Hollywood Brands, Inc.

304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner attempt to cause John I. Paulding, Inc., to discriminate against any employee in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any manner restrain or coerce employees in the exercise of the right to self-organization , to formrlabor organiza- tions, to join or assist any labor organization, to bargain collec- tively through. representatives of their own choosing, and to en- gage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any and all of such activities, except as such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a) (3) of the Act, as amended. INTERNATIONAL UNION, UNITED AUTOMOBILE, AERO- SPACE , AGRicu TIIRAL IMPLEMENT WORKERS OF AMERICA (UAW), AFL-CIO, Labor Organization. Dated---------------- By------------------------------------- (Representative ) (Title) LOCAL 899, INTERNATIONAL UNION, UNITED AUTO- MOBILE, AEROSPACE, AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW), AFL-CIO, Labor Organization. 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, 24 School Street, Boston, Massachusetts, 02108, Telephone No. Lafayette 3-8100, if they have any question concerning this notice or compliance with its provisions. Hollywood Brands, Inc. and United Bakery & Confectionery Workers Local 441-B. Case No. 15-CA-2103. April 25, 1963 DECISION AND ORDER On January 29, 1963, Trial Examiner Lee J. Best issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Intermediate Report. There- 142 NLRB No. 25. HOLLYWOOD BRANDS, INC. 305 after, the Respondent filed exceptions to the Intermediate Report and a supporting brief, and the General Counsel filed exceptions to the Intermediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Rodgers and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings rare hereby affirmed. The Board has considered the entire record in this case, including the Intermediate Report, the exceptions, and brief, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner with the modifications stated below.2 ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner with the following modifications : 1. The following paragraph shall be inserted after 1(a) of the Recommended Order : (b) Cease and desist from making any changes with respect to rates of pay, wages, hours of employment, and other conditions of employment in the bargaining unit described herein, without prior consultation with Retail, Wholesale and Department Store Union, AFL-CIO, and/or its agency subdivision, United Bakery & Confec- tionery Workers Local 441-B. 2. The following paragraph shall be substituted for paragraph 1(b) of the Recommended Order : 1 Although Member Rodgers concurs in the finding that Respondent engaged in bad-faith bargaining and unlawfully granted the wage increase of July 9 , 1962, in violation of Sec- tion 8 ( a) (5), he would not find that Respondent further violated this section of the Act by refusing to furnish the Union-the bargaining agent for the Montgomery , Alabama, plant employees only-payroll information and other data pertaining to employees at Respondent's Centralia, Illinois, plant. 2 Respondent contends that it did not refuse to furnish the Union with "payroll Informa- tion and other pertinent data" because the Union made no such request and asked only that it be permitted to "look at the books" of the Respondent We find no merit in this contention. The stipulated record of the meeting of April 17, 1962 , shows that. (1) The union representative asked "to look at the books to determine what the parallel wages are" at the Respondent's Centralia and Montgomery plants ; and (2 ) the Respondent representa- tive clearly indicated his understanding that the Union was requesting wage data by the following statement : "Let's see now , what you want. You want to look at the [ Centralia] pay records . . . and you want to look at the [ Montgomery ] pay records . . . to verify the fact that they've got the same pay °" As the record shows that the Union 's request for wage information at both plants followed Respondent ' s statement that it would not give its Montgomery employees a raise before one was given to its Centralia employees, we find, contrary to the dissent on this issue , that the Union was justified in extending its request to Centralia although it was tho bargaining agent for only the Montgomery em- ployees As it is well established that an employer must comply with union requests for wage data as part of its obligation to bargain in good faith , we agree with the Trial Examiner that the Respondent violated Section 8(a) (5) of the Act by refusing to furnish such data to the Union herein. See Oates Bros., Inc., 135 NLRB 1295; and Clegg Afachsne Works, 129 NLRB 1243. 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 3. The following paragraph shall be inserted before the first para- graph of the notice : WE WILL NOT make any changes with respect to rates of pay, wages, hours of employment, and other conditions of employ- ment in the bargaining unit described herein, without prior con- sultation with Retail, Wholesale and Department Store Union, AFL-CIO, and/or its agency subdivision, United Bakery & Confectionery Workers Local 441-B. 4. The following shall be substituted for the union name in the first paragraph of the notice : Retail, Wholesale and Department Store Union, AFL-CIO, and/or its agency subdivision, United Bakery & Confectionery Workers Local 441-B. