Lamb-Weston, Inc.

798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to join or assist the aforesaid Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. M & S STEEL COMPANY, 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, 528 Peachtree-Seventh Building, 50 Seventh Street NE., Atlanta, Georgia, Telephone No. Trinity 6-3311, Extension 5357, if they have any question concerning this notice or compliance with its provisions. Lamb-Weston, Inc. and F. G. Lamb Co. and Teamsters, Chauf- feurs, Warehousemen & Helpers Union, Local No. 983, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America . Case No. 19-CA-2762. September 3,1964 DECISION AND ORDER On June 22, 1964, Trial Examiner Ramey Donovan issued his Deci- sion in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices within the meaning of the Act and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondents filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the exception noted below.' - I We do not adopt that portion of the Trial Examiner's Decision wherein he analogizes the required standard of diligence in bargaining to that relationship expected between a buyer and seller engaged in a commercial transaction . Nevertheless, we are of the opin- ion that, on the basis of standards set forth in the Act and customarily applied by the Board in such cases, the Respondent violated Section 8(a) (5) and (1) of the Act. We also note that the Trial Examiner has omitted from paragraph No 4 of the Con- clusions of Law reference to the unilateral wage increase imposed by the Respondents which he also found to be a separate violation of Section 8(a)(1) and (5) in the body of his Decision. We hereby amend paragraph No. 4 of the Conclusions of Law to correct this omission. 148 NLRB No. 85. LAMB-WESTON, INC. AND F. G. LAMB CO. 799 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts as its Order, the Order recom- mended by the Trial Examiner and orders that Respondents Lamb- Weston, Inc. and E. G. Lamb Co., their officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The above-mentioned Union filed a charge and an amended charge on October 25 and November 18, 1963, respectively. A complaint by the General Counsel, dated January 24, 1964, was thereafter issued. The complaint alleged violations of Sec- tion 8(a)(1) and (5) of the Act. In its answer, the Respondent denied the com- mission of any unfair labor practices. The matter was heard on March 17, 1964, in Pocatello, Idaho, before Trial Examiner Ramey Donovan. Briefs have been filed by the General Counsel and by the Respondent. Upon the entire record in the case, and from observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent Lamb-Weston, Inc., an Oregon corporation with its principal office in Weston, Oregon, operates a potato-processing plant at American Falls, Idaho, where it is engaged in the grading, sacking, packing, and sale of fresh potatoes and the freezing of potatoes into french-fried potatoes and related products. Respondent F. G. Lamb Co., an Oregon corporation with its principal office at Weston, Oregon, operates a warehouse and cold-storage plant at American Falls, Idaho, for the potato products of Lamb-Weston. The two aforementioned Companies, at all times material, were and are affiliated businesses with common control and management. The management formulates and administers a common labor policy for the two Respondents. During the past year, the Respondents, in the course and conduct of their business operations at American Falls, Idaho, sold and distributed products valued in excess of $500,000, of which products valued in excess of $50,000 were shipped to purchasers located outside the State of Idaho. In the same period, Respondents, at their American Falls opera- tions, purchased goods, materials, and services from outside the State of Idaho valued in excess of $50,000. Respondents are engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. The refusal to bargain Pursuant to a Board-conducted election, the Union was certified on March 1, 1963, as the collective-bargaining representative in an appropriate unit of Respondents' em- ployees. The appropriate unit consists of all production and maintenance employees employed by the Respondents at their potato processing plant and warehouse and cold-storage plant in American Falls, Idaho, including truckdrivers, warehousemen, and laboratory employees, but excluding office clerical employees, guards, pro- fessional employees, and supervisors as defined in the Act. The parties first met on March 20, 1963, in American Falls.' This first session was devoted to disposing of some employee grievances but the Union did submit a written contract proposal. 'American Falls and Pocatello are about 25 miles apart. Roughly, Boise is approxi- mately 230 miles distant from these two cities. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The next meeting was held on April 1. All meetings were held in American Falls. Although there was an occasional variation of one man or another, we can accurately describe the negotiating teams as consisting of, Hill, business representa- tive of the Union; Lott, secretary-treasurer of the Local Union; and two or three employee committeemen; Weston, attorney representing Respondents, who had his office in Boise; Fairchild, division manager of Respondents; Anderson, plant manager for Respondents; and Scott, the personnel manager. The evidence indicates that Hill was the chief union negotiator and Weston was the chief company negotiator. At the April 1 meeting, the Company explained that it was just getting its feet on the ground financially and that its plant was relatively new in the area. Using the union-proposed contract as a basis of discussion, the parties discussed various items. The Company said as to some items that they seemed to be all right and as to other items there was more discussion. There was a difference of opinion about the terms to be applicable to permanent and seasonal employees. In general, the Union wanted both groups of employees to be accorded the same fringe benefits and the Company believed that differentiation was called for .2 The question of paid lunch periods was also gone into, with the Company expressing the view that the cost involved was of material proportions. A tentative date for another meeting about April 15 was set, but, subsequently, due to the unavailability of Weston, the next meeting was not held until April 25. The April 25 meeting involved discussion of views on such items as the permanent and seasonal employees, paid lunch period, certain aspects of the Fair Labor Stand- ards Act's applicability to various operations, and the bonus system. The Company had a bonus system based on or related to attendance on the job. The Union wanted the bonus abolished as such and incorporated into a negotiated wage rate. At some point in the meeting Weston said that his time was valuable and if an agreement could not be, or was not, reached, he was wasting his time in coming over from Boise. There was some discussion of union security which the union proposal en- visaged in its union-shop clause. The Company said that it was opposed but sug- gested that union security be passed over at the time and that perhaps later it could be resolved in the course of trading on various points. During this meeting Hill advocated more frequent and longer bargaining sessions, including meeting at 10 a.m. and meeting for a full day and for several