus, such information conceivably could have removed a major obstacle to bargaining. I there- fore find that Respondent violated its statutory obligation to bargain with the Union within the meaning of Section 8 (a) (5) and (1) of the Act by refusing to furnish such financial data or other probative material to substantiate its claim of inability to pay any increased wages. Conclusions When viewed as a whole, I am persuaded that Respondent's proposals or con- cessions, as were made, were in an attempt to cover up its bad-faith intent, and that its entire course of bargaining was guided with an intent to bargain in bad faith. Thus, I am convinced that Respondent's August 19 and 21 proposals concerning subcontracting and nontransferability of seniority, and its refusal to furnish requested financial information in support of its claim of inability to pay any wage increase, in connection with all of Respondent's proposals and positions, and all the evidence in the case, constitute convincing proof that Respondent violated its statutory obligation to bargain with the Union, within the meaning of Section 8(a)(5) and (1) of the Act and I so find. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirma- tive action designed to effectuate the policies of the Act. In particular, I shall recom- mend that, upon request by the Union, negotiations between it and the Respondent be renewed and that the Respondent furnish to the Union such record information and other probative material as will substantiate the Respondent's claim that it can- not afford to grant a wage increase and which will enable the Union to discharge its function as the statutory representative of the employees in the unit found appropriate. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the following is made: CONCLUSIONS OF LAW 1. Lodge 1476, International Association of Machinists, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. Lloyd J. Taylor, d/b/a Taylor Foundry Company, is engaged in commerce within the meaning of the Act. 3. All production and maintenance employees employed at Respondent's Wichita Falls, Texas, plant, exclusive of all other employees, office clerical, professional, guards, and supervisors as defined in the Act, constitute a unit of the Respondent's employees appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. At all times since July 14, 1961, the Union has been, and is, the exclusive rep- resentative of all employees in said appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing to bargain collectively with the Union as the exclusive representative of its employees in said appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 6. By said conduct the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 8. The Respondent has not engaged in unfair labor practices by its conduct in its selection of negotiators, nor as to its conduct with regards to its failure to schedule work on Saturdays on and after August 5, 1961. RECOMMENDED ORDER 9 Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, it is recommended 10 that the Respondent, Lloyd J. Taylor, d/b/a Taylor Foundry Company, its officers, agents, successors, and assigns, shall- 1. Cease and desist from: (a) Refusing to bargain collectively with Lodge 1476, International Association of Machinists, AFL-CIO, as the exclusive representative of all the Respondent's production and maintenance employees at its Wichita Falls, Texas, plant, exclusive of all other employees, office clerical, professional, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with the efforts of said Union to bargain collectively on behalf of the Respondent's employees. 2. Take the following affirmative action designed to effectuate the policies of the Act- (a) Upon request, bargain collectively with Lodge 1476, International Association of Machinists, AFL-CIO, as the exclusive representative of all its employees in the aforesaid bargaining unit, with respect to wages, rates of pay, hours of employment, or other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Upon request, furnish said Union with such record information and other probative material as will substantiate the Respondent's claim of its inability to pay any wage increase and will enable said Union to discharge its function as the statutory representative of the Respondent's employees in aforesaid bargaining unit. (c) Post at its premises, in Wichita Falls, Texas, copies of the attached notice marked "Appendix D." 11 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, 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 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notice is not altered, defaced, or covered by any other material. (d) Notify the Regional Director for the Sixteenth Region, in writing, within 20 days from the date of this Recommended Order, what steps the Respondent has taken to comply herewith.12 9 In the event that this Recommended Order be adopted by the Board, the word "Order" shall be deemed substituted for the words "Recommended Order" 10 In the event that this Recommended Order be adopted by the Board, the word "Order" shall be deemed substituted for the word "Recommended " u In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order 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 " 12 In 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 date of this Older, what steps the Respondent has taken to comply herewith " TAYLOR FOUNDRY COMPANY 781 It is further recommended that the complaint be dismissed insofar as it alleges that (1) Respondent failed to provide negotiators who were willing or physically able to carry on bargaining negotiations of the frequency and duration required by Section 8(d) of the Act; and (2) Respondent unilaterally changed the workweek then in effect at Respondent's plant by eliminating production work on Saturdays. APPENDIX A 1 (The Union's Proposals) AGREEMENT BETWEEN TAYLOR FOUNDRY COMPANY AND LODGE No. 1476 OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO THIS AGREEMENT, made and entered into this____________________, by and between the Taylor Foundry Company of Wichita Falls, Texas, hereinafter referred to as the Company, and Lodge No. 1476 of the International Association of Ma- ,chinists, hereinafter referred to as the Union. [Similar to Respondent's proposals-see Appendixes B and C.] PREAMBLE The purpose of this Agreement is to promote harmonious relationship between the Company and its employees, to promote industrial peace, to establish rates of pay, working hours and other conditions of employment. [Similar to Respondent's proposals-see Appendixes B and C.] ARTICLE I-RECOGNITION Taylor Foundry Company of Wichita Falls, Texas, recognizes Lodge No. 1476, International Association of Machinists, AFL-CIO, as the sole collective bargaining agency for the employees in the plant. CERTIFICATION-16-RC-2926. [Substantially similar to Respondent's proposals-see Appendixes B and C- article I.] ARTICLE II-RIGHTS OF MANAGEMENT The Company has the right to manage the plant, direct the working forces, deter- mine the products to be manufactured, the method of manufacturing said products, relieve men from duty because of lack of work and discharge for proper cause, provided however, that no act on the Company's part shall be in conflict to the rules agreed to elsewhere in this Contract. [See Appendix B, article II, for Respondent's initial proposal, and Appendix C, article II, relating to tentative agreement by the parties to Respondent's proposal- August 5, 1961.] ARTICLE III-WORKING HOURS AND OVERTIME RATES (a) For the purpose of computing overtime , the work week shall consist of five (5) consecutive work days of eight (8) hours, Monday through Friday (lunch period excluded.) [The parties reached no agreement.] (b) All work performed in excess of eight (8) hours in any one work day and up to ten ( 10) hours in any one work day shall be paid for at one and one half (11) times the regular rate . Work performed in excess of ten (10) hours in any one day shall be paid for at double (2) the regular rate. [The parties reached no agreement.] (c) All Employees coming under the provisions of this Agreement shall be on an hourly rate. [Article III (c ) is identical to Respondent 's proposal-article 111(e ) first sentence- see Appendix B, article 11(e)-agreed to August 5, 1961.] (d) The starting time of each shift may be changed by mutual agreement but the starting time of the first shall not be earlier than seven o 'clock a.m. nor later than 1 Based on the Union's original contract proposal-July 29, 1961 (General Counsel's Exhibit No 5). The contract proposals are reproduced verbatim. The comments follow- ing the original contract proposal (and set out In brackets) are supplied by the Trial Examiner and refer to the proposals made by the Union during the course of bargaining, and to certain comparisons to Respondent's proposals. Said comments are based on a composite of the credited testimony of Luna, Keith Nelson, Otis Nelson, Lloyd Taylor, Jr, and the various exhibits Emphasis supplied by the Trial Examiner to keynote differences between Union and Respondent's proposal. 