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding brought under Section 10(b) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq. (herein called the Act) was heard be- fore Trial Examiner Lee J. Best at Montgomery, Alabama, on October 1, 1962, with all parties represented. Based upon a charge filed on June 6, 1962, by United Bakery & Confectionery Workers Local 441-B (herein called the Union or Charg- ing Party), the General Counsel of the National Labor Relations Board issued a complaint on August 10, 1962, which was amended on August 16, 1962, alleging that Hollywood Brands, Inc. (herein called the Respondent) has engaged in and is en- gaging in unfair labor practices proscribed by Section 8(a)(1) and (5) of the Act. The principal issues litigated were whether the Respondent (1) refused to furnish pertinent information and data from its records with respect to wages paid to its employees; (2) unilaterally changed existing wage rates without negotiating with the Union; and (3) refused to bargain in good faith with the Union as exclusive representative of its employees in the unit found to be appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. The Respondent filed an answer to the complaint admitting allegations with re- spect to commerce, admitting that it refused a request of the Union to examine its books, and admitting that certain wage increases were unilaterally put into effect under conditions not constituting unfair labor practices within the meaning of Sec- tion 8 (a)( I) and (5) of the Act. All parties were represented by counsel, afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues involved, to present oral argument on the record, and to file written briefs with the Trial Examiner. Oral argument and written briefs submitted by counsel for the General Counsel and the Respondent have been given due consideration. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. BUSINESS OF THE RESPONDENT Hollywood Brands, Inc., is a corporation organized and existing under and pursuant to the laws of the State of Minnesota, having plants and places of business in Cen- tralia, Illinois, and Montgomery, Alabama, where it is engaged in the manufacture of candy.' The Montgomery plant of Respondent is a division of Hollywood Brands, Inc., sometimes called Hollywood Nut Products Co., and Hollywood Candy Co. 1 Only employees at the Montgomery, Alabama, plant are Involved in this proceeding. HOLLYWOOD BRANDS, INC. 307 During the calendar year 1961 , which period is representative of all times material herein, the Respondent in the conduct of its business operations purchased goods' and materials valued in excess of $50,000, which were shipped to its Montgomery plant in interstate commerce from points outside the State of Alabama; and during the same representative period sold and shipped directly from its Montgomery, Alabama, plant to points outside that State products valued in excess of $50,000. I find, therefore, and it is admitted, that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Retail, Wholesale and Department Store Union, AFL-CIO, and its local subdivi- sion, United Bakery & Confectionery Workers Local 441-B (herein called the Union) is a labor organization within the meaning of Section 2(5) of the Act, existing in whole or part for the purpose of representing employees in dealing with employers concerning labor disputes, grievances, and the negotiation of collective-bargaining agreements with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. III. THE APPROPRIATE UNIT All production, maintenance, shipping and cleaning employees of the Respond- ent's Montgomery, Alabama, candy manufacturing plant, excluding office employees, executives, watchmen and guards, truckdrivers, salesmen, foremen, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bar- gaining within the meaning of Section 9 (b) of the Act. IV. THE UNFAIR LABOR PRACTICES A. Background information The headquarters or home office of the Respondent is located in Centralia, Illinois, where its principal corporate officials and board of directors reside in proximity to its parent manufacturing plant. The principal officers are President F. A. Martoccio and Executive Vice President C. R. Martoccio, who establish and control overall operating policies for the corporation. The Montgomery, Alabama, plant (Holly- wood Nut Products Co.) was established in the early part of 1947, and placed under the supervision of Vice President Ray Harms as general manager. On or about July 19, 1947, Executive Vice President C. R. Martoccio published a wage policy letter pertaining to the Montgomery plant, as follows: Hollywood Nut Products Co., a Division of Hollywood Brands, Inc., has been in operation in the City of Montgomery for approximately six months. In the early stages of our operations, as in all new ventures, it was necessary to assemble and train personnel for our type of work. The management of Hollywood Brands, Inc., now feels that this training period has progressed to the point where people employed in its Montgomery Plant are able to perform their work in a comparable manner with those people employed in its other manufacturing plants. In keeping with the policy of Hollywood Brands, Inc., in paying comparable wages in all of its plants, many of you will find increases in wages included with this pay check. The rate per hour you are now making is the same hourly rate paid by Hollywood Brands, Inc., in its other candy manufacturing plants for the same work you are doing. The Company will expect you to perform work in a manner equally efficient with its other operating units so that production in the Montgomery Plant can be maintained on an equal basis with its other plants. Very truly yours, HOLLYWOOD BRANDS, INC., (S) C. R. Martoccio, C. R. MARTOCCIO, Executive Vice President. B. Union representation at Montgomery plant Pursuant to a representation election 2 held under auspices of the National Labor Relations Board on May 4, 1960, Retail, Wholesale and Department Store Union 2 See Case No 15-RC-2089 (not published In NLRB volumes). 712-548-64-vol. 142-21 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was duly elected and certified on May 12, 1960, as exclusive bargaining representa- tive for all employees of the Respondent in the aforesaid appropriate unit at its Montgomery, Alabama, plant. Thereafter the Respondent entered into a written collective-bargaining agreement with the Union,3 as follows: AGREEMENT In consideration of the mutual promises hereinafter recited between Holly- wood Brands, Inc., hereinafter called the employer, and Retail, Wholesale, and Department Store Union Affiliated with the A.F.L.