days in succession in order to reach a contract agreement. Both the April 1 and 25 meetings had commenced at 2 p.m. and had run for 21/2 or 3 hours. A few days after the April 25 meeting, the Union submitted wage proposals to the Company. Prior to that the Union's contract proposal had not included a wage schedule because the Union had not obtained a list of job classifications. The next meeting was held on May 13. The union negotiators appeared at 10 a in., the prearranged time, but no one from the Company was present. Hill tele- phoned the plant and spoke to Scott. Scott informed him that Weston had been de- tained and could not be present until 2 p.m. The parties then met at 2 p.m. They went through the various items of the proposed contract and reached agreement or did not disagree on many provisions. Weston stated, according to Hill, that there were apparently four items mainly in dispute, to wit, union security, fringe benefits of seasonal employees in conjunction with permanent employees' benefits, paid lunch periods, and wages. The meeting ended because Weston was not feeling well. A tentative meeting was discussed for later in May. Weston had previously advised the Union that he had scheduled a trip to Europe commencing in the first few days of June. The Union had a convention to attend for a week in June. Because the Union believed that a contract was close to realization, Hill was anxious to meet again before Weston left the country. Weston wrote to Hill on May 15 stating that he did not believe that he would be able to meet again before he left the country. He listed his various engagements and the dates thereof. Weston expressed the idea that "we can determine our positions on some of the remaining issues through correspondence." He stated that the principal items were: union se- curity; paid lunch periods; fringe benefits for seasonal employees as related to regular or permanent employees; application of Fair Labor Standards Act to certain depart- ments; wages; and length of contract. The letter then expressed the company posi- 2 Seasonal employees had been eligible voters and were part of the unit The nature of the Company's business had significant seasonal characteristics in view of the nature of the product with which it dealt LAMB-WESTON, INC. AND F. G. LAMB CO. 801 tions on the lunch periods, seasonal employees, wages, and union security.3 On lunch periods the letter said that it was an "extremely high cost item" and under pres- ent conditions the Company could not yield. On seasonal employees, it was stated that the Company did not feel that such employees should receive vacations since they were off 2 or 3 months a year, "some system of proration might be considered depending upon cost etc." Regarding union security, the Company's position was stated to be that "there must be some compromise on the union-security clause . particularly . as the election was won by a very small majority. This may be the issue that will create a deadlock unless you can see some type of compromise along the line we suggested in our counterproposal." 4 On wages, the letter stated that the Company was already above its competitors and that it saw no prospect of a wage increase. The letter concluded, "I would appreciate having your views, especially if any of the items can be compromised, and your suggestions in that regard." A week or so after the May 13 meeting, Hill telephoned Fairchild about another meeting in May. Fairchild said that it did not appear that Weston would be avail- able before he departed on his trip. Hill proposed that the parties meet during Weston's absence if it was necessary. Fairchild was agreeable to this suggestion. Subsequently, Weston telephoned Hill and said that he would not be able to meet, as had been tentatively arranged on May 13, before his departure from the country. Weston wrote to Hill on May 29 stating that he had been unable to work out a time to meet with Hill before he left on June 5. He stated that he had talked to Fairchild and had explained that if the Union insisted on meeting during Weston's absence, the Union should advise Weston's office and either Weston's son or Eberle from the office would attend the meeting. The opinion was expressed, however, that in view of Weston's familiarity with the situation, it would be better to await his return. Under date of June 4, Hill wrote to Fairchild referring to Weston's leter of May 29. Hill suggested June 14 for a meeting and the entire week of June 17 and referred to Weston's mention that his son or Eberle from his office would attend meetings be- tween the Union and the company people in Weston's absence By a letter also dated June 4, Weston wrote to Hill, stating that he had talked to Fairchild. Weston stated that the Company had now decided not to negotiate in Weston's absence, ex- pressing the view that a different course of action would confuse and delay the ulti- mate preparation of a contract. Weston requested, "In the meantime," an answer to his May 15 letter "so that some of the issues mentioned therein can be crystallized before we start again." On June 5, Fairchild answered Hill's letter of June 4, confirming "our telephone conversation today" to the effect that the Company could not meet until the week of July 15 by which time Weston would be back. Fairchild expressed the view that Weston could meet for 1 or 2 days that week and "we could have additional meetings that week in his absence." Hill, on July 2, 1963, replied to Weston's letter of May 15 regarding the six con- tractual items referred to by Weston in his letter. Hill stated that "I can see no change in the Union's position on the items that you mentioned in your letter." He then went on to refer to the resumption of negotiations in the week of July 15 as 3 Weston gave no exposition of the Fair Labor Standards and length of contract as- pects. Considering Hill's testimony regarding the May 13 meeting, where Weston men- tioned four items as constituting the principal areas of disagreement, and Weston's letter of May 15, wherein he mentioned but did not discuss the Fair Labor Standards and length of contract points, it is a reasonable inference that the parties regarded four items as major issues , with two others as also points to be resolved 'The record is not clear regarding the dates of the Company's contract proposals, at least as far as the two typed contract instruments that the Company submitted are concerned. At one point, both Weston, who was examining Hill, and the latter appeared to agree that the first such proposal was on July 26. At another point, Weston's ques- tions seemed to indicate that he believed that the proposal was first submitted in May. Hill's recollection was that the Company's first contract proposal was submitted in July. Fairchild testified that the first company proposal was submitted on May 15. The record is clear that the Company did submit a written counterproposal on July 26, 1963, since the letter of transmittal is in the record. Considering all the evidence, I am of the opinion that the two written contract proposals by the Company were submitted in May and July 1963, respectively. The reference in Weston's May 15 letter to union security and the Company's counterproposal thereon referred, in our opinion, to the Company's offer of a maintenance-of-membership clause as opposed to the Union's proposal for a union-shop clause. 