East Texas Steel Casting Co., Inc.

1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD East Texas Steel Castings Company, Inc. and United Steelwork- ers of America, AFL-CIO. Case No. 16-CA-2060. September 9, 1965 DECISION AND ORDER On May 27, 1965, Trial Examiner Jerry B. Stone issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommend- ing that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. There- after, Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. 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 brief , and the entire record in this case, and hereby adopts the findings , conclusions , and recommen- dations of the Trial Examiner with the following observations: As more fully set forth by the Trial Examiner on October 18, 1963, the Union won a Board-conducted election . Bargaining negotiations began on December 18, 1963, and continued through July 8, 1964, dur- ing which time the parties met 19 times, exchanged numerous proposals and counterproposals , and engaged in lengthy discussions. While some differences were resolved on several issues, the parties never reached agreement on major economic and noneconomic matters . On the latter date Respondent broke off negotiations, claiming that an impasse had been reached and that future meetings would be useless. Thereafter, the Union requested that Respondent again meet with it to discuss the issues in dispute. Respondent never assented and the negotiations were never renewed. The Trial Examiner found, and we agree, that Respondent refused to bargain in violation of the Act. We also concur in his conclusion that no impasse had in fact occurred. Like the Trial Examiner, we are persuaded that Respondent's proposals and conduct during the entire period of negotiations reveal that it was bargaining in bad faith without any intention of entering into a final and binding agreement, and was, in fact, intent upon undermining the Union and creating a stalemate. 1 The Respondent had requested oral argument . Because , in our opinion , the record and briefs adequately set forth the issues and position of the parties, this request is hereby denied. 154 NLRB No. 94. EAST TEXAS STEEL CASTINGS COMPANY 1081 Indications that Respondent was not acting in good faith appear first from its unilateral adoption of changes in employee benefits. Beginning early in November 1963, 2 weeks after the election was con- ducted, Respondent instituted an incentive wage plan for mainte- nance men. At the time this plan was conceived, long before the elec- tion was ordered, Respondent contemplated that it would be temporary and subject to periodic review. However, it was put into operation as a permanent program, and Respondent neither advised the Union of its initiation nor consulted with the Union concerning any aspect thereof. The Union did not learn of this plan until the following June, and it thereupon requested that Respondent furnish details and discuss the matter. After several weks of inaction, Respondent sent the Union a copy, but by that time negotiations had been broken off and thereafter Respondent ignored the Union's request to discuss this matter and all other issues in dispute. Similarly, Respondent granted merit wage increases to nine employ- ees during negotiations without notifying the Union. When the Union complained, Respondent agreed to cease granting such increases until a contract could be reached. These instances of unilateral action clearly reveal that Respondent's attitude was one of ignoring the Union whenever it could. Its silence concerning the incentive wage plan, under the circumstances, can only suggest that it was bent on avoiding discussions with the certified bar- gaining agent of its employees, and Respondent's delay in supplying the information requested, and its failure to meet and discuss the plan with the Union, only gave further evidence of its determined effort to avoid negotiations over this bargainable matter.2 This effort to undermine and to avoid dealing with the Union is also clearly manifested by the very nature of the contract proposals offered by Respondent at the bargaining table. Respondent adamantly refused to grant any general wage increase and instead proposed a wage provision that, would maintain the existing scale. This proposal also limited merit increases, and permitted a possible cut in wages by granting the employer sole and exclusive rights to grant merit raises amounting to no more than 12 cents per hour during any 12-month period and to lower wages if the Department of Labor's cost of living index dropped. Respondent also insisted on a broad and extremely detailed management rights clause which required the Union to waive practically all of its rights, including those existing by virtue of the Act .3 And Respondent's requested grievance and arbitration proce- 2 Fitzgerald hfsllS Corporation, 133 NLRB 877, 882. 3 Thus, the reservations to management included : the right to allocate and assign work, or transfer work out of the bargaining unit or reduce the work force ; the right to trans- fer men from one Shift to another; the right to limit union activity on company property and to prohibit the same on company time ; the right to hire , promote, and retire em- 10S2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dure was so tied in with the management rights clause as to leave the few areas of possible conflict amenable to its processes 4 While it is well established that the Board cannot pass judgment on a substantive term proposed or resisted in collective-bargaining rela- tionships,5 this proscription does not preclude us from determining motives based on an evaluation of the bargaining positions taken by the parties at the negotiating table. To some degree, this may require an assessment of the proposals themselves.6 The Trial Examiner found, and we agree, that the proposals here were lacking in conces- sions of value and that it would be unreasonable to believe that Respondent tendered such offers without anticipating their immediate rejection by the Union. Although Respondent drafted several counterproposals and made some concessions as to jury pay and paid holidays, the agreements reached concerning