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eight o'clock a.m. The time and length of lunch period shall be arranged by mutual' agreement between the Company and the Union. [The parties reached no agreement.] (e) Employees working on a second shift shall be paid a shift bonus of ten cents per hour. The starting time of this shift shall be by mutual agreement between the Company and the Union. [The parties reached no agreement.] (f) All work performed on Saturday shall be paid for at one and one half times the regular rate and all work performed on Sunday shall be paid for at double time. Work performed after midnight Saturday shall be counted as Sunday work. [The parties reached no agreement.] (g) When an employee works overtime, he shall not be laid off during regular hours to equal the time. [Identical to Respondent's proposal-see Appendix B, article 111(g ), agreed to August 5, 1961.] (h) Employees have the right to refuse to work overtime , provided they give a reasonable excuse and no employee shall be compelled to work overtime on a Sunday or holiday against his wishes. [The Union agreed to the Respondent's proposal as modified on November 4, 1961 . See Appendix B, article 111(h), and Appendix C, article 111(h).] (i) The Company, insofar as possible agrees to distribute overtime equally in each Classification and agrees to provide an overtime board . Employees refusing overtime (except when sick) shall be charged for overtime refused as well as overtime worked in determining the equalization of overtime hours. Overtime worked or refused will be posted the following day. Overtime record will end December 31 and start anew January 1, with 0 hours for each employee. [The first sentence is identical to a sentence in Respondent's proposal-see Appen- dix B , article 111(i). The Union agreed to Respondent's proposal as modified on November 4, 1961-see Appendix C, article III(i).] ARTICLE IV-HOLIDAYS (a) The following days shall be observed as holidays . New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day. [The Respondent's original proposal-see Appendix B, article IV(a), omitted Memorial Day. The Respondent agreed to add Memorial Day and the parties agreed to the proposal on August 12, 1961-see Appendix C, article IV(a). The Union offered to exchange New Year's Day for Christmas Eve but the Respondent declined the change.] (b) All employees covered by this agreement shall receive holiday pay for each of the above designated holidays not worked , irrespective of the day of the week on which the holiday may fall, at the rate of eight hours straight time pay, provided the employee work either the regular scheduled work day before or after the holiday. If a holiday falls within an employee's vacation period , the first scheduled work day before or after the vacation will apply. [The parties reached no agreement.] (c) Employees who worked on any of the above mentioned holidays shall in addition to the straight time pay (eight hours ) be paid time and one half for all work performed on such holiday. [The parties reached no agreement.] (d) If a holiday falls within an employee's vacation period, such holiday shall not be considered as part of the vacation period , and the employee shall receive his full vacation in addition to any holiday pay. [The Union agreed to Respondent's proposal as modified on September 16, 1961- see Appendix B, article IV(c) and Appendix C, article IV(c) ] ARTICLE V-VACATIONS (a) Upon completion of one year of continuous service, employees shall receive one week's vacation ; employees with three years of continuous service shall receive two weeks' vacation ; and after twelve years of service three weeks' vacation. [The Union agreed to part of the Respondent 's vacation proposal relating to 1-week vacation-see Appendix B, article V(a), and Appendix C, article V(a). The Union agreed on September 23, 1961 , to withdraw its demand for 3 -week vacation, but continued to demand 2-week vacation after 3 years ' service.] TAYLOR FOUNDRY COMPANY 783 (b) Any employee having completed one year of service and leaves the service of the Company for any reason shall receive a pro rata payment of his vacation earned upon separation from the Company. [The parties reached no agreement.] ARTICLE VI-JURY DUTY Employees called on Jury Duty will be paid the difference between the amount re- ceived for jury service and the amount they would have received at straight time pay. It is understood that employees will return to work immediately on being excused from jury duty each day. [The parties reached no agreement. The Respondent on November 28 offered to give extra overtime work as an offset to wages lost because of jury service.] ARTICLE VII-GRIEVANCE PROCEDURE (a) The Union shall be represented by a Union Shop Committee of not more than three employees of the Company, the Shop Committee shall be elected by the Union members who worked for the Taylor Foundry Company. The Company agrees' to meet with the Shop Committee at any reasonable time to try and settle any grievance or dispute that may arise. [Except for the last sentence, similar to Respondent's proposal-see Appendix B, article VI(a), and Appendix C, article VI(a). Respondent's proposal agreed to on August 5, 1961.] (b) Should any employee covered by this agreement feel that he had been un- justly dealt with or if he feels that any of the provisions of this Agreement have been violated the matter shall be taken up with the Foreman in charge by the Shop Committee. [Identical to Respondent's proposal-see Appendix B, article VI(b), and Appen- dix C, article VI(b). Agreed to by the parties on August 5, 1961.] (c) In the event a satisfactory settlement is not reached with the Foreman the matter shall then be taken to highest officer representing management who is author- ized to handle such matters. [Identical to Respondent's proposal-see Appendix B, article VI(c), and Appen- dix C, article VI(c). Agreed to by the parties on August 5, 1961.] (d) In the event that no settlement is reached then either party may request arbitration, in such event the parties would request the Federal Mediation & Con- ciliation Service to furnish a list of five arbitrators, each party would then strike two names from the list and the one that remained would be the arbitrator. The com- pensation and expenses of the arbitrator shall be born equally by the Company and the Union. [No agreement by the parties.] (e) The arbitrator shall fix a time for the hearing, hear all evidence in connection with the grievance and render a decision in writing within thirty days after the hearing is closed. The decision of the arbitrator shall be final and bindng on both parties. [No agreement by the parties.] (g) All grievances and disputes arising under the terms of this Agreement shall be handled by the Shop Committee during regular working hours without loss of time and the Shop Committee may call in their Business Representative or Grand Lodge Representative any time to assist them in the handling of disputes or grievances. The Company agrees' that it will not discriminate against any employee who serves on the Shop Committee. [See Appendix B, article VI(e), and Appendix C, article VI(e). The parties agreed to Respondent's proposal providing for the handling of grievances after working hours on October 7, 1961. The Union also agreed on August 5, 1961, to Respondent's proposal-see Appendix B, article VI(d), relating to attempts to settle grievances amicably.] ARTICLE VIII-SENIORITY (a) Seniority shall mean the length of employment with the Company from the Employee's last hiring date and Classification means the type of work performed by the employee. [Very similar to Respondent's original proposal-see Appendix B, article VII(a), to which the parties substantially agreed on August 5, 1961, and agreed to by Oc- tober 7, 1961.] (b) Journey employees shall be regarded as temporary employees for the first thirty days. All other employees shall be regarded as temporary employees for the first sixty days of employment and after this period, the names of such employees 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shall be placed on the seniority list in their respective classifications in the order of their original employment. [The Union and the Respondent both modified their position, and agreed to the proposal set out in Appendix C, article VII(c), on September 16, 1961. See Respondent's original proposal-Appendix B, article VII(c).1 (c) Seniority shall govern in promotion, lay-off and restoration to service for all employees covered by this agreement. The senior employee in his classification will be given preference in promotion. [The Union agreed to the Respondent's proposal by October 7, 1961. See Appen- dix B, article VII(d), and Appendix C, Article VII(d).] (d) If an employee is assigned temporarily to perform the work of another job or classification carrying a higher rate of pay, he shall receive the higher rate while performing such work. But if temporary assigned to a job carrying a lower rate, his rate shall not be changed. [Similar to part of Respondent's proposal-see Appendix B, article VII(b). Both parties agreed to Respondent's proposal on September 2, 1961. See Appendix C, article VII(b).] (e) The Company shall keep the seniority list for each individual and this shall be available to the Shop Committee upon request, the seniority list shall be posted on a bulletin board in the plant and a copy furnished to the Union Secretary each six months. This list may be challenged by the Union or any employee within thirty days after posting otherwise it shall be assumed to be correct. [Identical to Respondent's proposal-see Appendixes B and C, article VII(e)- Agreed to on August 5, 1961.] (f) The Union shall be advised of all employees affected in case of lay-off and the affected employees will be given three working days notice prior to being laid off. [See Appendixes B and C, article VII(f), and Appendix C, article X(g), agreed to by the parties on August 5 and November 4, 1961, respectively.] (g) An employee recalled after a lay-off shall be given notice by registered letter and will be required to notify the Company within seven days, whether he will return to work and if so he shall return within fourteen days after notice is given. Employees failing to comply with the foregoing requirements shall be dropped from the seniority roster and will not be eligible for recall. It shall not be necessary to recall any laid-off employee after twenty four months have elapsed since the employee was laid off. [The Union and the Respondent both modified their position and agreed to