760-577-65-vol. 148-52 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mentioned by Fairchild. Hill called Weston's office around July 7 or 9 but Weston had not returned. The parties next met on July 16 from about 10 a.m. to 3 p in., with lunch inter- vening. They went over the Union's proposed contract provisions and reached agree- ment or completed agreement on some items such as a grievance procedure, including arbitration. On the six items referred to in Weston's May 15 letter they made little or no progress, with the possible exception of some progress on the Fair Labor Standards application. On various matters, Weston would comment that particular wording was all right or would suggest taking some phrase out or would comment that something raised by the Union did not make that much difference or he would say, "Strike out something," or "Use your wording." Toward the end of the meeting, Weston said that he would prepare and submit a complete contract proposal to the Union which he indicated would favorably surprise the Union. On July 22 Weston wrote to Hill stating that the proposal was taking longer than anticipated due in part to the nature of the task and because of other work in the office. On July 26 Weston transmitted the Company's proposed contract and sug- gested that Hill take it up with his committee or submit it at a meeting to the em- ployees and let the Company know or that the parties arrange a further meeting. According to Hill, the company proposal was not satisfactory to the Union. He testified that there were omissions of matters that the parties had previously agreed upon, such as certain aspects of seniority. Hill also said that the proposal contained a management rights clause that had not previously been discussed. In any event the Union rejected the proposal at a union meeting. A few days later, Hill notified Fair- child of this action by telephone.5 The next meeting was on August 20, with Taylor, a Federal conciliator, participat- ing. The parties went over the contract proposals. They discussed the differences and the differences in language. According to Hill, on some language that bothered the Company, the latter was satisfied when the Union gave certain explanations. On the management rights clause, Hill testified that Weston agreed to its omission, say- ing that the Company knew its rights anyway. The Union offered alternatives on union security. Hill testified that the Company appeared to be interested in some of the alternatives to a union shop that the Union mentioned. On wages, the Company contended that they were paying more than their competitors. The Union disputed this. The Company said that a wage increase at the time was prohibitive. The parties next met on September 11, again with the conciliator. Very substan- tial progress was made and the conciliator stated, in summing up the situation to the parties, that the only matter on which they were apart was union security. Both parties had made concessions and among these was an offer of a 10-percent wage increase by the Company over a 3-year period. Fairchild testified that at that meet- ing he had felt that the parties were so close to a contract that they practically had one. Various approaches to the union-security issue had been explored and the Union then proposed that a vote be conducted among the employees as to whether or not they wanted a union-shop clause. The company people were receptive to the idea of an election and there was discussion of who would conduct such an election. Weston said that the NLRB would not do so. According to the credited testimony of Hill and Lott, Weston said something about the State labor commission and in- dicated that he would contact that body regarding the matter of a possible election. Weston did not testify. Fairchild testified that he did not recall that Weston said anything about contacting the State commission. Lott's testimony is not controverted that he, Lott, also said that if the State commission would not conduct an election, it could be done through a justice of the peace or by an accounting firm with the parties agreeing on the rules for the election.6 5 A comparison of the company proposal with the original union contract proposal is not possible since the latter was not offered in evidence We do know that the Union had proposed a union-shop clause and the company proposal contained a maintenance-of- membership provision Presumably the Union had also proposed a grievance and arbi- tration provision and there was a grievance and arbitration clause in the company pro- posal. The Union had proposed wage increases and the company proposal did not, al- though, apparently, the bonus had been included in the wage rates. In its brief, Respondent denies that it agreed to ask the State commission to conduct an election A section of the State law is cited to the effect that there is no authoriza- tion for "the commissioner to conduct an election on any matter which is within an ex- clusive jurisdiction of any Federal act or Board ." Without becoming involved in a matter of State statutory construction, I believe that the National Labor Relations Act and the Board have no jurisdiction on the matter of a union-shop election regardless of whether the Employer is otherwise within Federal jurisdiction. LAMB-WESTON, INC. AND F. G. LAMB CO. 803 In any event, it is clear that the union-security issue had reached the point on September 11 where the parties had agreed to explore the possibility of having a vote by the employees on the union shop, and the implication was present that, if an elec- tion could be arranged, its result could or would resolve the union-security issue.? Confirmation of the foregoing is found in Fairchild's testimony that the company rep- resentative in the contract negotiations discussed with Vice President and General Manager Watson the matter of a compromise of the union-security issue by subject- ing the matter to an election. Watson said, according to Fairchild, that he had no objection to such an approach "if we could work out a satisfactory election with proper rules and supervision." On September 11, as the parties were concluding this discussion, aforedescribed, regarding union security and an election, Lott asked the conciliator to arrange an- other meeting so that the parties could go over the contract items and be sure what was agreed upon and what was not and get the whole thing straightened out. At that point, Weston arose and said, "If you think that we're going to renegotiate this con- tract you're crazy" and he started to leave. Lott asked, "What about the agreement to drop the management rights clause?" Weston said, "Leave it out." Lott asked about the arbitration clause and Weston said in effect that if the Union liked its language better, that would be all right. Lott said, "What about some of the other things?" Weston continued toward the door and he and the company people left. Lott testified that the reason he had proposed another meeting to go over the con- tract items was because during the negotiations sometimes one proposal or phrase was used and sometimes another and sometimes the language was left dangling. He gave some illustrations, e.g., the Union had agreed to withdraw its request on the lunch period if language was written in the contract establishing an 8-hour day for all employees where possible. "There was several things of that nature that there was no language on." Although the parties were in agreement on arbitration, there were two