-C.I.O. or its successor, and the United Baking and Confectionery Workers Union Local Number 441-B, hereinafter called the union, which, in an election held by the N.L.R.B. on May 4, 1960, was selected by a vote of 79 for as opposed to 74 against and duly certified as the representative for the purpose of collective bargaining with respect to rates of pay, wage and hours of employment for all employees of the employers' Montgomery, Alabama, candy manufacturing plant who are certified by the N.L.R.B. in the above election as the bargaining unit, said em- ployer and union agree as follows: 1 Any individual employee or group of employees shall have the right at any time to present grievances to the employer. Membership or non-membership in the union shall be at the option of each employee without discrimination or intimidation by the employer, the union or any member thereof. Solicitation for membership in the union shall not be done during working hours. 2. The minimum wage rate shall be as follows: Male Employees- Starting pay for first 60 days________________________ $1.10 per hour After first 60 days_________________________________ $1.54 to $1.56 per hour Female Production Employees- Starting pay for first 60 days________________________ $1.00 per hour After first 60 days_________________________________ $1.20 per hour Warehouse and Clean Up- Starting pay for first 60 days work___________________ $1.00 per hour After first 60 days_________________________________ $1.31 per hour Maintenance- Maintenance employees_____________________________ $1.80 per hour 3. The employer shall have the exclusive right to, at all times, change, modify or cease its operations, processes or production, in its discretion, and in the event of such changes, modification or cessation of operations, processes or production, the employer shall be the sole judge of all factors involved, includ- ing (but not limited to) the efficiency, usefulness and practicability of machinery, processes, location of business and personnel The union will not interfere in any way with the sales policies of the employer or with its source of supplies of raw materials, equipment, supplies, power or other articles required by the employer in its unlimited discretion. 4. When work is available the regular work week shall be forty hours, between Monday morning and Sunday night, inclusive. All work done in excess of forty hours in any one week shall be paid for at the rate of time and one-half. The term "employee" shall mean only those employees who are certified by the N.L.R.B. as the bargaining unit. 5. The employer will allow the following paid holidays. New Year's Day Thanksgiving Day Memorial Day (May 30) Christmas Day Independence Day Labor Day 3 This agreement expired on October 15, 1961. HOLLYWOOD BRANDS, INC. 309 All hourly employees on the payroll shall be paid the regular rate of pay of eight hours per day on each of the aforesaid six holidays. In addition, for any work performed on the aforesaid six holidays, the employees shall be compen- sated at the regular rate of pay. Holidays shall be on the days nationally celebrated. To qualify for the holiday pay, the employee must have worked his regularly scheduled shift the day before and the day after the holiday except where the employee is then on regular vacation or on authorized leave of absence not exceeding one week. 6. (a) The employer shall allow vacations of one week to each employee who has had from one to five years service, and two weeks to employees with more than five years continuous service. (b) The employer shall set the date for the vacations. (c) Vacation pay shall be equivalent of forty hours per week at the regular rate of pay. 7. The direction of the work and the selection, retention , promotion and transfer of employees shall lie with the employer. All employees shall observe rules and regulations made by the employer for the conduct of the plant operation. Any employee shall perform any service at any time in the plant which he is required to perform and which, in the judgment of the employer he is qualified to perform. 8. Any employee promoting, aiding, abetting or participating in any "wildcat" strike against the employer shall be immediately discharged. A "wildcat" strike within the meaning thereof is a strike, work stoppage, slow-down or wilful interruption of production without written notice by responsible officers of the union having been given to the employer. 9. No lockouts, boycotts, strikes, stoppage, slow-downs, or other such inter- ruptions of work shall be permitted by the union during the life of this agreement. 10. The employer shall provide health and accident insurance for each employee and also furnish: (a) A one thousand dollar life insurance policy for each employee who is under the age of 65 years. (b) A five hundred dollar life insurance policy for each employee who is over the age of 65 years. 11. If during the term of this agreement, any dispute shall arise between the employer and the union, or between the employer and an employee or em- ployees respecting the meaning or application of the provisions of this agree- ment, there shall be no strike stoppage of work, slow-down or wilful interrup- tion of production on account of such dispute but earnest effort shall be made to settle and compose such dispute immediately and in the following manner: (a) The union or aggrieved employee or employees shall file with the em- ployer a statement in writing of the dispute within five days of the date of the occurrence giving rise to the dispute, and an effort shall be made to solve such dispute through negotiation and discussion between the employer and the union or the aggrieved employee or employees. (b) If, thereafter, no settlement is agreed upon, the union may, at its option, terminate this agreement upon giving thirty days notice in writing of its in- tention to do so. Such notice shall be given by registered mail addressed to the employer at 8 Lafayette Street, Montgomery, Alabama. 12. In cases of increase or decrease of forces, discharges, lay-offs, promotions and demotions, the employer will give due regard to such factors as length of service, knowledge and ability. If, in the opinion of the employer, the other 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD factors are equal, length of service will govern. The employer shall have the right to designate a working foreman on any shift it may deem necessary. Such working foreman will not be a member of the bargaining unit during his work in such capacity. 