Mixermobile Manufacturers, Inc.

592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mixermobile Manufacturers, Inc. and Metal Trades Council of Portland and Vicinity, AFL-CIO. Case No. 36-CA-1300. No- vember 9, 1964 DECISION AND ORDER On May 25, 1964, Trial Examiner William E. Spencer issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof, while the General Counsel and the Charging Party filed briefs in answer to the Respondent's exceptions. 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 Mem- bers Leedom 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 Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with clarification of the order as set forth below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Order recommended by the Trial Examiner and orders that the Respondent, Mixermobile Manufacturers, Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, with the following modifications : 1. Delete subparagraphs (a) and (b) of paragraph 2 thereof, and substitute therefor the following language : "(a) Upon request by Metal_ Trades Council of Portland and Vicinity, AFL-CIO, execute the agreement submitted to it on Octo- ber 22, 1963, the agreement to be effective from that date to at least the next renewal date as provided therein following signature, but if no such request to execute is made, bargain, upon request, with the Union as the exclusive bargaining representative of employees in .the previously described appropriate unit." 2. Reletter the other subparagraphs of paragraph 2. accordingly. 149 NLRB No. 60. MIXERMOBILE MANUFACTURERS, INC. 593 3. Delete the second paragraph of the notice, inserting in lieu thereof the following language : WE WILL, upon request, execute the final draft of the agree- ment submitted to us by the Union on October 22, 1963, the agreement to be effective from that date to the next renewal date as provided therein following signature, but if no request to execute is made, we will, upon request, bargain collectively with the Union as the exclusive bargaining representative of all em- ployees in the following unit : TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This proceeding, brought under Section 10 (B) of the National Labor Relations Act as amended (61 Stat. 136; 73 Stat. 519), herein called the Act, was heard before Trial Examiner William E. Spencer at Portland, Oregon, on March 31, 1964, pursuant to due notice. The complaint, issued on February 5, 1964, by the General Counsel of the National Labor Relations Board, the latter herein called the Board, upon a charge duly filed on December 23, 1963, by Metal Trades Council of Portland and Vicinity, AFL-CIO, herein called the Union, alleged in substance that Mixermobile Manufacturers, Inc., herein called the Re- spondent or the Company, refused to bargain with the Union , the duly certified representative of its employees in an appropriate unit, thereby violating Section 8(a)(1) and (5) of the Act. Respondent in its duly filed answer • denied the commission of the alleged unfair labor practices. Upon the entire record in the case , from my observation of the witnesses, and after considering the briefs filed with me by the General Counsel , the Union, and the Respondent, respectively, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, an Oregon corporation engaged in the manufacture of heavy equipment, including scoopmobiles, maintains a principal office and place of busi- ness at Portland, Oregon. During the past 12 months its purchases exceeded $1,000,000, of which amount in excess of $500,000 was for goods originating outside the State of Oregon . During the same period it manufactured in Oregon and sold in excess of $2,000,000 in value of equipment , of which amount in excess of $1,000,000 was shipped directly to points outside Oregon. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES Pursuant to elections initiated by RM petitions, the Union has twice been certified as bargaining representative in the appropriate unit set forth below, the first time in April 1960, the second about June 12, 1962. The appropriate unit is: All production and maintenance employees of Respondent (including shipping, receiving, and warehouse employees), excluding all clerical employees , employees of the purchasing, engineering, and parts departments, and guards , professional employees, and supervisors as defined in the Act. During the period of the first certification no bargaining agreement was consummated by the parties. Negotiations were continuing in February 1963, and a final bargaining conference was held in the Offices of the Federal Mediation and Conciliation Service on June 25, 1963. It is the General Counsel's and the Union's position that agreement on a contract was reached at this meeting. Following the June 25 meeting, the Union prepared a draft of the agreement, executed it, and submitted it to the Respondent for the latter's execution. The Union on two or three occasions thereafter inquired of the Respondent why 770-076-65-vo1. 149-39 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it had not executed the agreement, and was told by the latter in response to the first inquiry that Respondent had not as yet had time to read and study it, and on a later occasion that in the opinion of the Respondent it did not accurately reflect what was agreed on at the June 25 meeting. It was not, however, until September, after the Union had filed a charge of unfair labor practices against the Respondent, and the Union's attorney, Donald S. Richardson, had twice inquired of Respondent's attorney, Henry McCarthy, concerning Respond- ent's failure to execute the agreement, that the latter advised Richardson that the "field or service work provisions" in the draft of the agreement submitted by the Union "were not right"-this without amplification-and that the Respond- ent had not received a "side letter" which apparently