proposed clauses with some differences in language. In short, it appears there were the initial written contract proposals of the two parties; they subsequently, in oral discussion, substantially resolved their differences; but there was no contract instrument reflecting the compromises and no precise ironing out of the language to be used in the various clauses. Around September 25 Watson was staying at a hotel in Pocatello. Hill telephoned him and introduced himself. They discussed some aspects of the contract negotia- tions and Hill mentioned the alternatives that had been proposed by the Union on the union-security issue. When Hill mentioned the proposed election, Watson said, "Well, the Company agreed to that." Hill replied that he had not yet heard from Weston to that effect. Between September 11 and October 8 Hill drew up a new contract instrument. He based this draft on the notes he had taken during the course of negotiations with re- spect to the various proposals of the Union and the Company and the agreements reached by the parties during the negotiations. * According to Hill, the only items in the contract proposal of October 8 that had not been previously agreed upon were the union-shop clause; 30 days' probation period for new employees instead of 60 as proposed by the Company; and something about one pay bracket In his October 8 letter transmitting the contract to Weston, Hill stated that if the contract was not accepted by the Company, "you may consider all previous offers by the Union withdrawn." Weston replied by letter of October 10. He stated that "there are several items included in the agreement which were not agreed upon although the contract does, in the main, follow our counterproposal." Weston then referred to some of the items in which he considered that there were variations, e.g., physical examination cost, according to Weston, was to be borne by the employee and the examination was to be every 6 months whereas Hill's proposal had 12 months; the Company, said Weston, proposed loss of seniority after a 48-hour period whereas Hill had 72 hours; contrary to Hill's draft, Weston said that the Company had not agreed to furnish rubber gloves or hair nets. Weston then stated, This, of course, verifies what we stated at the time of our last meeting. We did not think it advisable to renegotiate all of these items again after several months of meetings. . [After further consideration] . the Company is not inclined to compromise on the union security clause. Since that appears to be the principal issue, we do not see any prospects of progress in a meeting at 4 Respondent's brief states: "The Company contends that it did agree to consider the question and to consider a proposition contemplating a vote. The Company further ad- mits that it agreed to call the N-L-R-B- and see if it would conduct an election. . . . 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this time. However, if you are willing to change your position on the items which caused the impasse and if you are willing to concede to an open shop con- tract, or if you insist on a further meeting, we will be willing to accommodate upon reasonable notice. Hill testified regarding the items mentioned in Weston's October 10 letter on which Weston said there were variations. In substance, Hill's testimony indicated that there were details never precisely spelled out in negotiations but that there were things on which Weston had used such language in the negotiations as, "if that is going to be a stumbling block . I see nothing wrong in it." One of the examples referred to by Hill to illustrate the point was the rubber gloves and hair net matter. In the nego- tiations, the Company said that it used to furnish such items but the thing had been abused. The Union informed the Company of control plans in other plants that pre- vented abuse of the furnishing of gloves and hair nets and the Company then said that it might be worked out "and it was dropped there . there wasn't," according to Hill, "any apparent problem . it was never brought up again .. ." and Hill incorporated the matter in his October 8 proposal because he did not consider it a point of disagreement or something on which the parties had deadlocked. During this period, in response to an inquiry from the Federal conciliator, Hill ad- vised him that the Union was very definitely interested in further meetings with the Company. . About October 16, Hill made a long-distance call to Watson. He asked Watson if he had seen the Union's October 8 proposed contract. Watson said that he was aware of the state of the negotiations and he said that Weston had a formula to submit to the Union for the employees to vote on the union-security issue. Hill said that was fine. About this time the conciliator alerted the Union for a meeting that he said he was arranging with the Company. The conciliator then called back and reported to Hill that Weston had said he had nothing further to discuss with the Union and did not want any more meetings. On October 17 or 18 the Union communicated with the conciliator about arranging a meeting with the Company. The Union was thereafter advised by the concilia- tor that a meeting was arranged for October 23. About this time Grami, a union representative from the regional body of the Union, came to Pocatello. On Octo- ber 21 Lott encountered Grami talking with Weston in the lobby of a hotel in Pocatello. Lott joined them and listened to the conversation. Weston told Grami that he saw no great difficulty in ironing out the contract but he said the NLRB would not conduct a union-shop election. Grami said he was sure that the me- chanics of an election could be worked out. Lott asked Weston if he had heard from the conciliator and Weston said no. Lott said a meeting had been tentatively set for October 23. Weston said he could make that meeting but would be tied up the following day. Hill and Grami went to the plant on October 22 to arrange for the release of the union committeemen from work for the meeting on the 23d. Fairchild said he knew nothing about such a meeting. The morning of October 23, the conciliator called Hill and said that on the preceding night, October 22, Weston had advised that he would not be available for the meeting on October 23. No meeting was held. The Union sent a telegram to Respondent on October 23, proposing that the union-shop issue be resolved by a secret ballot election conducted by an impartial agency, with a 662/3 percent majority of the voters necessary to establish a union shop; eligible voters to be all present employees who worked for the Company any time last season or present employees who worked any time during the first week of this season's operation, the choice to be the Company's. It was stated that the Union's October 8 proposed contract contained all essential elements previously agreed upon during negotiations and that any minor details not previously agreed upon "are not strike issues and can be adjusted in further negotiations or arbitration, at your option." Attorney Weston replied by telegram of October 24. He stated that the Company's position was that any unsupervised informal election not conducted by the NLRB on union security would be impractical and unfair; that the Union's proposal on eligible voters was "unrealistic"; 8 that the Union's contract proposal had so many changes and new provisions that new negotiations or renegotiations would be required; and 8 Respondent