13. This agreement contains the whole of this agreement between the parties and there are no other agreements, representatives or inducements not expressed herein. This agreement shall be effective as of the date hereof and shall con- tinue in force up to October 15, 1961 unless terminated sooner by the union under paragraph eleven hereof. IN WITNESS WHEREOF, we have hereunto set our hands and seals this 24th of April, 1961. C. Proposals for a new agreement Prior to expiration of the foregoing collective-bargaining agreement, the Union by letter dated September 15, 1961, notified the Respondent that it desired to reopen and make changes in the contract with respect to wages, hours, and working condi- tions. By letter of October 25, 1961, the Union proposed certain changes in the collective-bargaining agreement, and requested that the Respondent meet and negoti- ate with the Union concerning (1) an arbitration clause to be established in the contract; (2) a seniority and better working conditions clause to be established; (3) all jobs to be classified; (4) a notice of 3 days to be posted before changing work schedules; and (5) a substantial wage increase for all employees. In reply thereto, the Respondent by its attorney, Fred Ball, Esq., on October 27, 1961, posted a letter to the Union, as follows: Mr. Harms has referred to me your letter of October 25th with reference to proposed changes in the agreement and asking for a time next week for a meeting. If I am correct, there is no agreement in effect at the present time. The agreement which was made earlier in the year expired on October 15, 1961. With reference to the five proposals for discussion in the meeting, it would only be fair for me to tell you now that the company is not willing to agree to any of these five items. If you want to propose a new contract for a period of one year identical with the one which has expired, that could be done without the necessity of a meeting. I realize that it is the duty of the company to meet and negotiate and am willing to do so, but at the same time it seems to me that it would be a waste of your time as well as ours to meet for the purpose of discussing the five points, none of which are agreeable to the company. However, if you insist upon meeting it will have to be at a date later than next week in view of the fact that Mr. Helms who, as you know, sits with me will not be available next week. If you want to suggest a later date I will be glad to see what we can do and let you know. The current collective-bargaining agreement expired on October 15, 1961, and thereafter the negotiating parties held three bargaining sessions on November 19, 1961, January 23 and April 17, 1962, respectively, in an effort to reach a new agree- ment. The Respondent furnished a court reporter to make a complete and accurate transcript of all proceedings therein, which was introduced in evidence by stipula- tion of the parties. At all meetings the Respondent was represented by Attorney Fred Ball and Personnel Director J. D. Helms. From the beginning of negotiations, the Respondent proposed to renew the expired contract in identical language, and consistently refused to vary any terms or conditions thereof, except to the extent that changes in the Federal minimum wage law might require a restatement of minimum wage rates to employees. At the first two meetings, the chief negotiator for the Union was Representative C. T. Daniel. With respect to the grievance procedure provided in article 11 of the old contract, Mr. Daniel proposed the submission of grievances to an impartial umpire or arbi- trator upon failure of the parties to reach an agreement. As to that proposal, Attorney Ball with finality said: "Well, I've explained to you that we are not going to agree to some outsider coming in and making any decisions concerning our opera- tions. We're just not willing to do it, period." The Union next proposed a revision of articles 2 and 12 of the old contract to establish more definite job classifications and seniority provisions. This subject was postponed at request of Attorney Ball that the Union prepare and submit a classifications list for his consideration and later discussion. The Union next proposed that the contract contain a provision for HOLLYWOOD BRANDS, INC. 311 notice to the Union before changing work schedules . Respondent contended that it was already giving as much notice as possible , but refused to include in the con- tract any provisions that would make any notice obligatory . The Union next pro- posed to include in the contract some definite and flexible rules concerning sick leave whereby an employee would not lose seniority upon returning to work after an ex- tended period of disabling illness. With respect thereto Attorney Ball said: "I'm not going to agree to put that into the contract , but I will talk to Mr. Harms 4 about it and see if something more satisfactory to the employees can be worked out." Finally the Union proposed an overall wage increase of 25 cents per hour, and Attorney Ball replied : "Well, I have already written Mr . Daniel that we were not going to give any pay increase ." In addition thereto, Attorney Ball explained that it was company policy to pay the same wage rates at the Montgomery plant that were paid at the parent plant in Centralia , Illinois, and said . "You see, that's one reason that we couldn't even think about a pay raise , because as I understand it, we do keep the two companies on the same pay scale. Whether they have done it always, I don't know, but I know they are doing it now-at least, that's what they tell me." In summarizing the situation , Attorney Ball said: "We have worked under a con- tract now that we have had, and it has proven to be one that has worked out all right, and I think it is good enough like it is; and I hope you all will decided to let well-enough alone, and renew this contract and let it go." At the second meeting on January 23, 1962, most of the discussion was devoted to unsettled grievances , and the Union persisted in its demands for the arbitration of grievances, job classifications, seniority provisions , and notice before making changes in work schedules , but the Respondent refused to make any changes whatever in the old contract . In conclusion , Attorney Ball said: "Well , I'm just hoping that you will drop me a note and say `dear