the proposal set out in Appendix C, article VII(g), on September 19, 1961 ] (h) Employees covered by this Agreement who are inducted or enlist in any branch of the military service of the United States shall maintain their full seniority rights during the period of such service and for such other period as is provided by law. [In many respects article VIII(a), (b), (c), (d), (e), (f); (g), and (h) was similar to Respondent's proposal-See Appendix B, article VII. The areas of disagreement has been delineated by the emphasis supplied by italics. Appendix C, article VII, reflects the areas of agreement and disagreement. Article VIIl(h) and the Re- spondent's proposal were identical. However, originally the Respondent questioned the qualification of employees as to physical ability.] ARTICLE IX-SUPERVISORS Company Supervisors shall not work with tools of the trade other than to instruct, supervise or in case of an emergency. [No agreement was reached by the parties.] ARTICLE X-INJURY (a) Men who are injured while working for the Company and have to report to a doctor for treatment of such injury, will be paid for the time spent in going to a doctor, payment not to exceed a day's pay. Employees who are required to report to the doctor for subsequent treatments shall be allowed up to two hours' time with pay for each trip required. [No agreement was reached by the parties.] ARTICLE XI-BUSINESS REPRESENTATIVE The Business Representative or an International Representative of the Union may have access to the Company's premises during working hours for the purpose of investigating grievances. [No agreement was reached by the parties.] TAYLOR FOUNDRY COMPANY 785 ARTICLE XH-BULLETIN BOARD The Company agrees to provide a Bulletin Board in the plant for the posting of notices of interest to the Union Membership. [On November 8, the Respondent agreed (orally) substantially to the above- see Appendix C, article X (h), supplied comment. The Union on November 4 proposed that it be allowed to use the timeclock for certain union notices-agreed to by the parties on November 4, 1961.] ARTICLE XIII-REPORTING AND CALL IN TIME (a) Employees reporting for work on their regular shifts shall be paid a minimum of two hours pay at the prevailing rate, if for any reason the Company is unable to provide work. (b) Employees called back to work after having left the Company premises shall be paid a minimum of two hours pay at the prevailing rate. [See Appendix C, article XVI, reflecting certain agreements thereto.] ARTICLE XIV-SHOP CONDITIONS AND GENERAL RULES (a) The Company shall at all times provide safe and sanitary working conditions, cool drinking water shall be furnished at all times. Floors, lockers, toilets and washrooms shall be in a dry, clean and sanitary condition , lighted and heated in the best manner consistent with plant facilities . The Company and the Union agree to cooperate in every reasonable manner to eliminate all unsafe practices and conditions. [See Appendix C, article X(a), reflecting agreement to Respondent's proposal (not originally proposed ) which is substantially similar-by November 8, 1961.] (b) All employees covered by this agreement shall be paid weekly. [Identical to part of first sentence in Respondent 's proposal-see Appendix B, article X (a)-Agreed to by October 7, 1961.] (c) The Company agrees to grant necessary leaves of absence without pay to any employees covered by this agreement who may be designated from time to time by the Union to attend Union Meetings and conventions or to transact any other necessary business for the Union. (d) Any employee covered by this Agreement may be granted a leave of absence up to thirty days without pay by the Company on account of ill health , personal business or for any other good cause , if plant conditions will permit . The employee would also have the right to extend the leave for a reasonable length of time. Should any employee on leave of absence engage in any other employment without having first secured the consent of both the Company and the Union, he shall lose his seniority. [See Appendix C, article X(c) and (d), for Respondent's modified proposals agreed to by the parties on November 1, 1961.] (e) Employees shall receive their vacation pay not later than the last regular scheduled work day before the starting time of his vacation. [No agreement was reached by the parties.] (f) The Company will furnish a copy of this Agreement to all present employees and all newly employed persons who come under the provisions of this Agreement [See Appendix C-comments supplied after article X(h) relating to oral agree- ment as to modification of this proposal.] (g) It is agreed by the parties that so long as the Company lives up to this Agree- ment there shall be no Union authorized strikes and so long as the Union lives up to this Agreement there shall be no lockout by the Company. [No agreement was reached by the parties.] (h) The Company agrees to abide by the Federal Apprenticeship Bureau Rules for training of apprentices. [See Appendix C, article X(f), comments relating to agreement to modified Re- spondent's proposals-in November 1961.] ARTICLE XV-DUES DEDUCTIONS (a) The Company agrees that it will deduct from the first pay check of each month and remit it to the financial Secretary of the Union, all dues of all employees eligible for membership voluntarily execute a revocable dues deduction authorization form and cause it to be placed in the hands of employer . Such authorization shall be on forms provided by the Union, and shall be signed by the individual before they are placed in the hands of the Company for deduction. 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [No agreement was reached by the parties. The Union offered on November 8 to withdraw this proposal if it could obtain an arbitration clause. At the end of the bargaining sessions the Union offered to consider signing Respondent's pro- posals (not containing arbitration or dues deductions proposals ) if "money" were added to the contract proposal (increase in wages, etc.). [Miscellaneous [The Union proposed on October 21 (General Counsel's Exhibit No. 27) a sub- contracting clause reading as follows: SUBCONTRACTING The Company agrees that during the term of the agreement no work usually performed by the employees in the unit will be subcontracted. This provision does not apply to major modification, construction or installation of new facilities. Also for any given period of time that plant facilities would not permit the Company to meet delivery schedules. Prior to the negotiating sessions Luna had indicated to Respondent's Attorney Nelson that the Union's wage demands would be for the wage rates in existence at "Wichita Falls and Foundry Machine Company, Inc." At the session on Sep- tember 16, Luna proposed such wage demands, and in writing proposed such demand on October 21. On February 17 Luna reduced the wage demands, but still proposed wages in excess of the current wages at Respondent. [The Union also made proposals relating to job classifications, definition, and the apprentice program. The parties agreed to the classification, definitions, and the apprentice program, except as to the wage rates, starting and progressive wage rates of apprentices. [The parties on August 10, 1961, agreed to a workweek ending on Thursday with payday on Friday. In connection with its overtime demands, the Union then changed back to a Monday through Friday workweek demand and agreed to with- holding a week's pay in order to retain Friday as a payday. [See Appendixes B and C for the Respondent's proposals not referred to herein, agreed to, or disagreed to by the Union.] APPENDIX B 1 (The Respondent's Proposal of August 3, 1961) AGREEMENT BETWEEN TAYLOR FOUNDRY COMPANY AND LODGE No. 1476 OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO THIS AGREEMENT, made and entered into this ------ day of August, 1961, by and between the Taylor Foundry Company of Wichita Falls, Texas, hereinafter referred to as the Company, and Lodge No. 1476 of the International Association of Machin- ists, hereinafter referred to as the Union. [Identical to Union's proposal-see Appendix A.] PREAMBLE The purpose of this Agreement is to promote a harmonious relationship between the Company and its employees, to promote industrial peace, and to establish rates of pay, working hours and other conditions of employment. [Identical to Union's proposal-see Appendix A.] ARTICLE I-RECOGNITION Taylor Foundry Company, the trade name under which L. J. Taylor operates his business, recognizes Lodge No. 1476, International Association of Machinists, AFL-CIO, as the sole authorized collective bargaining representative for the em- ployees of the plant which is located at 1901 Broad Street in Wichita Falls, Texas. The employees of the Company are employed in the departments and classifications shown on Exhibit B here attached and made a part hereof , and the definitions of the respective classifications of employees are defined in Exhibit D which is attached hereto and made a part hereof. This agreement does not cover supervisory forces as defined by the laws of the United States, nor does it include office clerk, office Based on the Respondent's Initial Contract Proposal of August 3, 1961 (General Counsel's Exhibit No 7). Emphasis and comment (set out in brackets) supplied by the Trial Examiner to point out certain areas differing from the Union's proposal or conten- tion in Appendix A. TAYLOR FOUNDRY COMPANY 787 janitors, draftsmen, drafting room employees , technical engineering forces, salesmen, watchmen, or accounting employees. [Substantially similar to Union 's original proposal-see Appendix A.] ARTICLE II-RIGHTS OF MANAGEMENT The Company has the right to manage the plant, direct the working forces, deter- mine the employees whom it will hire, promote, discharge, or lay off, determine the products