even these matters were relatively tentative and conditioned upon reaching a complete and final contract. A compari- son of the minimal nature of Respondent's concessions on these issues with its position on wages and management rights only serves to bolster the conclusion that Respondent was not making a reasonable effort to resolve its differences with the Union.7 That Respondent was seeking a stalemate is further shown by the manner in which it broke off negotiations on July 8, 1964, asserting without justification that an impasse was reached over the checkoff and wage proposals.8 For the evidence clearly negates such a conclu- sion. Rather it indicates that neither party took an absolute position with respect to these issues, and the Union, at least, was still willing to negotiate at that time. Viewed in the light of all the circumstances of this case, Respondent's action in halting the negotiation-, can only be characterized as an attempt to contrive a deadlock which would relieve it of its obligations to bargain.9 Upon consideration of the totality of Respondent's course of con- duct, as described above, we find that Respondent's approach to nego- ployees; the right to close down the plant or any part thereof, or expand, reduce , alter, combine and transfer , assign, or cease any job, department , operation , or service; the right to move patterns and transfer work to other locations ; the right to establish plant rules governing the employees and to change such rules or make new rules so long as such changes or new rules are not in violation of any of the provisions of the agreement. The enumeration stated was in no wise to be deemed inclusive of all rights of manage- ment, but it was to be specifically agreed that any right of management not expressly limited by a provision of the contract was reserved to management * The proposed clause provided that the above management rights were not subject to the grievance procedure except and unless the right to resort thereto was expressly stated. S N.L.R.B. v. American National Insurance Co., 343 U.S. 395. 6 N.L R.B. v. Reed & Prince Manufacturing Company, 20'5 F. 2d 131 (C.A. 1). 'r Ibid. 8 Additional support for the conclusion that Respondent lacked a proper regard for the bargaining process was revealed by its president ' s handling other business matters during the course of one of the meetings and, in effect, detaching himself from the negotiations. e See Wheeling Pacific Company, 151 NLRB 1192. EAST TEXAS STEEL CASTINGS COMPANY 1083 tiations was superficial and completely inconsistent with the principle of good-faith bargaining.10 Accordingly, we conclude that Respond- ent violated Section 8 (a) (5) and (1) of the Act. 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 Recommended Order of the Trial Examiner, and orders that the Respondent, East Texas Steel Castings Company, Inc., Long- view, Texas, its officers , agents, successors , and assigns, shall take the action set forth in the Trial Examiner's Recommended Order 11 10 Ibid. 11 The telephone number for Region 16 , appearing at the bottom of the Appendix at- tached to the Trial Examiner' s Decision, is amended to read: Telephone No. 335-4211, Extension 2145. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge (16-CA-2060 ) filed on June 8 , 1964, by United Steelworkers of America, AFL-CIO (herein sometimes called the Union or the Charging Party), the General Counsel of the National Labor Relations Board, by the Regional Director of Region 16 (Fort Worth, Texas ), issued a complaint dated July 13, 1964, against East Texas Steel Castings Company , Inc. (herein sometimes called the Employer or the Respondent ), alleging violations of Section 8(a)(1) and (5) of the Act. The Respondent's answer filed on July 20, 1964, admits many of the facts but denies the commission of unfair labor practices and denies the legal conclusion that Respondent is an employer within the meaning of the Act. Prior to the date of the hearing on September 8, 1964, General Counsel's motion to reopen Case No. 16-CA-1945 (involving the same parties as herein ) and to consolidate Cases Nos. 16-CA-1945 and 16-CA-2060 was denied. Similarly, Respondent's motion for a bill of particu- lars was denied prior to and at the hearing on September 8, 1964. Pursuant to appropriate notice, a hearing was held before Trial Examiner Jerry B. Stone, at Longview , Texas, on September 8, 9, 10, and 11 , 1964 . All parties were represented at the hearing, participated therein , and were afforded the right to present evidence, to examine and cross-examine witnesses, to offer oral argument and to file briefs. Briefs were filed by the General Counsel and by Respondent and have been considered. Upon the entire record in this case and from my observation of the witnesses, the following findings of fact , conclusions of law, and recommendations are made.' FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER INVOLVED The facts pertaining to the business of the Employer involved are based upon the pleadings and admissions therein. East Texas Steel Castings Company, Inc., the Respondent herein , is, and has been at all times material herein, a corporation duly organized under, and existing by virtue of the laws of the State of Delaware, having its principal office and place of business in Longview, Texas. The Respondent, during the 12 months preceding July 13, 1964, a period of time representative of all times material herein, in the course and conduct of its business operations , shipped products valued in excess of $50,000 directly to points located outside the State of Texas. During this same period of time, Respond- ent sold and distributed products, the gross value of which exceeded $500,000. It is concluded and found that Respondent is now, and has been at all times mate- rial herein , an employer engaged in commerce within the meaning of Section 2(6) and (7 ) of the Act. 1 A stipulation by all parties with respect to certain written notations on various ex- hibits has been marked as Trial Examiner's Exhibit No . 1 and has been received into the record. Duplicate copies of the same have been waived. 