Mr. Ball, please rewrite the contract as to 5 October,' and send it to me, and we'll get it signed up." At the third and final meeting for negotiations on April 17, 1962, International Representative John L. Parker appeared as chief negotiator for the Union. At that time the Union submitted to Respondent in writing proposals to be included in a new contract, as follows: 1. It is agreed that should any charge of violation of this Agreement , charge of discrimination, grievance or dispute arise at any time, the matter must be brought up within five (5) days after the alleged occurrence. Such matter shall be settled in the following manner: (A) Between the aggrieved employee and the foreman of the department in- volved, and if the employee is unable to settle his grievance at this point, he shall reduce it to writing; (B) Between the employee and the members of the Grievance Committee designated by the Union, and the superintendent and/or manager of the plant involved; (C) Between the representative of the International Union and the repre- sentative of the Employer involved; (D) In the event the dispute cannot be satisfactorily settled within ten (10) days after the matter has been brought up , then within ten ( 10) days it shall be appealed to an impartial umpire to be appointed by mutual consent of the Employer involved and the Union or, in the event the parties fail to agree, by the Director of the Federal Mediation and Conciliation Service, Washington, D C. The decision of the umpire shall be final and binding , and to be rendered within ten ( 10) days after submission to him. The salary and expenses incident to the services of the umpire shall be shared equally by the Employer involved and the Union. 2. There shall be no stoppage of work by the Union or its members or lock- outs by the Employers pending the hearing and determination of any dispute and conditions involved in the dispute shall remain the same during the hear- ing, and decision reached at any stage of the proceedings as herein provided shall be final and binding on both parties and shall not be subject to reopen- ing except by mutual agreement. 3. The Grievance Committee shall consist of not less than three (3) or more than five (5 ) employees of the plant who shall serve without pay as may be required unless meetings are called at the request of the Employer for official acts of the Grievance Committee in which event they shall be paid by the Em- ployer involved. 4. It is agreed by and between parties hereto that there will be no concerted failure to report for work , cessation or interruption of work, slowdown , strike 4 General manager of the Montgomery plant. 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or picketing or lockout during the term of this Agreement or during any period of time while negotiations are in progress between the parties hereto for the continuance or renewal of this Agreement. 5. The parties agree as part of the consideration of this Agreement that neither the International Union , the Local Union, nor any of its officers , agents or members, shall be liable for damages for any of the acts set forth above, provided that the union has not authorized such acts and that the Union co- operates in getting the employees to discontinue any of such acts and resume normal operations. 6. It is recognized that the Employer has the right to take disciplinary action, including discharge, against any employee who engages in any such unauthorized act or acts. SENIORITY 1. When for any reason the employee force is increased or reduced or promotions or demotions are made or vacancies occur, the oldest employee in terms of service will be given preference for any job he is qualified to fill, and such employees will be given a reasonable trial period on a new job before being disqualified . Qualifications under the seniority rule shall be determined jointly by the Employer and the Union. The oldest employee in point of service shall be given preference of shifts and jobs as vacancies occur, provided the efficiency of the operation is not retarded. "Rolling" shall not be per- mitted. When production is not running on full schedule, there shall not be any division or rotation of work and seniority shall prevail. 2 The last man laid off shall be the first man put back to work. It shall be the duty of all laid-off employees to notify their former Employer and the Union of any change of address Such Employer shall notify the Union and said employee of opening for laid-off employees . Such employee shall report for work within seventy-two (72) hours after notification. Such seniority to expire seven (7) months after day of lay-off. 3. Any employee with the approval of his Employer shall be allowed to learn a new job in the plant in order to qualify himself for promotion or advance- ment in the plant, but not in any manner which will hamper or retard the orderly process of the plant, provided it is in the usual line of advancement. Said employee in learning a new job must learn new job under the supervision of the employee in charge of that particular job at his present rate of pay. 4. The Employers agree that they will submit a complete seniority list to the Union upon the signing of this Agreement, and thereafter a list of new employees and separations at intervals of not more than five (5) weeks. SICK LEAVE It is agreed that an employee may need up to seven (7) months to recuperate from an illness or an injury. He shall maintain and accrue seniority during his absence. SCHEDULE AND REPORTING TIME 1. Shop schedules will be posted three days in advance. No major changes will be made in such schedules without notice except in cases of emergency. 