to be manufactured, the method of manufacturing of said products . estab- lish and promulgate rules to maintain order and efficiency in its plant, and the right to determine any other policy or practice which is customarily or usually left to the management of a company, except where those rights may be restricted by the terms and provisions of this contract. This contract shall not apply to any labor done by an independent contractor or to activities or labor done not directly connected with the plant operations. ARTICLE III-WORKING HOURS AND OVERTIME RATES (A) Nothing in this Agreement shall be construed as an obligation on the part of the Company to employ any person or persons for any definite period of time. The provisions of this article shall not be construed as a guarantee of any number of hours of work per day nor per week, nor as a limitation upon the Company 's right to schedule more or less hours per day or per week as in its judgment the operations of the plant require. It is intended only to define the method under which employees will be compensated for the time worked. (B) The normal work week shall consist of five (5) consecutive days, Monday through Friday, and the normal work day shall consist of eight (8) hours (the lunch period excluded ). The Company, however, may establish a longer work week. (C) All work performed in excess of forty (40) hours in any one work week shall be paid for at the rate of one and one-half tunes the regular basic rate. (D) The starting time for coremakers on the first shift shall normally be seven (7) o'clock A .M., and the starting time of the other employees other than the night man shall normally be 7:30 A.M. The shift of the night man (which is not to be con- strued as a second or third shift ) shall be from 11:30 P.M. to 7:30 A.M. However, the Company shall have the right to call in employees at an earlier hour than that provided for herein. Once established the starting time of any shift may be changed by negotiation between the Company and the Union . The time and length of the lunch period shall be established by negotiation between the Company and the Union. (E) All employees coming under the provisions of this Agreement shall be paid on an hourly basis. This provision, however, shall not prevent the Company from paying its supervisors personnel also on an hourly basis. [First sentence identical to Union 's proposal-see Appendix A, article I11(C).] (F) Employees who work on the second shift , if a second shift is established by the Company, shall be paid a shift bonus of five cents (50) per hour over and above their basic rate . If a third shift is established by the Company, then employees who work on the third shift shall be paid a shift bonus of ten cents (100) per hour over and above their basic rate. (G) When an employee works overtime, he shall not be laid off during regular work hours to equalize that time. [Identical to Union's proposal-see Appendix A, article III(G).] (H) The Company shall have the right to require any employee to work over- time, except that no employee shall be required to work overtime in the event of his inability to do so because of his own sickness, serious sickness in his immediate family, or sickness of his mother, father, brother or sister. In the event the em- ployee claims to be sick, or claims to have sickness in his immediate family or among his relatives above mentioned , the Company may require that it be furnished a doctor's certificate showing the sickness of the persons involved. (I) The Company insofar as practicable agrees to distribute overtime equally in each classification. [Identical to first sentence in Union 's proposal-see Appendix A, article III(I).] ARTICLE IV-HOLIDAYS (A) The following days are considered to be holidays : New Year's Day, Inde- pendence Day, Labor Day, Thanksgiving Day, and Christmas Day. [Excepting for the occasion of "Memorial Day"-similar to Union 's proposal-see Appendix A, article IV(A).] 708-006-64-vol. 141-51 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (B) If the employee involved works on the last scheduled work day before the holiday and the next scheduled work day after the holiday and if he does not work on any of the holidays, he shall receive his basic pay for four hours for all the holidays except Christmas, and shall receive his basic pay for eight hours on Christ- mas Day. If he works on any of said holidays he shall receive, in addition to the amount provided above, his regular basic rate of pay for the time worked. (C) If any of the holidays above mentioned occur during the time that the em- ployee is on vacation, then the provision herein with reference to holiday pay shall not apply to those holidays which occur during the employee's vacation. (D) Employees who are on lay-of} on holidays will not be paid holiday pay. ARTICLE V-VACATIONS (A) Employees who are working on January 1st of any year and who have worked continuously from the first of the year until the vacation period shall receive one week's (five days) paid vacation, based upon the basic wage for eight hours each day. Employees who have quit or been discharged shall not be entitled to any portion of the vacation pay. (B) Unless subsequently charged by the Company, after negotiation with the Union, the vacation period fixed in the year 1961 shall be the same in the year 1962. (C) Employees who are on lay-off during vacation period will not be paid vacation pay. ARTICLE VI-GRIEVANCE PROCEDURE (A) The Union shall be represented by a Union Shop Committee of not more than three employees. The Shop Committee shall be elected by the Union members who work for the Taylor Foundry Company. [Substantially similar to Union's proposal-see Appendix A, article VII (A). The Union's proposal contained an additional sentence relating to time to meet.] (B) Should any employee covered by this Agreement feel that he has been un- justly dealt with or if he feels that any of the provisions of this Agreement have been violated, the matter shall be taken up with the Foreman in charge by the Shop Committee. (C) In the event a satisfactory settlement is not reached with the Foreman, the matter shall then be taken to the highest officer representing management who is authorized to handle such matters. [Article VI (B) and (C) are identical to Union's proposal-see Appendix A, article VII (B) and (C).] (D) Both the Union and the Company agree that each of them will make an effort to settle amicably all grievances that might arise during the term of this contract. (E) All grievances and disputes arising under the terms of this Agreement may be handled by the Shop Committee, but unless by agreement with the Company shall be handled after working hours. In presenting grievances to the Company the Shop Committee may call in their Business Representative or Grand Lodge Rep- resentative at such times as they desire. The Company will not discriminate against any employee who serves on the Shop Committee. [Substantially similar to Union's proposal excepting as to the time for handling grievance-see Appendix A, article VI (E).] ARTICLE VII-SENIORITY (A) Seniority means the length of employment of the employee involved by the Company in the classification to which he is assigned since his last hiring date, and classification means the type of work which is performed by the employee, being set out in one of the classifications shown on Exhibit B here attached and made a part hereof. (B) Employees covered by this Agreement shall be confined to the classification in which their seniority is established, except that they may be temporarily assigned to another classification. By the term "temporarily" is meant an assignment which is not for a period continuously longer than thirty (30) work days. If an employee is assigned temporarily to perform the work of another job or classification carrying a higher rate of pay, he shall receive the higher rate while performing such work; but if temporarily assigned to a job carrying a lower rate of pay, his rate of pay shall not be changed. (C)Journeymen employees shall be regarded as temporary employees for the first thirty (30) days of their employment. All other employees shall be regarded as temporary employees for the first ninety (90) days of their employment, and after this period the names of such employees shall be placed on the seniority list in their respective classifications in the order of their original employment. There shall TAYLOR FOUNDRY COMPANY 789 be no responsibility for the rehiring of temporary employees after they are dis- charged, or if they are laid off during this period, and the Company shall have the right to lay off or discharge such temporary employees at its option , there shall be no grievance procedure as to the lay-off or discharge of any temporary employee. (D) Seniority shall govern in the promotion, lay-off and restoration to service for all employees covered by this agreement, provided the senior employee involved has equal ability, skill and efficiency with other employees involved. (E) The Company shall keep a seniority list covering each employee of the Com- pany and this list shall be available to the Shop Committee upon request. The seniority list shall be posted on the bulletin board in the plant and a copy furnished to the Union Secretary each six months. This list may be challenged by the Union or any employee within thirty (30) days after it is posted, otherwise it shall be assumed to be correct. (F) The Union shall be advised of all employees affected in case of a lay-off. The employees who are laid off and who desire reemployment shall advise the Com- pany's personnel department in writing of their address and at the same time shall ad- vise the Union Secretary of their address. In case they move and still desire re- employment, they shall each time they move advise the Company and the Union Secretary of