made no counterproposal to the Union as to the matter of the eligibility of voters The reason for this, according to Fairchild's testimony, was that Respondent did not know "of any logical alternative." LAMB-WESTON, INC. AND F. G. LAMB CO. 805 that the Company had offered a 10-percent wage increase in a 3-year contract with all conditions previously agreed upon except union security and "since this issue can. not be resolved we do not feel obligated to make further offers." By letter, dated Thursday, October 24, Fairchild informed Hill that since the Com- pany's competitors had increased wages and since a wage increase had been offered to the Union by the Company during negotiations, "we have decided to put the wage increase into effect on Monday, October 28th, per the enclosed bulletin." The bulletin aforementioned, to which the letter referred, was a "Notice of Wage increase" to the employees and bore the date October 24, 1963. Uncontroverted employee testimony established that the notice was posted in the plant on October 25. Hill saw Fairchild's letter and enclosure on October 30 although the letter had been received in his office on Monday, October 28. I regard October 28 as the date of receipt insofar as the sender's responsibility is concerned. In any event, it is apparent that the letter to Hill was no more than a courtesy note advising him of a fait accompli and did not and was not intended to have any effect upon the October 24 notice to the employees. In its notice of wage increase, in addition to the wage rates, Respondent stated that, for the first 30 days of their employment, new employees would receive 10 cents per hour less than the posted rates. This feature indicates or establishes a 30-day probationary period of new employees. Respondent's last written contract proposal to the Union, which was in July, provided for a 60-day probationary period during which the employee would receive 10 cents less than the regular wage rate. The Union's contract proposal of October 8 had provided, inter alia, for a 30-day proba- tionary period during which the employee received 10 cents below the regular rate. Respondent, as we have seen, had refused to meet or to negotiate further with the Union regarding the October 8 proposal which the Union contended did substantially reflect the parties' positions in negotiations up to and-including September 11, the last negotiating session. The Union struck Respondent's plant on Monday, October 28, at 7 a.m. The strike and the picketing ended at 7 p.m., October 29. On October 28, the Company gave Hill a copy of a letter that it had sent to all employees, to the effect that any em- ployee who had not returned to work on or before October 31 would be replaced.9 The evidence is uncontroverted that, when employee-strikers returned to their jobs, they each received a copy of one of the Company's "Record of Absence" slips. It was the Company's established practice to use such slips for any absence, excused or unexcused, noting thereon the reason for the absence. One copy of the slip was placed in the employee's personnel file and the individual received a'copy. The strikers' slips bore the notation, "On strike," as the reason for the absence. When the strikers in the department of Foreman Sloan, a supervisor, returned to work, he advised them that they had each received a pink slip for both days that they were on strike "and I need only one more to terminate you." A leadman in the same department reiterated the foregoing statement as coming from the foreman.'° Fairchild testified credibly that he was unaware that the foremen had made the foregoing statement to employees. He testified that he and the other higher super- visors at the plant were aware that under the law employees had the right to strike without reprisal. The witness stated that the number of pink slips that an employee had received would ordinarily be considered with respect to possible disciplinary action. He also said that discharge actions before becoming effective were reviewed by Plant Manager Anderson and Personnel Manager Scott." On December 9, 1963, Hill wrote to Scott listing items that the Union desired to discuss, e g., working women with less seniority; employees request adequate tools in maintenance; safety hazards such as slippery floor at specified place; and so forth. 9 The plant operated during the strike. Hill estimated that one-half to one-third of the employees were on strike "The strikers who were out for 2 days received two slips, one for each day. "A company notice, dated December 28, 1961, dealt with absenteeism under company rules. Inter alia, the notice stated: « • s s s • « 4 It is each employees' responsibility to let the Personnel Office know as soon as possible when be will return to work from any absence, regardless of the reason. 5. These rules must be followed . .. . 6. Violation of Company Rules is cause for loss of seniority or being dropped from the payroll. 806 DECISIONS OF NATIONAL LABOR -RELATIONS--BOARD The meeting was not held because of-Weston's'advice'to his-client. • Weston advised the Union by letter of December 11 that stewards could present grievances under the Company's regular procedure and that, if the Union wished to meet for negotia- tions, the request should be made to Weston. Hill wrote to Weston on December 12, 1963, requesting resumption of negotia- tions commencing January 6 and continuing on the 7th, 8th, and 9th. The writer suggested that if those dates were not satisfactory the Company submit alternative dates. Weston replied on December 17 stating: . . . It will be impossible for me to meet on any of those dates as I have prior commitments. Since we have covered all of the items of the Union's proposal and have negotiated for practically a year and since you have refused the com- pany's counter-proposal thereby causing an impasse, I think your suggestion of further bargaining is out of place. The letter also said that since the strike had been ineffective it indicated that the Union did not have a majority and an election was suggested. Conclusions In defining the obligation to bargain under Section 8(a) (5) of the Act, Section 8(d) includes and specifies that the obligation contemplates meeting "at reasonable times." Whether the meetings are at reasonable frequency and for reasonable dura- tion as contemplated by Section 8(d) depends upon all the circumstances in a par- ticular case. The problem is not a new one and has been dealt with by the Board.12 An excellent statement of the standards is to be found in the Rutter-Rex case, supra: The obligation to bargain collectively surely encompasses the affirmative duty to make expeditious and prompt arrangements, within reason, for meeting and conferring. Agreement is stifled at its source if opportunity is not accorded for discussion or so delayed as to invite or prolong unrest and suspicion. It is not unreasonable to expect of a party to collective bargaining that he display a de- gree of diligence and promptness in arranging for the elimination of obstacles thereto, comparable to that which he would display in his other business affairs of importance. [Emphasis supplied.] The parties to collective bargaining under the Act are almost universally a union and a business organization. Business organizations are, in various phases of their activities, both buyers and sellers of products or materials and services. They deal with other parties in a buyer and seller relationship. It