1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE LABOR ORGANIZATION INVOLVED The facts pertaining to the labor organization involved are based upon a com- posite of a stipulation by the parties and the total evidence of record revealing the activities of Brantley and employee union committeemen on behalf of the labor organization. United Steelworkers of America, AFL-CIO, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Preliminary issues and findings Based upon the pleadings and admissions therein, the facts set forth in General Counsel 's complaint, paragraphs 6, 7, and 8, are herein found to be the facts. The complaint paragraphs setting forth such facts, as found , are herein set out. 6. At all times material herein , the following named person occupied the position set forth opposite his respective name and has been and is now an agent of Respondent acting on behalf, and is a supervisor within the meaning of Section 2(11) of the Act: John B. Fleeger ----------------------------- -------- President 7. All production and maintenance employees at the Employer's Longview, Texas, plant, including shipping and receiving employees, truck drivers, leadmen, working foreman, chemist and janitors , but exclusive of office clerical employ- ees, professional and technical employees , guards, watchmen and supervisors as defined in the Act, constitute an appropriate unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 8. On or about October 18, 1963, a majority of the employees of the Respond- ent in the unit described above in paragraph 7, by a secret ballot election con- ducted under the supervision of the Regional Director for the Sixteenth Region of the National Labor Relations Board, designated the Union as their represent- ative for the purposes of collective bargaining with Respondent and on or about October 28, 1963, said Regional Director certified the Union as the exclusive collective bargaining representative of the employees in said unit. The General Counsel's complaint, paragraph 9, further alleged as follows: 9. At all times since October 18, 1963, and continuing to date, the Union has been the representative for the purposes of collective bargaining of the employees in the unit described above in paragraph 7, and by virtue of Section 9(a) of the Act, has been, and is now, the exclusive representative of all the employees in said unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. The Respondent's answer was to the effect that he was without sufficient information to admit or deny the facts in General Counsel's complaint, paragraph 9. The evidence in the record reveals that on October 28, 1964, the Regional Director for Region 16 on behalf of the National Labor Relations Board issued a certification of representative in which it was certified that the Union herein had been designated and selected by a majority of the employees in the appropriate unit herein, and was the exclusive rep- resentative of all the employees in such appropriate unit. I find no basis in the evi- dence in this case to override the presumption of continuing exclusive representative status of the Union herein. Accordingly, I find that the factual allegation of General Counsel's complaint, paragraph 9, has been established, and so find and conclude. The General Counsel's complaint, paragraph 10, contained allegations as follows: 10. Commencing on or about December 17, 1963, and continuing to date, the Union has requested, and is requesting Respondent to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and con- ditions of employment, as the exclusive collective bargaining representative of all the employees of Respondent described above in paragraph 7. EAST TEXAS STEEL CASTINGS COMPANY 1085 The Respondent's answer filed in this matter denied the allegations contained in General Counsel's complaint, paragraph 10. The facts in the instant case are based upon a composite of the credited testimony of Brantley, Fleeger, Rice, McLaughlin, of notes of McLaughlin and Ellis, and various written letters and contract proposals in evidence as exhibits. A consideration of all the testimony, exhibits and notes reveals very little real dispute as to what occurred during the negotiation period. Such dispute as existed does not materially affect the real issues involved herein. The evidence is uncontradicted that prior to Decem- ber 17, 1963, exchanges of correspondence had been made between Brantley of the Union and Respondent' s manager, Rice, and President Fleeger, and that communi- cation exchange via letter and telephone had occurred between Brantley and Respond- ent's attorney, McLaughlin. The sum effect of letters and telephone conversations between Brantley and Mc- Laughlin, Rice, and Fleeger reveals that Brantley requested bargaining meetings for the purpose of negotiating a contract. On December 17, 1963, Brantley presented sub- stantially a contract proposal with supplements thereto. At least by December 19, 1963, by letter Brantley was requesting a countercontract proposal. Thereafter by letters to Respondent's attorney, McLaughlin, and by discussions at the various bar- gaining sessions, it is overwhelmingly clear that Brantley continued to request further bargaining. Brantley's letter to Respondent's attorney, McLaughlin, subsequent to the last bargaining meeting on July 8, 1964, clearly reveals his continuing request for further bargaining on contract provisions. In short there is no real issue, and the evidence overwhelmingly establishes the factual allegation of General Counsel's complaint, paragraph 10. I so conclude and find. B. The unfair labor practices The pleadings in this case reveal the central issue to be whether Respondent, com- mencing on or about December 17, 1963, negotiated with the Union in bad faith and with no intention of entering into any final or binding collective-bargaining agreement. By the very nature of a trial of an issue of good or bad faith intent-revealed by the testimony and notes of several witnesses and the documentary evidence of various contract proposals-many facts may be literally relevant but materially insubstantial. Apparently recognizing this, the General Counsel in his complaint specifically alleged that the Respondent had (1) since on or about December 17, 1963, refused to meet with the Union for reasonable periods of time at reasonable frequency for the pur- pose of collective bargaining; (2) on or about February 13, 1964, and thereafter, refused to bargain in good faith with respect to management rights, grievance proce- dures and arbitration; (3) since on or about June 18, 1964, refused to furnish the Union with requested data concerning the unilateral institution of a wage incentive plan pertaining to certain employee jobs; and (4) on or about July 8, 1964, insisted as a condition to continued meeting with the Union that the Union agree to the check- off clause, wage proposal clause, and holiday clause as proposed at that time by Respondent. The Respondent's answer denied that it had refused to bargain in good faith or had bargained in bad faith and averred good-faith bargaining and that on July 8, 1964, the bargaining had broken off on account of an impasse in bargaining. The pleading, the evidence as a whole, and the briefs, considered in consensus, reveal that the issue is whether the Respondent engaged in hard bargaining or whether its bargaining conduct was pretextuous and without good-faith intent. In determin- ing issues of good faith or bad faith intent in connection with bargaining negotiations of the type involved in this case, it is often necessary to consider in minute detail the meaning and substance of various issues. There are cases however in which the conduct of parties on certain issues or at certain times stands out as the points which tilt the scales of reason and add light and meaning to all other aspects in issue. So it is in this case that the facts concerning the Respondent's conduct on July 8, 1964, and thereafter, and the Respondent's conduct relating to its failure to furnish the Union with details of an incentive plan for maintenance men reveal the answer as to whether the Respondent was engaged in hard but good-faith bargaining or was engaged in bad-faith bargaining. In General The Union gave the Respondent rather lengthy and fairly complete proposals for a collective-bargaining contract at the negotiating session on December 17, 1963. Thereafter and until March 6, 1964, the parties discussed the Union's contract pro- posals." Commencing on February 13, 1964, the Respondent tendered certain writ- 2 The negotiating meetings of December 17, 1963, January 21 and 22, February 25, 26, and 27, and March 6, 1964. 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ten counterproposals and thereafter both parties tendered some written modifications and proposals. There were some proposals or modifications offered by the parties that had not been reduced to writing at the time negotiations broke off on July 8, 1964.3 Although the parties had agreed to some provisions it cannot be said that they had made much progress toward resolving basic contract issues. Thus the parties had agreed to certain language concerning purpose and intent, to certain provisions relative to overtime and to some other items. The Respondent had indicated willing- ness to pay employees who served on jury the difference between jury pay and regu- lar pay and to give an additional paid holiday? In general the parties' positions and the proposals relating to management rights, grievance procedures and arbitration reveal that the contract proposals and positions were so interrelated one to the other that all agreements or concessions were relatively tentative and based upon the con- tract proposals as a whole. It is clear from the expressed positions and the written proposals that neither party had moved substantially from its initial position in bar- gaining as of July 8, 1964. Brantley for the Union had agreed to the Respondent's grievance proposal in which the company president's decision was final and binding unless submitted to arbitra- tion as herein provided. Thus as of July 8, 1964, the grievance procedure and arbitra- tion was so tied together that it remained a vital issue.5 After the June 19, 1964, bargaining session the parties were still apart on many contractual issues. Among the issues that the parties were apart on were the issues relating to management rights, to dues checkoff, number of holidays, grievance pro- cedure and arbitration, and wages. The Events of July 8, 1964, and Thereafter The parties met around 8 p.m. on July 8, 1964, and continued negotiations for about 3 hours. At this session the Respondent presented written proposals relating to collection of union dues, an addendum to arbitration, rights of management, wages, and an addendum to no-strike-no-lockout. Since the Respondent's contention is that it broke off negotiations on July 8, 1964, because of an impasse on the checkoff clause and wages and since this appears to be the essential dispute, I find it proper to set out at this point the Respondent's pro- posals on collection of union dues (offered as an apparent proposal relating to the Union's checkoff clause ) and wages. COLLECTION OF UNION DUES The parties recognize that collection of dues is the responsibility of the Union and is in no way the responsibility of the company. Accordingly, the Union will attend to the collection of its own dues and fees from its members, and the company will in no way be held responsible for the collection of said dues and fees. It is further understood and agreed that while dues may be collected by desig- nated union stewards on company premises, they shall not be collected on com- pany time and permission of the stewards to collection of union dues on com- pany premises may be withdrawn by the company at any time their collection causes any disturbance of any kind. WAGES It is agreed that during the term of this contract, base wages shall be paid in the classifications of each employee within the range of the wages shown for each classification attached hereto as Appendix A, being the wage classification manual of the company heretofore furnished to the union by the company. However, it is agreed that in order to encourage individual effort on the part of the employees, management shall have the sole exclusive right to raise an employee's wages by granting merit increases