2. The Employer shall notify each employee of any change in his next re- porting time before such employee leaves for the day. 3. When an employee is required to report for work, and does report for work as scheduled, he shall receive not less than four (4) hours work at the rate for the job for which he is called. The Employer may furnish other than the regular work done by the employee. ADDITIONAL PROPOSALS In the paragraph under Agreement of the present contract we wish to sub- tract or delete the numbers 79 and 74 and all words pertaining to these two numbers. Paragraph 3-delete: The union will not interfere in any way with the sales policies of the employer or with its source of supplies of raw materials , equip- ment, supplies, power or other articles required by the employer in its unlimited discretion. Paragraph 5-insert : The following days shall be considered as paid holidays: same holidays as in present contract . Delete the words employer will allow. We propose that if an employee is required to work on any of the above holi- HOLLYWOOD BRANDS, INC. 313 days, he shall be compensated at the rate of one and one-half ( 1½) times hir regular rate of pay. Paragraph 6-Vacations with pay shall be granted in accordance with length of continuous service and on the following basis : 1 to 5 years service, 1 week; 5 or more years service, 2 weeks. Delete from this paragraph the words `shall allow' in Section (a). In section (b) delete the entire section. In rejecting all proposals made by the Union , Attorney Ball made the following statements: And we told Mr. Daniels at that time that all the Company was willing to do was to renew this contract that we had last year . And that's still our position. Here's a Company that's been out there a good while, and I think that most of the employees are satisfied or they wouldn't be working there. And if we can't get along together, well then that's just unfortunate. We are not going to turn our business over to some third party to make decisions about it. Well there just isn't any more I've got to say about it, we're just not willing to do it. No sir, we're not willing to consider. No sir. As I said, this arbitration clause, this dispute clause , that's all we are willing to do on that , we'd like to have it just like it is; and the same way with the whole contract, I wrote you a letter and told you that we are not willing to make any changes in the contract but you said you wanted to meet and so we are here . But I mean, that doesn't change our position . This is what the Company is willing to do, is to renew this contract, and that's all. Now I don't know how many different ways I can say the same thing, but that's the Company's position. We are willing to renew this contract for a year from it's expiration date and that's all we are willing to do. You might say that; I've got a closed mind so far as this contract is concerned. Just like you got a closed mind; you want to change the contract. I got a closed mind; I want to leave it just like it is. Well, I've told you what our position is; we are willing to renew this contract and if you don't want to do that well there's no way we can force you to do it. But we're just spinning our wheels here; you're talking and I'm listening; and I'm telling you that this is what we are willing to renew. With respect to a wage increase, Attorney Ball stated: Now you understand Mr. Parker, that the wages here follow the wages at the other Company up in Illinois? Well, I know that the policy is a little unusual but this Company pays the same wages down here that the plant in Centralia pays. When Centralia gives a raise then they give a raise down here. In other words they keep these employees on a par although that probably is more favorable to the southern employees because well living is not too ex- pensive in Alabama as it is in Illinois, as a rule and I think that the Company has from time to time raised wages in Centralia, and when they do they raise wages here. But we are not going to-raise wages here and give these employees here more than they give the employees in Centralia. D. Refusal to furnish payroll data During the negotiations on April 17, 1962, International Representative Parker requested permission to examine the payroll records of Respondent at its Centralia plant for the purpose of comparing the wage rates at Montgomery with those at the Centralia plant. Respondent refused to comply with this request by letter of April 19, 1962, as follows: Re: Hollywood Brands, Inc. DEAR MR. PARKER: At our meeing on Tuesday, April 17th, you proposed a wage increase. I representing the company stated that it is not willing to grant a wage increase. We mentioned the fact that the employees had had a wage increase about a year ago. It was also mentioned incidentally that it was the company's policy here to keep its wages in line with those paid comparable em- ployees similarly engaged at Centralia, Illinois. You then asked to see the Centralia books and records and cited the General Aniline and Film Corporation case, 124 N.L.R.B. 1917, as authority for your right to see these records. I was not familiar with that case and stated to you that I would look at it and see if it supported your contention. I do not believe that the case you cite is applicable to the present situation nor does it support your request. Accord- ingly, the company declines to allow you to examine the records at Centralia. 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I believe that what you probably had in mind was the rule that where' a company states that it is financially unable to give a wage increase that the union then has a right to inspect the records to a certain extent in order to determine whether the contention is in good faith. The company has made no such contention in this case. Yours very truly, FB:KBD E. The unilateral wage increase After refusing in April 1962 to negotiate with the Union concerning any wage increase, Attorney Fred Ball on July 9, 1962, posted a letter by registered mail to the union representative, as follows: DEAR MR. PARKER: As you probably already know, Hollywood Brands, Inc. has a policy of giving its employees a wage increase at intervals of approxi- mately one year. It is also the policy of the company here to pay the same rates as are paid at the Centralia plant. A 3% wage increase effective July 9, 1962, was put into effect in Centralia and the company here plans to increase wages at this plant 3% effective July 9, 1962. Although our negotiations seem to have deadlocked and it is doubtful whether the company is under any duty to do so, nevertheless we are notifying you of the company's plan and request that if you have any objection to please let me hear from you immediately, and not later than Monday, July 16, 1962, stating any grounds of objection