their correct mailing address. (G) The Company during the six months period following the lay-off of any employee shall send notice by registered letter, or by telegram if it desires to recall such employee, a copy sent to the Union, such notice to be directed to the last known address of the employee. The mailing of such registered letter or the delivery of such telegram to the telegraph company shall be all that is required of the Company other than to give copies to the Union. The recalled employee shall communicate with the Company immediately following the receipt of any such telegram or letter recalling him to work and at least not more than seven (7) days after the mailing of the notice of recall or the sending of the telegram and shall advise when he will report to work, which date shall be as early as possible but not more than fourteen (14) days after the mailing of the recall notice or the sending of the telegram. It shall not be necessary to comply with this Paragraph (G) after six months have elapsed since the employee was laid off. (H) Employees covered by this Agreement who are inducted into or enlist in any branch of the military service of the United States shall maintain their full seniority rights during the period of such service and for such other period as is provided by law. [In many respects similar to the Union's original proposal-see Appendix A, article VIII.] ARTICLE VIII-INJURIES SUSTAINED IN THE COURSE OF EMPLOYEE'S EMPLOYMENT Employees who are injured during working hours at the plant of the Company will be taken by the Company to the Company's physician for examination or treat- ment. If after the examination by such physician it appears that such employee sustained only minor injury and is able to work for the remainder of the day, such employee will be brought back to the plant by the Company and put back to work. In such an event he will be paid for the time that he is at the doctor's office. In the event the injury sustained if found by the doctor to be serious so as not to permit the employee to continue work for that day, such employee shall be paid for the time up to the injury, and shall look to the Workmen's Compensation carrier for pay for the time that he is off. ARTICLE IX-VISITS TO THE PLANT BY UNION REPRESENTATIVES In the event of the filing of a grievance under the terms of this Agreement, the International Representative of the Union or the Business Representative of the Union may have access to the Company's premises during working hours for the purpose of investigating such grievance, provided they first report to the office of the Company stating whom they desire to see, the information that they need from such person, and arrange for the proper time for the interview with the management, and further provided that at the option of the Company when information may be required from any employee by the Business Representative or International Repre- sentative, such interview shall be had in the office of the Company. ARTICLE X-SHOP CONDITIONS AND GENERAL RULES (A) All employees covered by this Agreement shall be paid weekly, payment being made no later than by noon on Saturday following the end of the work week on Friday night. 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [The provision that employees should be paid weekly is similar to the Union's proposal-see Appendix A, article XIV (b) .] (B) Employees who are entitled to vacation pay shall receive their checks at noon, if they call for them, on the Saturday after the end of the vacation period. ARTICLE xI-PHYSICAL EXAMINATIONS The Company shall have the right at any time to require any of its employees to report to the Company's physician for a physical or mental examination. Any employee so examined who does not have the physical or mental ability to perform all of his assigned duties in a satisfactory manner shall be discharged. ARTICLE XII Any employee who participates in a strike without the strike being authorized by the Union shall be subject to discharge. ARTICLE XIII Neither the Company nor the Union shall be obligated to negotiate or bargain on any matter of any nature whatsoever not covered by the provisions of this Agreement during the life of this Agreement. ARTICLE XIV It is understood and agreed that the Company shall have the right, without any negotiations with the Union , to close down the plant and cease operations at any time that management should conclude that the continued operation of the plant endangers the owner's health. Management shall also have the right to dispose of the plant without being required to negotiate with the Union on such matter. In the event the plant is closed down or sold under the provisions of this article, this contract shall immediately terminate upon the closing down of the plant or the sale of the plant. Otherwise this contract shall remain in full force and effect for a period of one year after the date hereof. If the plant is to be closed down or sold, the Union shall be given fifteen days notice thereof. EXECUTED this--------------------day of August, 1961. TAYLOR FOUNDRY COMPANY, By ------------------------------- (L. J. TAYLOR, Owner) LODGE No . 1476, INTERNATIONAL ASSOCIATION OF MACHINISTS, By ---------------------------------- ---------------------------------- (committee) ---------------------------------- ('C. F. LUNA, Business Representative) APPENDIX C 1 (The Respondent's Proposals) AGREEMENT BETWEEN TAYLOR FOUNDRY COMPANY AND LODGE No. 1476 OF THE INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL-CIO THIS AGREEMENT, made and entered into this day of November, 1961, by and between the Taylor Foundry Company of Wichita Falls, Texas, hereinafter I The Respondent after its initial proposal (see Appendix B) made various proposals and modifications . On October 7, Respondent submitted a new proposal constituting, basically, its offer of that date with indications of the areas of agreement and disagree- ment. Other proposals and modifications were offered between October and November 8 On November 8, Respondent submitted a new proposal constituting, basically, its offer of that date. Appendix C Is a composite of Respondent's November 8 proposal with para- phrased notes (set out In brackets) reflecting continuing proposals and agreements not contained therein, by Inadvertment omission, or because proposed and agreed after TAYLOR FOUNDRY COMPANY 791 referred to as the Company , and Lodge No. 1476 of the International Association of Machinists, hereinafter referred to as the Union. [Identical to Union's and Respondent's original proposals . See Appendixes A and B. Agreed to by the parties on August 5, 1961.] PREAMBLE The purpose of this Agreement is to promote a harmonious relationship between the Company and its employees, to promote industrial peace, and to establish rates of pay, working hours and other conditions of employment. [Identical to Union's and Respondent's original proposals . See Appendixes A and B. Agreed to by the parties on August 5, 1961.] ARTICLE I-RECOGNITION Taylor Foundry Company, the trade name under which L. J. Taylor operates his business, recognizes Lodge No. 1476, International Association of Machinists, AFL-CIO, as the sole authorized collective bargaining representative for the em- ployees of the plant which is located at 1901 Broad Street in Wichita Falls, Texas, Certification 16-RC-2926. The employees of the Company are employed in the departments and classifications shown on Exhibit A here attached and made a part hereof, and the definitions of the respective classifications of employees are defined in Exhibit B which is attached hereto and made a part hereof. This Agreement does not cover supervisory forces as defined by the laws of the United States, nor does it include office clerk, office janitors, draftsmen , drafting room employees, technical engineering forces, salesmen , watchmen, or accounting employees. [Agreed to by the parties on August 5, 1961.] ARTICLE I[-RIGHTS OF MANAGEMENT The Company has the right to manage the plant, direct the working forces, deter- mine the employees whom it will hire, promote, discharge, lay off, determine the prod- ucts to be manufactured, the method of manufacturing of said products , establish and promulgate rules to maintain order and efficiency in its plant, and the right to determine any other policy or practice which is customarily or usually left to the management of a company, except where those rights may be restricted by the terms and provisions of this contract. [Tentatively agreed to by the parties on August 5, 1961.] This contract shall not apply to any labor done by an independent contractor or to activities or labor done not directly connected with the plant operations. [No agreement was reached by the parties. On November 4 Respondent proposed a separate article reading as follows: The Company shall have the right to make rules governing the attendance, conduct and work of its employees at its plant which are not in conflict with the provisions of this contract. This proposal of November 4 was deleted from Respondent 's November 8 proposal.] ARTICLE III-WORKING HOURS AND OVERTIME RATES (A) Nothing in this Agreement shall be construed as an obligation on the part of the Company to employ any person or persons for any definite period of time. The provisions of this article shall not be construed as a guarantee of any number of hours of work per day nor per week , nor as a limitation upon the Company 's right to schedule more or less hours per day or per week as in its judgment the operations of the plant require. It is intended only to define the method under which employees will be compensated for the time worked [Tentatively agreed to by the parties by October 7, 1961.] (B) The normal work week shall consist of five days , Monday through Friday, and the normal work day shall consist of eight hours, the lunch