within his classification so long as the individual employees wages are raised no more than 12¢ per hour during any twelve month period within a classification. And further, it is provided, in order to stabilize the economic position of the company, that in the event the s The bargaining sessions after March 6, 1964, were on March 17, 18, May 14, 26, 27, June 18, 19 , and July 8, 1964. * The Union had indicated it would accept seven instead of eight contended for holidays with pay. 5At one place in Brantley's testimony it is revealed that the phrase "unless submitted to arbitration" was added during negotiations. A composite of the testimony and exhibits reveals such to be true. EAST TEXAS STEEL CASTINGS COMPANY 1087 cost of living index as published by the U. S. Department of Labor in effect at the time this contract becomes effective lowers during the term of this contract, management may lower the base wage rate of each of its employees in the amount of It per hour for each 1 % or major fraction of a per cent that said cost of living index lowers during the term of this contract (provided however, there shall be no reduction of any employees wages within a classification for at least six months after the effective date of this contract.*) It is further understood and agreed that in the event it becomes desirable in the opinion of management to add or create new job classifications because of change in methods or different business , the company has the sole right to add such additional or new classification to Schedule A attached hereto and set the appropriate rate therefor, so long as such base rate is not less than $1 .40 per hour and not more than $2.00 per hour. * Orally added during negotiations on July 8, 1964 , by Respondent Counsel McLaughlin. During this meeting Brantley, for the Union, asked when the Respondent was going to give him a complete contract proposal as they had promised to do. President Fleeger for the Respondent told him that the Respondent had not gotten around to it, that they were planning on giving the Union the complete written proposal on July 15, 1964. The parties discussed the various written proposals given by the Respondent on this date and made no substantial change in position . Just before the end of negotiations Respondent's Attorney McLaughlin asked Brantley a series of questions to the effect inquiring whether Brantley was maintaining his position on certain contract proposals . Essentially McLaughlin inquired in effect if Brantley were insisting on an across-the-board increase in wages in the contract , and whether Brantley were insisting on a "checkoff" (dues deduction) clause in the contract. Brantley replied to the effect that he was so insisting, that he had to have a checkoff clause of some kind, and that he was willing to bargain on all issues. McLaughlin told Brantley in effect that the parties had had much discussion on these issues and that the parties were at an impasse and that it was futile to continue bargaining until the Union changed its position. The meeting broke up on this note. During the next few days Brantley and McLaughlin exchanged correspondence which in effect reiter- ated their positions as expressed at the July 8, 1964, meeting. Brantley, in his letter, continued to request a resumption of bargaining and expressed a willingness to bar- gain on all issues . McLaughlin continued to insist that the bargaining was at an impasse and that further bargaining was futile under such circumstances. It is the General Counsel's contention that Respondent's conduct at the July 8, 1964, bargaining session amounted to a demand that the Union accept Respondent's proposal to the effect that there would be no dues deduction checkoff by the Respond- ent. It is the Respondent's contention that an impasse existed as to the wage issue and as to the checkoff issue. Considering the Respondent's bargaining positions and its actions with respect to the incentive plan for maintenance men and as to a checkoff clause for dues, I am convinced that its overall bargaining proposals and its claim of impasse all constituted an implemented plan to bargain in bad faith with the Union. The expressed posi- tions and proposals of the Respondent otherwise were of such a nature that inde- pendently it might be said that it would be difficult to distinguish between good- or bad-faith intent. I therefore set out the facts and analysis relating to Respondent's actions relating to the incentive plan for maintenance men. The Refusal to Furnish Information Relating to an Incentive Plan At some time prior to the National Labor Relations Board representation election at Respondent's plant (conducted on October 18, 1963), the Respondent commenced thinking of an incentive plan for maintenance employees. On September 25, 1963, the Respondent commenced keeping records of certain man hours lost because of maintenance breakdown and after a 30-day record thereof based a temporary plan thereon and commenced the institution of such incentive plan on or about Novem- ber 4, 1963. Since Respondent believed that the records for 30 days did not consti- tute a true basis for a permanent incentive program, its plan envisioned a review at the end of each 30 days for a period of 6 months. Despite the fact that Respondent did not institute its temporary plan prior to the election because of the National Labor Relations Board representation election, it did not advise the Union of or consult with the Union about its plan at any time either around November 4, 1964, when it instituted its plan on a temporary basis or there- after until Brantley, for the Union, asked about the plan on June 19, 1964. 