is a helpful analogy to char- acterize the parties to collective bargaining, the union and the company, as a seller and a buyer, or a buyer and seller, respectively. For purposes of discussion it is not important which party is the buyer and which is the seller since at various times the roles are interchanged in negotiating for various provisions in the contract By rea- son of the provisions of the Act, the collective-bargaining parties are not cast in the role of casual or mildly interested or uninterested buyer and seller. Their standard of conduct in collective bargaining is that of a seriously interested seller and seriously interested buyer. When such a seller and such a buyer negotiate about items that one is seriously interested in selling and the other is seriously interested in buying, they can be expected to display considerable diligence, promptness, and attention in the matter of arriving at mutually agreeable terms. In viewing the conduct of the parties to collective bargaining, we can properly appraise their conduct by using the standard of conduct that would be displayed by seriously interested buyers and sellers in negotiating for an agreement about matters in which they have a serious and sub- stantial interest. Since the March 20, 1963, meeting of the instant parties was almost wholly devoted to some individual employee grievances, we can consider that negotiations for a con- tract commenced on April 1. The parties negotiated for approximately 21/2 or 3 hours on that date. They tentatively scheduled the next meeting for April 15 but that meeting did not materialize because of the unavailability of Weston. On April 25, as on April 1, the meeting commenced at 2 p.m. and ran until 4:30 or 5 p.m. The Union requested that meetings commence in the morning and that they be held more frequently and for longer periods and for some successive days. Apparently the best that was accomplished along the aforementioned lines was an agreement to meet on 12 J. H. Rutter-Rex Manufacturing Company, Inc, 86 NLRB 470, 506; Insulating Fab- ricators, Inc., Southern Division, 144 NLRB 1325; "M" System, Inc, Mobile Home Divi- sion Mid-States Corporation, 129 NLRB 527; Exchange Parts Company, 139 NLRB 710. LAMB-WESTON, INC. AND' F. G. LAMB CO`. 807 May 13 at 10 a.m. When the union representative appeared at the appointed time and place, no representatives of Respondents were present . Through a telephone call to the plant it was ascertained by the -Union that Weston had been detained and could not be present until 2 p.m. The meeting therefore commenced at 2 p.m. Attorney Weston had advised the,Union that he would be on a trip to Europe in June. The Union tried unsuccessfully to have further meetings in May before Weston's departure, particularly since the parties had narrowed the issues consider- ably by May 13. Between May 13 and July 16, however, the Union was unable to arrange any bargaining session with Respondents . This was due entirely to Respond- ents' refusal to meet between May 13 and June 5 before Weston went abroad and to Respondents' refusal to meet during Weston's absence. In the period from April 1 to July 16 Respondents devoted no more than approxi- mately 9 hours to contract negotiating sessions with the Union . It is our opinion that this amount of negotiation over a period of more than 3 months did not square with the statutory standards contemplated by Section 8(d) of the Act. I do not question the fact that Attorney Weston is a busy practitioner. It is equally clear that people do take vacations both abroad or in this country. But using our analogy of a seriously interested buyer and seller, it is difficult to conceive that nego- tiations would have similarly been allowed to lapse if the matter had involved the purchase of a plant site or essential machinery or the sale of several carloads of products. The terms "bargain" and "bargaining" are advisedly used in the Act. Face-to-face negotiations are contemplated and correspondence is not a substitute therefor. In- deed, in the instant case, the value of face-to-face bargaining is well illustrated. In written contract proposals and in written correspondence the parties were, at various stages, well apart in their respective positions . However, when they did sit down to- gether, considerable progress, toward narrowing the issues and in reaching agreement on various matters, was made. By the time of and during the course of the Septem- ber 11 meeting both parties had contributed to effective collective bargaining. The abrupt termination of the September 11 meeting and the refusal of Respondents to meet at any time thereafter with the Union is, to me, almost inexplicable when we consider the facts of the situation. Prior to September 11 there had been three written contract proposals. The last such written proposal was that of Respondents on July 26. During negotiations the parties discussed the various items in the proposals . Verbally, they agreed on cer- tain items or discussed various changes in language in certain clauses without appar- ent disagreement or Attorney Weston would comment that something did not make that much difference or comment in a way that was at least susceptible to the inter- pretation that the parties were either not apart on an item or that only some phrase- ology rather than substance was involved . In any event, by the latter part of the September 11 meeting, when the parties had made substantial progress , the record indicates that the progress , in the form of agreement or apparent agreement on many items, had not been memorialized by any written drafts reflecting the various modifi- cations discussed by the parties . The Union's proposal that the parties meet in order to make sure exactly what they had agreed upon and the language to be used on cer- tain items, where apparently there was no dispute on substance , was a reasonable proposal in the circumstances . Respondent's termination of the September 11 meet- ing and refusal to meet again on the ground that the Union was attempting to re- negotiate the entire contract, was, in our opinion, inconsistent with its statutory obligation. Respondents were at least obliged to meet with the Union and to consider what it was that the Union was talking about . If the parties had previously agreed on items a through f, for example , and had agreed on the specific language of Company's July 26 proposal regarding such items or if they had agreed to the arbitration clause language of the Union's contract draft, and the Union, after September 11, had sought to renegotiate all such matters, the Respondents ' assertion that the Union was trying to renegotiate the entire contract might have been a well-taken position. But the record does not show that such was the fact . Respondents' impatient termination of negotiations on September 11 and its refusal to meet thereafter is the fact. No party to collective bargaining is obliged to indulge in endless and fruitlessly repetitive meetings but on September 11 such a point had not been reached. The parties had made substantial progress. The precise terms of their agreement on vari- ous matters needed to be put down in black and white since it was clear that the earlier written contract proposals of the Union and the Respondents did not repre- sent the language or the modifications that each party had in mind . At least a fur- ther meeting was required to determine what precisely each party believed repre- sented their agreement or even lack of agreement. 