period excluded. The Company, however, may establish a longer work week. [No agreement was reached by the parties. The Respondent agreed on February 17, 1962, to delete the last sentence of article III (B).] November 8, and certain proposals made but withdrawn prior to November 8. Some agreements as noted are based on the substantial identity of Respondent 's and the Union's proposals The agreements , or proposals, otherwise noted, are based on a composite of the credited testimony of Luna, Keith Nelson , Lloyd Taylor . Jr . Otis Nelson . and on the various exhibits 792 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD (C) All work performed in excess of forty (40) hours in any one work week shall be paid for at the rate of one and one-half times the regular basic rate. [Agreed to by the parties on October 7, 1962. No agreement was reached as to the Union's further overtime proposals.] (D) The starting time for coremakers on the first shift shall normally be seven (7) o'clock A.M., and the starting time of the other employees other than the night man shall normally be 7:30 A.M. The shift of the night man (which is not to be construed as a second or third shift) shall be from 11:30 P.M. to 7:30 AM. However, the Company shall have the right to call in employees at an earlier hour than that provided for herein. Once established the starting time of any shift may be changed by negotiation between the Company and the Union. The time and length of the lunch period shall be established by negotiation between the Company and the Union. [No agreement was reached by the parties.] (E) All employees coming under the provisions of this Agreement shall be paid on an hourly basis. [Identical to the parties' original proposals-agreed to by the parties on August 5, 1961.] (F) Employees who work on the second shift, if a second shift is established by the Company, shall be paid a shift bonus of five cents (50) per hour over and above their basic rate. If a third shift is established by the Company, then employees who work on the third shift shall be paid a shift bonus of ten cents (100) per hour over and above their basic rate. [No agreement was reached by the parties.] (G) When an employee works overtime, he shall not be laid off during regular work hours to equalize that time. [Identical to the parties original proposals-agreed to by the parties on August 5, 1961.] (H) Except as hereinafter stated, the Company shall have the right to require any employee to work overtime. The Company shall not require an employee to work overtime in the event: 1. The employee is ill, or there is death or serious illness in the employee's immediate family, which requires the attendance of the employee, or in the event of the death or serious illness of the employee's father, mother, brother or sister, which requires the employee's attendance. If an employee claims to be ill, or to have illness in his immediate family or among the relatives mentioned above, the Company may require the employee to furnish a doctor's certificate showing the nature of the illness. 2. If other employees having the same classification and equal ability as those who are required to work overtime volunteer to work the overtime re- quired of such employee (and the Company shall make solicitation for volun- teers), such employee shall not be required to work overtime. 3. The provisions of Paragraph 2 of Paragraph (H) shall not apply to Satur- days if the Company schedules work to be done on Saturday if it establishes Saturday as a regular work day. [The Respondent modified its proposal on August 21 and October 31, 1961. Agreed to by the parties on November 4, 1961.] (I) The Company insofar as practicable agrees to distribute overtime equally in each classification. It will furnish space for an overtime board, which board shall be supplied and kept by the Union. Employees refusing overtime (except when sick) shall be charged with overtime refused as well as overtime worked in deter- mining the equalization of overtime hours. [Modification proposed on November 4, 1961. Agreed to by the parties on November 4, 1961.] ARTICLE IV-HOLIDAYS (A) The following days are considered to be holidays: New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day. [Modified to include Memorial Day and agreed to by the parties on August 12, 1961.] (B) If the employee involved has seniority and he works on the last scheduled work day before the holiday and the next scheduled work day after the holiday and if he does not work on any of the holidays except Christmas, he shall receive his basic pay for four hours for all the holidays except Christmas, and shall receive his basic pay for eight hours on Christmas Day. If he works on any of said holidays he shall receive, in addition to the amount provided above, his regular basic rate of pay for the time worked. TAYLOR FOUNDRY COMPANY 793 [No agreement was reached by the parties.] (C) If any of the holidays above mentioned occur during the time that the em- ployee is on vacation, then the provisions herein with reference to holiday pay shall not apply to those holidays which occur during the employee's vacation , except that it will apply to July 4th. [Agreed to by the parties on September 16, 1961.] (D) Employees who are on lay-off on holidays will not be paid holiday pay. In this connection, however, the Company agrees not to lay-off any employee on the day before a holiday. [First sentence not agreed to. The last sentence was agreed to on October 5. On -October 28, Lloyd Taylor, Jr., proposed cutting the number of holidays into half and paying full holiday pay. This was never reduced to writing.] ARTICLE V-VACATIONS (A) Employees who are working on January 1st of any year and who have worked continuously from the first of that year until the vacation period shall receive one week's (five day's ) paid vacation, based upon the basic wage for eight hours each day. Employees who have quit or been discharged prior to the vacation period shall not be entitled to any portion of the vacation pay. [The parties agreed to the first sentence on August 5, 1961. There was no agree- ment reached by the parties as to the second sentence.] (B) Unless subsequently changed by the Company , after negotiation with the Union, the vacation period fixed in the year 1961 shall be the same in the year 1962. [There was no agreement reached by the parties.] (C) Employees who are on lay-off during vacation period will not be paid vaca- tion pay. [There was no agreement reached by the parties.] ARTICLE VI-GRIEVANCE PROCEDURE (A) The Union shall be represented by a Union Shop Committee of not more than three employees . The Shop Committee shall be elected by the Union members who work for the Taylor Foundry Company. [Substantially similar to the Union's original proposal . The Union's original pro- posal contained reference to the time for handling grievances . The parties agreed to Respondent's proposal on August 5, 1961.] (B) Should any employee covered by this Agreement feel that he has been un- justly dealt with or if he feels that any of the provisions of this Agreement have been violated, the matter shall be taken up with the Foreman in charge by the Shop Committee. [Identical to the parties' original proposals . Agreed to by the parties on August 5, 1961.1 (C) In the event a satisfactory settlement is not reached with the Foreman, the matter shall then be taken to the highest officer representing management who is authorized to handle such matters. [Identical to the parties' original proposals . Agreed to by the parties on August 5, 1961.1 (D) Both the Union and the Company agree that each of them will make an -effort to settle amicably all grievances that might arise during the term of this contract. [The parties agreed to Respondent's proposal on August 5, 1961.] (E) All grievances and disputes arising under the terms of this Agreement may be handled by the Shop Committee, but unless by agreement with the Company shall be handled only after working hours. In presenting grievances to the Company the Shop Committee may call in their Business Representative or Grand Lodge Repre- sentative at such times as they desire. The Company will not discriminate against any employee who serves on the Shop Committee. [The parties agreed to Respondent's proposal on October 7, 1961.] (F) No grievance shall be considered unless presented within seven working days after the event occurs which is the subject of the grievance. [Proposed by the Respondent on November 4, 1961. No agreement was reached by the parties.] [The Respondent agreed to add to its proposal on February 17: In the event the grievance procedure is not settled satisfactorily to the Union, it shall have the right to strike. 