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On June 19, 1964, Brantley asked about the details of the plan and when it was instituted. Brantley was not informed of the exact date but was told that the plan had been instituted after the election and that it had been put in without consultation with him. President Fleeger offered to withdraw the plan until negotiated about and told Brantley that he would later on tell him the date the plan was initiated. Brantley told Fleeger that he did not want the plan stopped, that he wanted to think about it, and that he wanted to see that it was a fair plan. Thereafter and until July 10, 1964, the Respondent had not informed Brantley of the details of the plan or the exact date it was instituted. On July 10, 1964, Brantley, by letter to McLaughlin, requested a copy of the incentive plan. On July 16, 1964, McLaughlin, by letter, informed Brantley that he did not know whether there was a written copy of the plan, but if so, that one would be obtained from Manager Rice and transmitted to Brantley. Brantley, by letter of July 17, 1964, related to McLaugh- lin the issues relating to the breakoff in negotiations on July 8, 1964, the issues relat- ing to the hiring of new employees and his request for the incentive plan put into effect on the maintenance employees, and requested that McLaughlin set up dates for meet- ings to talk about these issues. McLaughlin, by letter on July 24, 1964, submitted to Brantley a copy of an incentive plan that he stated was in effect and informed Brantley that this was the only writing that was in existence pertaining to said plan. Neither McLaughlin nor the Respondent otherwise at that time or thereafter set up dates for negotiations concerning the plan. The Respondent's very actions in delaying the institution of the incentive plan for maintenance men until after the election on October 18, 1963, reveal that it was cog- nizant of the fact that there were possible legal impediments upon its rights to institute such a plan pending the election. I am convinced that Respondent knew, as the written plan indicated, that the plan as instituted on November 4, 1963, needed further study and review and was in effect a temporary plan to be used until a decision could he made as to a permanent plan. The continued review of the plan on a 30-day basis for 6 months ending approximately around June 4, 1964, and during the time of nego- tiating meetings between December 17, 1963, to June 1964, and the apparent decision that the plan would be permanent around June 1964, all without advice to or con- sultation with the Union, clearly reveal the Respondent's disregard of the Union's bargaining rights and reveal that Respondent was intent on unilaterally determining such incentive plan. Under such circumstances, and in view of Brantley's request for the dates and details of the incentive plan on June 19, 1964, 1 am convinced that Respondent's failure to transmit the written copy of the incentive plan until after Brantley's written request of July 10, 1964, and after complaint was issued in this case, and Respondent's failure to transmit the dates of institution of the plan until the hearing in this matter further reveal that Respondent attempted to avoid negotia- tions as to the incentive plan. Considering the foregoing and all the evidence in this case, I am convinced that the General Counsel has established that Respondent failed and refused to provide the details and facts pertaining to the incentive plan for maintenance men on and after June 19, 1964.6 I conclude and find that this conduct is violative of Section 8(a)(1) and (5) of the Act. The Alleged Impasse on the Union Checkoff-Dues Deduction-Wages As indicated, the Respondent proposed on July 8, 1964, a clause in the area of checkoff or dues-deduction clauses. Briefly stated, the Union's position throughout negotiation on dues checkoff 7 was that the Union needed a dues checkoff provision to simplify "handling of monies," and to eliminate questions of improprieties, and that Respondent handled other types of deductions for its employees. The Respondent's position throughout negotiations on dues deductions was that the collection of union dues was the Union's problem and that the Respondent did not want to involve itself in union business. The parties appear to have adequately discussed their position in this regard.8 The Respondent's proposal as to collection of dues on July 8, 1964, if offered in good faith represented a slight change in position. Despite this, McLaughlin questioned Brantley as to 8 The Respondent's transmittal on July 24 , 1964 , of a copy of the incentive plan without information of the date that it was decided as a permanent plan or information as to the monthly reviews and actions thereon is not sufficient response or compliance with the Union's request. 7 Agreement whereby the Respondent when authorized by the individual employee would deduct from wages the employees union dues and transmit the same to the Union. 8 Apparently the Union felt that the Respondent's records as to the dues deduction eliminated area of argument as to the funds involved. EAST TEXAS STEEL CASTINGS COMPANY 1089 whether he was insisting on a checkoff provision in the contract and when Brantley replied that he had to have a checkoff provision of some kind but was willing to bar- gain on this and all issues, McLaughlin informed Brantley that the parties were at an impasse on this (and wages) and that further bargaining was futile. Exchanges of letters by Brantley and McLaughlin reiterated the same positions. In my opinion Manager Rice's testimony reveals Respondent's true position on a checkoff provision.` Q. The question I am asking you is, was the company's position consistently, from the beginning, that they would not grant a check-off? A. We had not absolutely refused to grant a check-off. Q. What position did the Company first take in regard to the check-off? A. That we did not feel it was necessary to enter into the Union's business, and it was their business to collect their own dues, and we did not feel responsible for it. Q. They would not agree to a check-off? A. We did not agree to a check-off at that time. Q. That was your position at the beginning of the negotiations, when it was first discussed? A. Yes, when it was first discussed. This was the second or third meeting, I believe. Q. Yes, I am not saying that it happened at the first meeting, but that was the Company's original position? A. Yes, sir. Q. And that was also the Company's position in regard to check-off at the last meeting, was it not? A. This was our position at the point. However, we had taken the position that we would go back through this