represented some concessions by the Union and was supposed to accompany the draft of the agreement. There- after, the Union made a careful comparison of its draft of the agreement with notes and minutes kept of the negotiations and discovered that it contained some inaccuracies. After making this discovery the Union withdrew its charge of unfair labor practices, and its attorney, Richardson, submitted to the Respondent a corrected draft of the agreement.' Richardson's covering letter stated, in part: We have been informed that you have contended that the written agreement previously furnished to you did not conform in all respects with the agreement reached in your negotiations with the Council. We also understand that you have raised the question of a "side letter" from the Union concerning certain points. Included with the enclosure of the corrected contract draft was the side letter referred to. The Respondent made no reply to this communication nor has it made any response to other communications concerning the agreement addressed to it by the Union. Respondent's general manager, Stanley Wagner, who participated in contract negotiations, admitted that the contract and side letter submitted by the Union on October 22 conformed in all respects to agreements reached in negotiations which culminated in the meeting with the Federal Conciliator on June 25, but testified that the agreements so reached were not complete because of the omission of certain job descriptions proposed by the Respondent at a bargaining session on February 12, 1963. As to the omitted job descriptions, he testified, there was no agreement. The Respondent's failure to make any response whatever to the Union's repeated inquiries concerning its execution of the draft of an agreement submitted by the Union on October 22; its failure to inform the Union on any point of difference existing between it and the Union with respect to the submitted draft; and conduct throughout the period subsequent to the final bargaining session of June 23 in withholding execution of an agreement while furnishing the Union with no detailed explanation of its action in doing so, all constitute a clear and patent refusal to bargain in good faith. Wagner's explanation that Respondent considered that it was under no duty to meet with the Union or answer its communications except in a meeting with the Federal Conciliator, and that, apparently, only at the Union's request, constitutes no justification for its course of conduct. Its duty to meet with the Union at all reasonable times, with or without a Federal Conciliator-who would be called in only by mutual consent of the bargaining principals-was in no sense qualified by the fact that bargaining sessions in the past had been held in the Conciliator's office and, presumably, with him in attendance. Nor was there any duty on the part of the Union, as a bargaining principal, to initiate the matter of a further meeting with the Respondent, unless and until the latter had afforded it some explanation of its failure and refusal to execute the bargaining agreement. In view of Respondent's experience in dealing with labor organizations, first through a multiemployer unit and later individually, and its retention of a legal adviser, I am unable to believe that its failure to respond to the Union's repeated demands that it execute the agreement submitted to it by the Union or furnish the Union with an explanation of its refusal to do so, was due to a good-faith misunderstand- ing of its bargaining obligations: on the contrary, I think it fairly obvibus that it was due solely to its desire to postpone or evade altogether cementing a contractual obligation with the Union. 1 There was delay in the Union's handling of the matter due to successive heart attacks suffered by its secretary-treasurer, Henry McCarthy, who participated in the negotiations through June 25. MIXERMOBILE MANUFACTURERS, INC. 595 The only remaining issue of consequence is whether the draft of the agreement submitted by the Union to the Respondent on October 22 was in fact the agree- ment reached by the parties at the bargaining session of June 25. It was unless there was a clear understanding of the parties that the job descriptions proposed by the Respondent be included in the agreement and constitute an integral part of it. Existing industrywide contracts of the Union provided for three job classifications. The Respondent, because of the peculiar character of its business, proposed that instead of three there should be five job classifications. Wagner admitted that the Union accepted the Respondent's proposal of the five classifications. "Q. And was this proposal approved and accepted by the Union? A. Yes." This proposal and acceptance appear to have occurred at the February 12, 1963, bargaining session. We are therefore no longer concerned with the job classifications, as such, but only with the job descriptions proposed by the Respondent with respect to these classifications. Admittedly, the description of the first classification, which was substantially the same as that contained in the Union's prior contracts, was agreed upon and written into the contract draft. As to the remaining four, "to the best of his knowledge" Wagner sub- mitted notes or something in writing containing Respondent's proposal for a job description on two; as to the remaining two, it appears that he proposed nothing in writing; he testified that the matter was discussed orally. Several union representatives present at some or all of the negotiations testified that they were shown none of the job descriptions testified to by Wagner. Robert G. Kennedy, a business representative of one of the participating unions, testified on cross-examination: Q. Isn't it correct, Mr Kennedy, that there is a job description [in the Union's contract draft] for just one of the five classifications set up for wages under the