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And on March 10: If and in the event a grievance is not settled to the satisfaction of the Union or the Company, the Company and the Union agree that the dissatisfied party may call in a conciliator to conciliate the grievance.] ARTICLE VII-SENIORITY (A) Seniority means the length of employment of the employee involved by the Company in the classification to which he is assigned since his last hiring date, and classification means the type of work which is performed by the employee, being set out in one of the classifications shown on Exhibit A here attached and made a part hereof. [Agreed to by the parties by October 7, 1961.] (B) Employees covered by this agreement shall be confined to the classification in which their seniority is established, except that they may be temporarily assigned to another classification. If an employee is assigned to perform the work of another classification carrying a higher rate of pay, except as hereinafter stated, he shall re- ceive the higher rate while performing such work , but if temporarily assigned to a job carrying a lower rate of pay, his rate of pay shall not be changed. [Similar to Union's proposal.] [Substantially similar to the parties' original proposals . Agreed to by the parties on September 2, 1961.] Apprentices assigned to perform the job of journeyman will not receive journey- man's pay, but only the rate of pay provided in this contract for apprentices. If a helper is assigned to perform the work of a journeyman , instead of receiving the journeyman's pay he shall receive the lowest rate applicable to an apprentice ; except that if his regular rate is higher than that rate, he shall receive his regular rate. [Proposed by the Respondent on August 21, 1961. No agreement was reached by the parties.] (C) Journeyman employees shall be regarded as temporary employees for the first thirty (30) days of their employment. All other employees, other than apprentices who are governed by an apprenticeship agreement, shall be regarded as temporary employees for the first seventy-five (75) days of their employment, and after this period the names of such employees shall be placed on the seniority in their respective classifications in the order of their original employment. There shall be no responsibility for the rehiring of temporary employees after they are discharged, or if they are laid off during this period, and the Company shall have the right to lay off or discharge such temporary employees at its option, there shall be no grievance procedure as to the lay-off or discharge of any temporary employee. [Both parties modified their original proposals and agreed to this proposal on September 16, 1961.] (D) Except as later provided in this Paragraph (D), seniority shall govern in the promotion, lay-off and restoration to service for all employees covered by this agreement, provided the senior employee involved has equal ability, skill and effi- ciency with other employees involved. In the event the plant of the Company is moved, the seniority provided in this contract for the Wichita Falls plant shall not be transferable. [Respondent modified its original proposal on August 21, 1961. The parties agreed to the first sentence by October 7, 1961. No agreement was reached by the parties as to the last sentence.] (E) The Company shall keep a seniority list covering each employee of the Company and this list shall be available to the Shop Committee upon request. The seniority list shall be posted on the bulletin board in the plant and a copy furnished to the Union Secretary each six months This list may be challenged by the Union or any employee within thirty (30) days after it is posted, otherwise it shall be assumed to be correct. [Identical to the parties' original proposals Agreed to by the parties on August 5, 1961.] (F) The Union shall be advised of all employees affected in case of a lay-off The employees who are laid off and who desire reemployment shall advise the Company's personnel department in writing of their address and at the same time shall advise the Union Secretary of their address. In case they move and still desire reemploy- ment, they shall each time they move advise the Company and the Union Secretary of their correct mailing address. [Agreed to by the parties on August 5, 1961.] (G) The Company during the twelve months' period following the lay-off of any employee shall send notice by registered letter, certified mail, or telegram if it TAYLOR FOUNDRY COMPANY 795 desires to recall such employee, a copy sent to the Union, such notice to be directed to the last known address of the employee. The mailing of such registered letter, or letter by certified mail, or the delivery of such telegram to the telegraph company shall be all that is required of the Company other than to give copies to the Union. The recalled employee shall communicate with the Company immediately follow- ing the receipt of any such telegram or letter recalling him to work and at least not more than seven (7) days after the mailing of the notice of recall or the sending of the telegram and shall advise when he will report to work, which date shall be as early as possible but not more than fourteen (14) days after the mailing of the recall notice or sending of the telegram. It shall not be necessary to comply with this Paragraph (G) after twelve months have elapsed since the employee was laid off. [After modification by the Respondent providing for 12-month layoff retention rights for journeymen and for 6-month layoff retention rights for other employees on September 9, and after the Union's modification proposing 18-month general layoff retention rights, the parties by September 19 agreed to this proposal.] (H) Employees who fail to communicate with the Company within the seven- day period or fail to report within fourteen days as provided in Paragraph (G) of this Article VII shall lose their seniority. [Agreed to by the parties on November 8, 1961.] (I) Employees covered by this Agreement who are inducted into or enlist in any branch of the military service of the United States shall maintain their full seniority rights during the period of such service and for such other period as is provided by law. [Identical to the parties' original proposals-Respondent questioned the applica- tion of this clause with reference to physical abilities of the employees involved. Agreed to by the parties by October 7, 1961 ] ARTICLE VIII-INJURIES SUSTAINED IN THE COURSE OF EMPLOYEE'S EMPLOYMENT Employees who are injured during working hours at the plant of the Com- pany will be taken by the Company to the Company's physician for examination or treatment. If after the examination by such physician it appears that such employee sustained only minor injury and is able to work for the remainder of the day, such employee will be brought back to the plant by the Company and put back to work. In such an event he will be paid for the time that he is at the doctor's office. In the event the injury sustained is found by the doctor to be serious so as not to permit the employee to continue work for that day, such employee shall be paid for the time up to the injury, and shall look to the Workmen's Compensation carrier for pay for the time that he is off [No agreement was reached by the parties ] ARTICLE IX-VISITS TO THE PLANT BY UNION REPRESENTATIVES With the consent of Management, the Business Representative or the Inter- national Representative of the Union may have access to the premises of the Company during working hours for the purpose of investigating grievances. Either the Business Representatives or the International Representative of the Union may interview employees on the Company premises prior to the beginning of the em- ployee's shift, during the noon hour, or after the plant closes in the afternoon. [The Respondent proposed an article XI as a substitute for the Union's proposal on September 5, 1961, and included the same proposal in its subsequent October 7 and November 8 proposals. No agreement was reached by the parties ] ARTICLE X-SHOP CONDITIONS AND GENERAL RULES (A) The Company shall at all times provide safe and sanitary working con- ditions and shall furnish cool drinking water. Floors, lockers, toilets and washrooms shall be kept in a dry, clean and sanitary condition, lighted and heated, all in the best manner consistent with plant facilities. The Company and the Union agree to cooperate in every reasonable manner to eliminate all unsafe practices and conditions. [Substantially similar to the Union's proposal. This Respondent's proposal was agreed to by the parties by November 8, 1961.] (B) All employees covered by this Agreement shall be paid weekly. [Substantially similar to the parties' original proposals. Agreed by the parties by October 7, 1961.] (C) Provided that the Company is given at least one week's notice, it agrees to grant a leave of absence without pay to one employee covered by this Agreement 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who may be designated from time to time by the Union to attend Union meetings and conferences or to transact any other necessary business. [The parties agreed to the Respondent's proposal on November 1, 1961.] (D) Any employee covered by this Agreement may be granted a leave of absence up to thirty days without pay by the Company on account of ill health, personal business or for any other good cause, if plant conditions will permit. The employee would also have the right to extend the leave for a reasonable length of time. Should any employee on leave of absence engage in any other employment without having first secured the consent of both the Company and the Union, he shall lose his seniority. [The parties agreed to the Respondent's proposal on November 1, 1961.] (E) Employees who are entitled to vacation pay shall receive their checks at noon on Saturday after the vacation period if they call for them, otherwise on Monday following the vacation period. [No agreement was reached by the parties.] (F) The Company and the Union have worked out apprenticeship standards for the training of apprentices which the Company agrees to follow. [The parties agreed to Respondent's proposed apprentice program in November 1961. The parties did not agree to the starting or progressive rates of the apprentices.] (G) The Union shall be advised of any and all employees effected in case of a lay-off. Employees who are to be laid off will be given three working days' notice of the lay-off, or, at the option of the Company, any employee to be laid off may be paid three days' pay in lieu of three days' notice. Employees who desire to resign shall give at least three working days' notice to the Company before their resignation shall be effective. [Proposed by the Respondent on November 4, 1961. Substantially similar to Union's proposal. Agreed to by the parties on November 4, 1961.] (H) The Company agrees that the Union may use the time clock for posting notices of Union meetings. [Proposed by the Union