contract again until we did come to some agreement. Q. On check-off? A. It was open for negotiations. We had not absolutely refused the check- off system to the Union. Q. You never offered any sort of check-off system to the Union, did you? A. Not to my knowledge, no, sir. Q. And actually as a matter of fact, your position at the end of bargaining in regard to check-off was essentially the same that you took the first time in regard to a check-off, was it not? A. It was thrown at us that he would not sign the contract without the check- off system, and Q. Well, I am not asking you that question, Bill. What I am asking you is; is it not true that the Company's position on July 8, in regard to the check-off was the same position that they took when the check-off was first discussed during the course of bargaining? A. We had not had a chance to alter that position. Q. Well, I am not asking you whether you had a chance. Was it the same? A. I cannot speak for the policies of the Company. This would be Mr. Fleeger's area and I do not know if he had changed his mind or not. I understood through conversations with Mr. Fleeger that he was open for negotiations. Q. Well, I am not asking you what Mr. Fleeger has in his mind or what he might think in regard to check-off. What I am asking you is insofar as the Com- pany stating a position with the Union-making its thoughts known to the Union -the Company's position in regard to check-off, their position was the same at the last negotiations meeting as it was at the first one, was it not? A. Well, we were adamant on it, yes, sir. Q. And during the course of bargaining between the first time it was discussed and the last time, the Company's position never changed during this interval, in regard to the check-off when I say Company's position, I mean in conveying thoughts to the Union? A. (Pause.) I am trying to think exactly what was said at these meetings without pinning down a date. I believe in the meeting prior to the discussion of check-off that 6 Manager Rice attended all of the bargaining sessions with President Fleeger and Attorney McLaughlin . This does not mean that I credit that when Rice used the words "negotiate" that this connoted "negotiate in good faith." 206-446--66-vol. 154-70 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Company had stated a position that we would take it under advisement to Mr. Brantley and the subject was passed and not brought up again until the last meeting of the negotiations of July 8th. Q. Well, Bill, is it your testimony from your recollection that the only time the check-off was seriousely discussed or discussed at any length and detail was on July 8th, is that your recollection? A. No, sir. It was discussed in prior meetings. Q. All right. Now, in these prior meetings did the Company not take the position that they were opposed to check-off and they would not give the Union a check-off? A. We took the position-the Company took the position that we were opposed to check-offs, but I do not believe it was ever said, and my notes will reflect if you care to read through them that we never absolutely refused a check- off to the Union. Q. Well, you never offered them a check-off, did you? A. No, sir. We had not had time. Thus it may be summarized that the Union's position on July 8, 1964, was that it wanted a checkoff provision of some kind and was willing to bargain about it, and that the Respondent's position (as revealed) was that it was against a checkoff provision but had not absolutely refused a checkoff provision and was willing to nego- tiate hard about such a provision. Bargaining positions such as this do not constitute an impasse, and under such circumstances a Respondent who breaks off negotiations on a claim of impasse reveals that his real intent is to bargain in bad faith and not with a good-faith intent.10 The Union's position as to wages was that it desired an across-the-board wage increase. At one point the Union expressed that the increase should be a 50 cents an hour increase across the board. The Union also expressed opposition to the Employer's right to grant merit increases in wages unilaterally or to have a spread in a base rate classification. The Respondent's position on wages prior to July 8, 1964, was that it paid wages which compared well with other companies in the industry, that it was not going to grant an across-the-board wage increase and that it wanted freedom to grant merit wage increases and to rise and lower wages.ll The parties adequately discussed their positions and reasons in this regard. The Respondent's July 8, 1964, written wage proposal while not giving an overall wage increase did guarantee some degree of security as to continuation of current wages and some limitation on Respondent's right to adjust wages. At the July 8, 1964, meeting McLaughlin asked Brantley if he were still insisting on an across-the-board wage 10 Briefly stated, certain other facts in evidence are consistent with this finding of bad-faith motivation. Certain of these facts, although consistent with bad-faith motiva- tion, however, are not relied on by me inasmuch as the surrounding circumstances as to such facts create an aura of unreliability as to true meaning. Thus I place no weight upon the fact that President Fleeger berated a union negotiating committeeman at a bargaining session about an instance of alleged improper statements by the committee- man in the plant. Similarly I place no weight upon remarks at a bargaining session directed to a committeeman about obtaining permission to get off to attend negotiations. Additionally, r attach no weight to the fact that the Respondent refused to meet for negotiations at the plant, or to the fact that McLaughlin stated they would not meet in an "outhouse" at the plant. Responsibility for meeting places is a joint responsibility of the Union and the Respondent, and the Respondent shared expenses and otherwise met such a responsibility. Similary I attach no weight to the fact that Respondent denied the Union the use of Respondent's bulletin board. The failure to submit a complete written counterproposal in and of itself, under the circumstances, would add no weight to the