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The situation reached on September 11 cannot be characterized as an impasse justifying a refusal to meet again. Even on the substantive issue of union security the positions of the parties had not calcified. Respondents had expressed their will- ingness to consider the possibility of having the union-shop issue voted upon by the employees. Respondents had not presented to the Union a position that said Re- spondents will not agree to a union shop. The events that followed the September 11 meeting have previously been described in this Decision. In our opinion it was the parties' obligation to meet in face-to-face negotiations during this period. Instead of or in addition to writing to the Union on October 10 and stating their position on various contract items, Respondents should have met with the Union and there stated their position. If no agreement could be reached, that would have been one thing, but the refusal to meet for the purpose of discussion foreclosed any chance of agreement short of complete capitulation by one side or the other. Perhaps if the parties had met the Company would have insisted on a provision that employees have a physical examination every 6 months and the Union would have insisted on a 12-month period.13 Neither party was obliged to agree. But if they had met across the bargaining table on this and on other matters there was at least a possibility of reconciling their differences by one or both reaching an intermediate position or by one side yielding to the other or even if no agreement was reached they would have fulfilled their duty to bargain.14 Respondents' refusal to meet with the Union in the period after September 11, in our opinion, negated their statutory duty. It may be that even if Respondents had met with the Union and had bargained further the parties might not have reached agreement. They might have ultimately been apart on union security or other matters. But, by not meeting, the collective- bargaining process was frustrated and failure was foreordained. While Respondents were under no obligation to agree to a union shop, they had agreed to consider the possibility of an election on the matter. Thereafter, Respond- ents never sat down with the Union to state why they had decided against an election or to discuss why such an election was not feasible or to discuss why they were opposed to the Union's proposal regarding voter eligibility. In a letter, Respondents simply characterized the eligibility proposal as "unrealistic" and testified at the hear- ing that it had said nothing about other eligibility standards to the Union because Re- spondents knew of no logical alternative standard to that proposed by the Union. This is not collective bargaining. If Respondents had changed their minds on the matter of a union-shop election, this should have been explained forthrightly to the Union across the bargaining table. If, after discussion, the parties had been unable to reach a meeting of the minds, the law would compel no agreement. But Respond- ents, in October, appear to have been more interested in proclaiming an impasse than in fulfilling their obligation to bargain. Had the parties, commencing on April 1, sat down and bargained out their differences with reasonable diligence and had failed to reach agreement after fulfilling their obligation under the Act, Respondents could properly have placed in effect the wage increase that they had offered to the Union during the negotiations. Instead of this, however, Respondents, in the respect previ- ously described, did not fulfill their obligation to bargain, but by refusing to sit down and bargain after September 11 achieved a proclaimed impasse and placed into effect a unilateral wage increase. It is concluded that Respondents, for, the reasons set forth in this section of the Decision entitled "Conclusions," have violated Section 8(a)(1) and (5) of the Act. Having been certified as the bargaining representative of the employees in an appro- priate unit on March 1, 1963, the Union's majority status is presumed to continue dur- ing the certification year.15 Respondent challenged the majority status of the Union in December 1963, pointing to the assertedly ineffective strike in October 1963. The exact number of employees participating in the strike is not clear but, even if less than 11 See Weston's letter of October 10. 14 When one party in collective bargaining places itself and the other party in the posi- tion of writing or having to write letters and telegrams on bargaining subjects in place of face-to-face negotiations on such subjects the frustration of the bargaining process is complete. Each party then finds itself in a position of making statements about its firm position or its final offer on various items. The written word or written contract item set forth in a letter or telegram stands bleak and inflexible but the same word or item when uttered orally or when discussed across the bargaining table can be readily modified, explained, or phrased more convincingly when confronted with the face-to-face reactions of the other party. 15 Ray Brooks V. N.L.R.B., 348 U.S. 96. e LAMB-WESTON, INC. AND F. G. LAMB CO. 809 a majority participated, this factor is not determinative. A predictable and foresee- able consequence of the stringing out of negotiations and of Respondents' failure to comply with their bargaining obligations and their granting of a wage increase to the employees on October 25 was that there would be some undermining of the Union's position thereby. Procrastination in bargaining, 'including a paucity of bargaining meetings, soon leads to a tolling of weeks andmonths. When the lapse of time is then joined by a proclaimed impasse, the frustration of the bargaining process contem- plated by the Act is complete.is The Pink Slips Respondent is responsible for the statement of Supervisor Sloan to returning strikers that they had received two pink absence slips for the 2 days that they were on strike and that he needed only one more pink slip to terminate them. Since the strike was activity protected by the Act, Respondent could not use or threaten to use such activity as a factor in any disciplinary action, present or future, against the strikers. Sloan's statement aforementioned, however, did make it clear that he would use the record of absence by reason of strike participation as part of a dossier that could lead to discharge.17 The statement, therefore, constituted interference with rights guaran- teed by the Act and was violative of Section 8 (a) (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in this Decision, occurring in connection with its business operations, previously described, 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 A refusal to bargain having been found, it will be recommended that, upon request of the certified bargaining agent, the Union, Respondents sit down and bargain with the Union and, if an understanding is reached, embody such understanding in a signed agreement. Regarding the pink slips given to strikers, the General Counsel urges that Respond- ents be ordered to discontinue preparing and filing in any personnel records a record of the absence of employees on strike. I regard the pink slips as part of Respondents' customary personnel procedure. They were, in fact, absence slips used in the case of any absence, authorized or