on November 4, 1961. Agreed to by the parties on November 4, 1961. On August 10, the Respondent had agreed to a Friday payday, whether or not the employees worked on Saturday. Thereafter, payday was inter- twined with overtime and workweek issues, and there was continued absentee or reporting to work problems relating to Saturday work. The Respondent proposed on November 17, 1961 a provision reading as follows: The Company will pay its employees on Friday for the workweek ending the preceding Friday unless work is to be performed by substantially the entire working force on Saturday, in which event the Company will pay its employees on Saturday for the preceding work week. The parties also agreed (not reduced to writing) prior to November 8, 1961, that: The Company further agrees that the Union may use a portion of the Compan The Company further agrees that the Union may use a portion of the Company's bulletin board which shall be set apart for union use for the posting of seniority lists and overtime received and lost lists as the Company may desire. Such additional notices as the Union wishes to post on this portion of the bulletin board may be included. The parties also agreed (not reduced to writing) that the office of Respondent's attorney would type agreement (contract) and that the Union would furnish the paper for reproduction of copies of the agreement for distribution to the employees.] ARTICLE XI-PHYSICAL EXAMINATIONS The Company shall have the right at any time to require any of its employees to report to the Company's physician for a physical or mental examination. Any employee so examined who does not have the physical or mental ability to perform all of his assigned duties in a satisfactory manner shall be discharged. [No agreement was reached by the parties.] ARTICLE XII Unless other provisions of this contract provide otherwise, neither the Company nor the Union shall be obligated to negotiate or bargain or any matter of any nature whatsoever not covered by the provisions of this Agreement during the life of this Agreement. [No agreement was reached by the parties. The Respondent agreed on October 7 to modify this article to read as follows: TAYLOR FOUNDRY COMPANY 797 Unless other provisions of this contract provide otherwise, neither the Company nor the Union shall be obligated to negotiate or bargain on any matter of any nature whatsoever not covered by the provisions of this agreement during the life of this agreement; provided, however, that this clause shall not apply in the event a new job is created which would require the negotiation of a new classification definition and wage rate.] ARTICLE XIII It is understood and agreed that the Company shall have the right, without any negotiations with the Union, to close down the plant permanently and cease opera- tions at any time. In the event the plant is closed down as above provided, this contract shall immediately terminate upon the closing down of the plant. Otherwise this contract shall remain in full force and effect for a period of one year after the date hereof. If the plant is closed down, the Union shall be given fifteen days' notice thereof. [Agreed to by the parties on October 5, 1961. Luna indicated on August 5 that he desired that the contract provide "The contract shall be binding upon the suc- cessors, assigns and legal representatives of each of the parties hereto." [The Union indicated basic agreement on August 5 to the Respondent's original proposal concerning the right to close the plant down. On September 16 the parties again discussed and the Union agreed as before if the word "permanent" were added as set forth above. The Respondent, by letter, on September 19 summarized the agreement (substantially as set out herein) but minus the word "permanent." Luna again 'objected on September 23, and the Respondent modified the clause to read as above.] ARTICLE XIV No provision in this contract shall prevent the owner or owners of the Company from selling or disposing of the business and assets of the Company. [Originally part of Respondent's proposal article XIV-see Appendix B. As a separate article proposed by Respondent on October 5, 1961. General Counsel's Exhibit No. 24-Respondent's October 7 contract proposals indicates agreement by the Union. General Counsel's Exhibit No. 35-Respondent's November 8 proposal indicates lack of agreement by the Union. The evidence does not otherwise reveal which is correct.] ARTICLE XV The Company will not subcontract any manufacturing or fabricating of items, parts or machinery which it presently manufactures unless the establishment doing such contracting is able to and does manufacture, fabricate and or deliver said items to the plant of the Company in Wichita Falls at a unit cost less than it costs the Com- pany to manufacture or fabricate the same item, part or machinery except in case of an emergency. [No agreement was reached by the parties. The Respondent's original proposal- see Appendix B, article III(A), referred to contracting. On August 19 and 21 the Respondent proposed a clause reading as follows: The Company in its discretion may contract or subcontract any work which in its judgment should be contracted or subcontracted. Thereafter on October 25 Respondent proposed a clause as follows: The Company will not subcontract any manufacturing or fabricating of items, parts or machinery which it presently manufactures unless the establishment doing such subcontracting is able to manufacture, fabricate and or deliver said items to the plant of the Company in Wichita Falls at a unit cost less than it costs the Company to manufacture or fabricate the same item, part or ma- chinery, except in case of an emergency. Subcontracting shall not be construed to mean the purchase of items, parts or machinery which are normally offered for sale to the public by another manufacturer, or by a jobber or dealer. And on November 8 the Respondent proposed the article set forth herein as article XV.] ARTICLE XVI (A) Except in the event there is a utility failure (by which is meant a failure of the electrical, water or gas supply to the plant), a breakdown of machinery, negli- gence of an employee, or an act of God preventing the usual operation of the plant, employees reporting for work on their regular shift shall be paid a minimum of 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD two hours' pay at the prevailing rate if the Company is not able to provide work for this period of time. [Proposed substantially by the Respondent on November 4, 1961, except as to the reference to the "negligence of an employee." The Union committee indicated agreement on November 4, 1961.] (B) Employees called back to work after having left the Company premises at the end of their shift be paid a minimum of two hours ' pay at the prevailing rate. [Agreed to by the parties on November 4, 1961.] ARTICLE XVII-ABSENCE OF EMPLOYEES FROM WORK When an employee covered by this Agreement is absent from work on account of illness or any other good cause, he shall notify his foreman by telegraph, telephone, or U.S. mail as early as possible but within a period of not more than forty-eight (48) hours after he fails to report for work. Failure to do this shall justify such employee's discipline or discharge. Any employee who is guilty of habitual absence may be subject to discipline or discharge. [No agreement was reached by the parties. The Respondent's original proposal contained an unauthorized strike clause-see Appendix A, article XII. On October 5, Respondent withdrew its unauthorized strike clause and substituted a clause which read as follows • Any employee or group of employees who leave the plant of the Company during regular working hours, except for sickness or by reason of an injury, without approval of the Company shall be subject to discharge. This latter proposal was omitted from the Respondent's November 8, 1961, proposal, but article XVII set out herein was included.] ARTICLE XVIII-WAGE RATES The wage rate schedule for the job classification shown in this contract is set out on Exhibit ------, attached hereto and made a part of this agreement. Such rates shall be effective on Monday, November ------, 1961. [No agreement was reached by the parties. The Respondent's continuing proposal after wage rates were discussed in September was that of current wage rates. The parties exchanged proposals relating to job classifications definitions, and apprentice program and reached basic agreement, generally adopting the Respondent's proposals excepting as to wage rates and apprentice starting and progressive rates to which there was no agreement Respondent's Attorney Otis Nelson on November 4 asked Luna if he objected to Respondent paying over the minimum. Luna stated that he did not desire such a provision, but would not oppose one.] ARTICLE XIX This contract shall be in full force and effect for a period of one year from date, and shall at the expiration of that period , unless otherwise agreed to in writing by the parties , then terminated. EXECUTED this ---------- day of November, 1961. TAYLOR FOUNDRY COMPANY, By ------------------------------ (L J TAYLOR, Ownei ) LODGE No. 1476, INTERNATIONAL ASSOCIATION OF MACHINISTS, By ----------------------------------- ----------------------------------- ( Committee) (C F LUNA, Business Representative) [Miscellaneous comment added by Trial Examiner-Respondent on October 28 proposed to assign extra work to employees as an offset to pay lost while on jury duty, and on October 28 offered to pay the two extra overtime days necessitated in the 1 week of changeover relating to changes in payday. Respondent also proposed on September 23 but withdrew on October 5 a proposal relating to the Respondent's right to optionally retire an employee at the age of 65. The Union had counter- proposed compulsory retirement for employees at the age of 65.]