agreement. A. This is correct. Q. And isn't it also true, Mr. Kennedy, that no agreement, had been reached between the Union and the Company with respect to the job descrip- tions for the other four classifications? A. When the wage rates were negotiated, these were talked about at that time, what these people would do; in other words, not reduced to writing, but the people of the Negotiating Committee did discuss what these people would do. Q. No agreement was reached between the Union and the Company as to their job descriptions? A. Well, since we had a wage rate in there, I would say yes, even though it was not in writing. He later testified, "I wanted to know what these people were going to do, and even though it was not reduced to writing for these other classifications, we understood what these people were to do." There was enough of an agreement at the February 12 meeting, that the Union on February 22 took the proposed contract, orally, to its members for their ratification. Due to some oversite, the Union failed to submit certain contract provisions at this meeting, but they had nothing to do with job descrip- tions; apparently the omissions were discussed, the wishes of the membership ascertained, and there were further negotiations on about May 7 and June 25. Re- spondent's Wagner testified that at the final bargaining session on June 25, the discussion was limited to two points, and on those two points there was agreement. His testimony on this meeting. "I do not recollect a complete run- down of the entire agreement, no, but he [the Conciliator] did discuss the points that were to be brought up at this meeting-the two points remaining." [Emphasis supplied.] "Q. What two points? A. He brought up the point of service work and health and welfare." While Wagner professed not to remember that at this meeting it was agreed that the Union would submit a draft of the agreement to the Respondent for the latter's execution, the testimony of the Union's negotiators was a little clearer on the point, and I am convinced that such an understanding was reached. I am also convinced that it was the understanding of all parties that this meeting marked the end of negotiations for a contract. No further meetings were scheduled or discussed. It hardly seems likely that the Union would have prepared a draft of the agreement and executed it before submitting it to the Respondent, had this not been the case. The Union's first draft contained errors, but its corrected draft which it submitted on October 22, as admitted by Wagner. did not. 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD From the facts recited above it is seen that from February 12, when the Respond- ent submitted its proposal for five job classifications and the matter of job descriptions was at least discussed orally, until and including the June 25 negotia- tions, the matter of job descriptions was not made an issue by the Respond- ent and, admittedly, was not even mentioned in the final meeting on June 25 which, as Wagner testified, was limited to the two points remaining, neither of which was related to job descriptions. Had the Respondent believed that job descriptions for four out of the five job classifications agreed upon constituted an issue such as would have to be resolved before a bargaining agreement could be executed, it is incredible that it would have made no mention of it in the final negotiations on a contract, and even more incredible that after the Union had filed its first charge of unfair labor practices and the Union's attorney inquired concerning its reasons for not executing the Union's draft of a contract, it still would have made no men- tion of the omission of job descriptions from the document. In fact, at no time, apparently, prior to the hearing in this case , was the Union informed that the Re- spondent was relying on the omission of job descriptions as a justification for its refusal to execute the contract submitted to it by the Union on October 22. On the entire record , I am convinced that the Respondent never made an issue of job descriptions or demanded that such descriptions be included in a bargaining agreement. Its proposal for five job classifications was granted, and these five classifications are set forth in the contract draft the Union submitted on October 22. It may well be and doubtless is the fact that there was no formal agreement , certainly none in writing, on job descriptions for four of the five accepted job classifications . On the other hand there is no evidence that there was any disagreement in the matter , that the matter was disputed or an impasse reached. I think it is obvious , as indicated in Kennedy's testimony, that the parties had a general understanding about such job descriptions and that they were not considered to constitute an issue such as required resolution in writing and contractual form . That the job description for the first classifica- tion was included in the agreement appears to be due to-the fact that it was already formulated in writing and was adopted in substantially the same form as it appeared in prior union contracts . There is no reason to believe that the Respondent in executing the agreement reached at the June 25 meeting would be in any way prejudiced in implementing , in a satisfactory manner, the remaining job classifications agreed upon, or that it had any other thought during the negotiations that culminated in the agreement. If it did have such misgivings or concern and considered the matter an issue to be resolved in contractual form and without which no agreement was possible , it was clearly its duty to so state in a timely and forthright manner. This it did not do either because it deliberately refrained from prosecuting it as an issue during contract negotiations in order to serve as a pretext for refusing , later, to execute an agreement with the Union , or because