you may have to this proposed increase. Yours very truly, The Union replied thereto by letter of July 17, 1962, as follows: DEAR MR. BALL: After returning to my office after a one (1) weeks absence I am in receipt of your letter of July 9, 1962 stating you were in a position to give a 3% increase in wages. We are registering our objection as of this writing, and would appreciate the opportunity to sit down with you and the company to ascertain if this is an equitable amount and in what manner this increase will be distributed. Awaiting the earliest date you have available for this meeting. I remain, Very truly yours, JOHN L. PARKER. JLP/gl In further explanation of its desire to negotiate with respect to wage increases, the Union on July 19, 1962, posted a letter to Attorney Ball, as follows: DEAR MR. BALL: Your letter of July 18, 1962, stating that I did not give you any reason for my objection to the increase you plan to give the Hollywood Candy employees, was received with awe. We have no objection to the increase as such, and are most happy that the company is in a position at this time to give an increase. I thought I made our position quite clear. This increase regardless of the reason is a negotiating item. We are still the bargaining representative for these employees and as such are entitled to the right and privilege to help deter- mine in which manner this increase will be applied. If this explanation is not clear, please feel free to call me collect at FA 2-7462, and I will be most happy to discuss this matter with you at length. If you desire a meeting as I do , then let me know which dates you will be available. Yours very truly, JOHN L. PARKER. JLP/hg Notwithstanding objections by the Union and its repeated requests to negotiate concerning wage increases at the Montgomery plant , the Respondent unilaterally granted an overall wage increase of 3 percent to employees in the appropriate unit effective July 9, 1962. Concluding Findings From the entire record in this case it is crystal clear that the Respondent entered into negotiations for a new contract with a predetermination to renew the expiring HOLLYWOOD BRANDS, INC. 315 contract in its exact terminology and language, and to make no deviation from that position whatever. Its attorney merely listened to proposals from the Union, and gave them no consideration. Admittedly, his mind was closed to all proposals ex- cept his own initially made to renew the expired contract for 1 year under the exact terms and conditions provided therein. All proposals made by the Union with respect to the arbitration of unsettled grievances, seniority, job classification, sick leave, notice of changes in work schedules, wages, and other working conditions have been found by the Board to be matters concerning which an employer is re- quired by the Act to bargain in good faith with the certified exclusive representa- tive of its employees in the appropriate unit. Although Respondent recognized the Union as such bargaining representative in this case, it made not even a pretense of trying to reach an agreement of any kind. It merely took the unyielding position (not a bargaining position) that the old contract was the only thing it would enter into in the nature of a collective-bargaining agreement. By adopting such a posi- tion, I find that the Respondent refused to bargain in good faith with the certified exclusive representative of its employees in violation of Section 8 (a) (5) of the Act. The Respondent cannot avoid its duty to bargain collectively with the certified exclusive representative of employees in the appropriate unit by adopting or follow- ing a company policy with respect to wages, hours, and other terms and conditions of employment established by higher management at its Centralia, Illinois, plant. It must, nevertheless, bargain in good faith with the Union with respect to wage rates paid to employees in the unit at its Montgomery plant. This includes the duty to furnish the Union with payroll information and other pertinent data existing at the Centralia plant, which the Respondent has proposed to adopt as a basis for ,establishing wage rates in the unit represented by the Union at Montgomery. I find, therefore, that the Respondent refused to bargain within the meaning of Section 8 (a) (5) by denying such information to the Union. At its final meeting with representatives of the Union on April 17, 1962, and again by letter of April 19, 1962, the Respondent refused to negotiate concerning any wage increase for employees at its Montgomery plant. Nevertheless, without nego- tiating with the Union, the Respondent on July 17, 1962, posted a notice to em- ployees in the plant, as follows: NOTICE TO EMPLOYEES The Centralia plant management of this company has notified the manage- ment of the Montgomery plant that the Centralia plant is increasing its em- ployees' wages 3% effective July 9, 1962. As it is the policy of the management of the Montgomery plant to pay the same wage scale here as that which is paid at Centralia, there will be a 3% wage increase here effective July 9, 1962. The first pay checks which will include this increase will be issued on July 27, 1962. JULY 17, 1962. ----------------------------- (Vice President) I find, therefore, that the conduct of Respondent in unilaterally granting a wage increase effective July 9, 1962, without consulting the Union, as exclusive bargain- ing representative of its employees in the appropriate unit, constitutes a refusal to bargain within the meaning of Section 8 (a) (5) of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The conduct of Respondent set forth in section III, above, occurring in connec- tion with the operations described in section I, above, has an intimate and substan- tial relation to trade, traffic, and commerce between the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found that the Respondent since on or about October 27, 1961, has refused to bargain collectively with United Bakery & Confectionery Workers Local 441-B, as the representative of its employees, subject to the provisions of Section 9(a) of the Act, thereby engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act and interfering with, restraining, and coercing such employees in the exercise of the rights guaranteed in Section 7 of the Act, it will be recommended that Respondent cease and desist therefrom, and take certain affirmative action de- signed to effectuate the policies of the Act. It will be recommended that the 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent upon request, bargain collectively, as defined in Section 8(d) of the Act, with the Union as the certified exclusive bargaining representative of its employees in the unit herein found to be appropriate at its Montgomery, Alabama, plant, and if an understanding is reached, embody such understanding in a signed agreement. It will be further recommended that Respondent furnish and make accessible to the Union all pertinent payroll data and other records which it has proposed to use as a basis for establishing wage rates and other terms and conditions of employment at its Montgomery plant. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Hollywood Brands, Inc., is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. United Bakery & Confectionery Workers Local 441-B is a subdivision of Retail, Wholesale and Department Store Union, AFL-CIO, and is a labor organization within the meaning of Section 2(5) of the Act. 3. All production, maintenance, shipping, and cleaning employees of the Respond- ent at its candy manufacturing plant in Montgomery, Alabama, excluding office employees, executives, watchmen and guards, truckdrivers, salesmen, foremen, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. On October 27, 1961, and at all times thereafter material to this case, Retail, Wholesale and Department Store Union, AFL-CIO, including its agency subdivision, United Bakery & Confectionery Workers Local 441-B was and now is the certified exclusive bargaining representative of Respondent's employees in aforesaid appro- priate unit at its Montgomery, Alabama, plant. 5. By refusing at all times since October 27, 1961, to bargain with the Union as exclusive representative of its employees in the appropriate unit at Montgomery, Alabama, unilaterally granting an increase in wages to such employees effective July 9, 1962, and refusing to permit inspection of pertinent payroll records at Centralia, Illinois, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record in the case, I issue the following: RECOMMENDED ORDER Hollywood Brands, Inc., its agents, supervisors, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Retail, Wholesale and Department Store Union, AFL-CIO, and/or its agency subdivision, United Bakery & Confectionery Workers Local 441-B, as the certified exclusive bargaining representative of all employees in the unit herein found to be appropriate at its Montgomery, Alabama, plant. (b) In any manner interfering with, restraining, or coercing its employees and their exclusive representative in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act. (a) Upon request, bargain collectively in good faith with aforesaid labor organi- zation as the exclusive representative of all its employees in the unit herein found to be appropriate at its Montgomery, Alabama, plant, and when an understanding is reached embody such understanding in a signed agreement. (b) Furnish and make available for inspection by the Union all pertinent payroll data and other records proposed by Respondent as the basis of establishing wage rates, job classifications, or other terms and conditions at its Montgomery, Alabama, plant, including all such records maintained at its plant in Centralia, Illinois. (c) Post at its plant in Montgomery, Alabama, copies of the attached notice marked "Appendix." 5 Copies of said notice, to be furnished by the Regional 6If 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. If the Board's Order be enforced by a decree of a United States Court of Appeals, the notice will be further amended by substitution of the words "A Decree of the United States Court of Appeals, Enforcing an Order" for the words "A Decision and Order." WESTINGHOUSE ELECTRIC CORPORATION 317 Director for the Fifteenth Region, shall, after being duly signed by an authorized representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify in writing the Regional Director for the Fifteenth Region, New Orleans, Louisiana, within 20 days from receipt thereof, what steps the Respondent has taken to comply with this Recommended Order.6 a If this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for the Fifteenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE To ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL, upon request, bargain in good faith with United Bakery & Con- fectionery Workers Local 441-B, as the exclusive bargaining representative of all our employees in the unit herein found to be appropriate for the purposes of collective bargaining with respect to wages, hours, and other terms and condi- tions of employment, and if an understanding is reached embody such under- standing in a signed agreement. The appropriate unit is: All production, maintenance, shipping and cleaning employees at our Montgomery, Alabama, candy manufacturing plant, excluding office em- ployees, executives, watchmen, guards, truckdrivers, salesmen, foremen, and supervisors as defined in the Act. WE WILL, without prejudice to existing wage rates, furnish for inspection by the above-named Union all pertinent payroll data and other records used by us as a basis for establishing rates of pay and job classifications at our Mont- gomery, Alabama, plant, including such records and data now maintained at our plant in Centralia, Illinois. HOLLYWOOD BRANDS, INC., 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, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana, 70113, Telephone No. 529-2411, if they have any question concerning this notice or com- pliance with its provisions. Westinghouse Electric Corporation and Westinghouse Salaried Employees Association at South Philadelphia , affiliated with Federation of Westinghouse Independent Salaried Unions. Case No. 5-ISM--64. April 25, 1963 SUPPLEMENTAL DECISION AND ORDER On June 29, 1950, the Board certified the Federation of Westing- house Independent Salaried Unions as the bargaining representative of a unit of professional employees at the South Philadelphia works 142 NLRB No. 32.