unauthorized. Strikers are absent from work when they are on strike and there would appear to be no reason why the employer cannot record such an absence on forms used for absences. What is to be avoided is the use or the threatened use of such slips, in the case of strikers, in the manner that inhibits or interferes with the exercise of employee rights under the Act. It should be made clear to employees that participation in a lawful strike will not be considered with respect to present or future disciplinary action and that a pink slip recording absence due to such a strike will not count as an absence for disciplinary purposes, present or future. I believe that pink slips issued to strikers, or, if Respondents choose, all pink slips, should have such a notation. In addition, it will be recommended that this matter be referred to in the customary remedial notice which it is recommended be posted for 60 days. CONCLUSIONS OF LAW 1. Respondents are employers engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act, and the Union is a labor organization within the meaning of Section 2(5) of the Act. 2. All production and maintenance employees employed by Respondents at their potato processing plant and warehouse and cold-storage plant in American Falls, Idaho, including truckdrivers, warehousemen, and laboratory employees, but exclud- ing office clerical employees, guards, professional employees, and supervisors as de- fined in the Act, constitute a union appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. 3. The Union, at all times material herein, has been and now is the exclusive rep- resentative of all employees in the aforesaid appropriate unit for the purposes of col- lective bargaining within the meaning of Section 9(a) of the Act. 18 Cf. Kit Manufactur¢ng Company, Inc, 138 NLRB 1290, 1292-1295 11 The possibility that higher supervision might not have sanctioned such action does not alter the impact of the statement on the employees. 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. From the period commencing on April 25 to July 16, 1963, Respondent has refused to bargain collectively by failing to meet at reasonable times, including at reasonable frequency and for reasonable duration, and in the period from Septem- ber 11, 1963, Respondents have refused to bargain collectively in that they have re- fused to meet with the Union for the purposes of bargaining. By refusing to bargain with the Union, as aforesaid, Respondents are engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. By stating to strikers that two pink absence slips would count against them in Respondents' records and that one more pink slip would result in discharge, Respond- ents interfered with the rights of employees and have engaged in unfair labor prac- tices within the meaning of Section 8(a) (1) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, it is recommended that Respondents, Lamb-Weston, Inc. and F. G. Lamb Co., their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 983, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, as the exclusive representative of all employees at the American Falls, Idaho, plants, in the appropriate unit as found in this Decision. (b) Informing employees who participate in lawful strikes that absence slips given to them recording their absence as strikers will be used against them for disciplinary purposes at any time. (c) In any like or related manner interfering with, restraining, or coercing em- ployees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Upon request, bargain collectively with Teamsters, Chauffeurs, Warehouse- men & Helpers Union, Local No. 983, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as exclusive representative of all employees in the appropriate bargaining unit and, if an understanding is reached, embody such understanding in a signed agreement. (b) Inform participants in the October 1963 strike as well as other employees that absence slips given to participants in strikes or other activity protected by the Act will not be used for disciplinary purposes at any time. (c) Post at its place of business in American Falls, Idaho, copies of the attached notice marked "Appendix." i8 Copies of said notice, to be furnished by the Regional Director for Region 19, shall, after being duly signed by Respondents' representative, be posted immediately upon receipt thereof, and be maintained by it for at least 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees customarily are posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by other material. (d) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps Respondents have taken to comply herewith.19 1e If this Recommended Order is adopted by the Board, the words "Pursuant to a Deci- sion and Order" shall be substituted for the words "as Recommended by the Decision of a Trial Examiner". in the notice. If the Board's Order is enforced by a decree of the United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order " 19 If this Recommended Order Is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 19, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES As recommended by the Decision of a Trial Examiner of the National Labor Rela- tions Board, we are posting this notice in conformity with the purposes of the National Labor Relations Act. WE WILL bargain collectively, upon request, with Teamsters, Chauffeurs, Warehousemen & Helpers Union, Local No. 983, International Brotherhood of GENERAL ELECTRIC COMPANY 811 Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the law re- quires. This union is the exclusive bargaining representative of the following employees in the appropriate unit: All production and maintenance employees employed at our potato proc- essing plant and warehouse and cold -storage plant at American Falls, Idaho, including truckdrivers , warehousemen, and laboratory employees, but ex- cluding office clerical employees , guards, professional employees, and supervisors. WE WILL NOT consider for disciplinary purposes any notice of absence slip that any employee who participated in the October 1963 strike may have received. All our employees are free to remain or to become members of Teamsters, Chauf- feurs, Warehousemen & Helpers Union , Local No. 983, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America , or any other union, and they are free not to join any union unless at some time a valid union-shop con- tract may be executed by us with a union. LAMB-WESTON, INC. AND F. G. LAMB CO., 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, 327 Logan Building, 500 Union Street, Seattle, Washington, Telephone No. Mutual 2-3300, Extension 553, if they have any questions concerning this notice or compliance with its provisions. General Electric Company and Hanford Atomic Metal Trades Council, AFL-CIO, Petitioner. Case No. 19-RC-3440. Septem- ber 3, 1964 DECISION AND ORDER Upon a petition duly filed on May 25, 1964, a hearing was held be- fore Hearing Officer Harold D. Kessler, on June 19, 1964. The Hear- ing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent employees of the Employer. 3. No question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Sections 9 (c) (1) and 2 (6) and (7) of the Act, for the following reasons : Petitioner seeks a unit of 27 motor messengers, mail handlers, and addressograph operators employed at the Employer's Hanford proj- ect. The Hanford project is operated by the Employer for the Atomic 148 NLRB No. 80.