it came as an afterthought which the Respondent now seeks to utilize as a defense to its refusal to bargain. There is no other logical and persuasive explanation of its acquiescence at the negotia- tions on June 25 in the Conciliator's action in limiting discussion to the "two remaining points" in issue and its failure at any time previously or thereafter to inform the Union that inclusion of the job descriptions was required as a condition for the Respondent's execution of the agreement. Upon the entire record it is found that the Respondent 's refusal to execute the agreement submitted by the Union on October 22 constituted a refusal to bargain within the meaning of Section 8(a)(1) and (5) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in connection with Respondent's operations described in section I, above, have a close, intimate , and substantial relationship to trade, traffic , and commerce among the Several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices as set forth above, I shall recommend that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. MIXERMOBILE MANUFACTURERS, INC. 597 Having found that the Respondent, in violation of Section 8(a)(1) and (5) of the Act, refused to bargain with the Union, the duly designated representative of its employees in an appropriate unit, I shall recommend that the Respondent, on request of the Union, forthwith execute and serve on the Union the final draft of the bargaining agreement submitted to it by the Union or about Octo- ber 22, 1963, and in all other respects, upon request, bargain with the Union as the exclusive representative of all its employees in the appropriate unit concerning wages, hours, and other terms and conditions of employment, and if an under- standing is reached embody such understanding in a signed agreement. 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. All production and maintenance employees of Respondent (including ship- ping, receiving, and warehouse employees), excluding all clerical employees, employees of the purchasing, engineering, and parts departments, and guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9 (c) of the Act. 2. The Union, a labor organization within the meaning of Section 2(5) of the Act, has been at all times on and after June 12, 1962, and now is, the exclusive representative of all employees in the aforesaid appropriate unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 3. By refusing on and after October 22, 1963, to bargain in good faith with the Union as the exclusive representative of its employees in the aforesaid appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 4. By the foregoing conduct the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, it is recommended that the Respondent, Mixermobile Manufacturers, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, with the Union as the exclusive representative of its employees in the previously described appropriate unit. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to en- gage in any other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Manage- ment Reporting and Disclosure Act of 1959. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request by the Union forthwith execute the final draft of the agree- ment submitted to it by the Union on or about October 22, 1963, and serve a copy of the same on the Union. (b) In all other respects, upon request bargain collectively with the Union as the exclusive representative of employees in the previously described appropriate unit with respect to rates of pay, wages, hours of work, and other terms and conditions of employment , and embody in a signed agreement any understanding reached. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Post at its plant in Portland, Oregon, copies of the attached notice marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for Region 19, shall, after being duly signed by the Respondent's authorized repre- sentative, be posted by the Respondent immediately upon receipt thereof and maintained by it for a period of 60 days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 19, in writing, within 20 days from the date of the receipt of this Decision, and Recommended Order, what steps it has taken to comply hexewith.3 2In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a united States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." 3In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trail Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Nationaal Labor Relations Act, as amended, we hereby notify you that: WE WILL NOT refuse to bargain with Metal Trades Council of Portland and Vicinity, AFL-CIO, as the exclusive representative of all our employees in the appropriate unit described below, or in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as author- ized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL, upon request, execute the final draft of an agreement served on us by the Union about October 22, 1963, and in all other respects will, upon request, bargain with the aforesaid Union as the exclusive representative of all employees in the appropriate unit described below, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. The bargaining unit is: All production and maintenance employees (including shipping, receiv- ing, and warehouse employees), excluding all clerical employees, em- ployees of tho purchasing , engineering , and parts departments, and guards, professional employees, and supervisors as defined in the Act. All our employees are free to become, remain, or to refrain from becoming or remaining, members in the above-named or in any other labor organization. MIXERMOBILE MANUFACTURERS, 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, 327 Logan Building, 500 Union Street, Seattle, Washington, Telephone No. 682-3300, if they have any question concerning this notice or compliance with its provisions.