persuasive facts herein. I have considered and give weight to the fact that Respondent's secretary took notes at some of the meetings up and until March 6, 1964, without adequate explanation. Rice testified that the notes taken by the secretary were to enable Respondent to know the position of the parties as to bargaining. How- ever the notes were not transcribed until just before the unfair labor practice hearing in the instant case. Under such circumstances, I am convinced that Respondent in further- ance of its desire to bargain in bad faith anticipated the unfair labor practice hearing and, knowing its surface bargaining plans, had such notes taken. I also, under all the facts, consider Fleeger's handling of the other business matters and in effect detaching himself from bargaining at one of the bargaining meetings when he had final real authority, to indicate a lack of proper regard for bargaining negotiation. u At one point McLaughlin described a satisfactory wage increase as "nothing." EAST TEXAS STEEL CASTINGS COMPANY 1091 increase in a contract and Brantley replied that he was so insisting but that he was willing to bargain about this and all of the other issues.1-' As indicated previously, McLaughlin then referred to the amount of discussion on the isssue and stated that the parties were at an impasse on wages and the checkoff provision and that until the Union changed its position that further bargaining would be futile. It may be noted that Respondent during negotiations granted merit wage increases to nine employees without consultation with the Union. The Respondent did however, upon complaint by Brantley, agree to cease granting such merit wage increases until an agreement could be reached. A consideration of Respondent's actions relating to the incentive plan for maintenance men, to the granting of merit wage increases without consulta- tion with the Union, and its wage proposals and positions as a whole convincingly reveals that Respondent's attitude toward wage negotiations was one in which Respondent ignored the Union whenever it could. A consideration of Respondent's expressed position on checkoff and dues deduction as contrasted to its real but undis- closed position and claim of impasse as to the checkoff position when none existed convinces me that Respondent's wage proposal of July 8, 1964, was not made in good faith but was offered and coupled with its impasse claim thereon as part of a bad- faith bargaining plan of action. Considering all of the foregoing, I am convinced that Respondent's proposals on July 8, 1964, as to collection of union dues and wages were both made in bad faith and that its claim of impasse was not made in good faith but as part of a plan to refuse to bargain in good faith with the Union and in fact to bargain in bad faith without intent to negotiate an agreement. I so conclude and find the facts. To offer proposals in bad faith and to break off negotiations on a claim of impasse was tantamount to requiring the Union to give up its position in return for the opportunity of future meetings. To make such proposals of insignificant value and in bad faith and to break off negotiations on a claim of impasse, known to not exist, clearly reveals that Respondent was attempting to offer to the Union proposals which it knew and believed were not acceptable to the Union. Rights of Management-Grievance-Arbitration The Respondent 's right of management proposal of July 8, 1964, which substan- tially conforms to all of its rights of management proposals and which substantially reveals its position throughout bargaining in this regard, is herein set out. RIGHTS OF MANAGEMENT The management of the business and plant and direction of the working forces, including the right to hire, suspend , or discharge for cause or transfer, and the right to relieve employees of duty because of lack of work or foi other reasons, is vested exclusively in the company provided this section will not be used to discriminate in favor of or against any member of the union , but it is expressly understood that all rights of management aie reserved to management unless specifically and explicitly limited by a provision of this agreement. In the exercise of the rights so reserved to management, it is specifically under- stood and agreed that those rights include, unless limited by specific provisions of this contract , but are not limited to the following: A The exclusive right in accordance with its judgment to determine the size and composition of the work force, determine the number of shifts and the hours of work of each shift; B. The right to allocate and assign work, or transfer work out of the bargain- ing unit or reduce the work force; C. The right to install new equipment and if, in the sole judgment of manage- ment fewer operators are required, reduce the work force or distribute the available work among the employees and the shifts as in the sole judgment of management is for the best interests of the company and the employees. D. The right to lay off employees when in the sole judgment of management there is a lack of work at the Company's plant; E. The right to fix standards and quality of work to be done; F. The right to reprimand, suspend, discharge or otherwise discipline employ- ees for cause. G The right to transfer men from one shift to another as in the judgment of management is for the best interests of the company; is There is a slight dispute as to whether McLaughlin's inquiry as to what Brantley was insisting upon went into other issues. In view of the subsequent correspondence between McLaughlin and Brantley it is clear that the continuing issue was checkoff- and wages-as to the impasse 1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H. The right to introduce new or improved production methods and formu- late and install incentive systems in any department or on any shift that would in the opinion of the company be beneficial to the company, but the incentive system to be installed within the limitations provided in paragraph ____ here. I. The right to designate the place of manufacture and to sub-contract work or contract out work when, in the opinion of management, it would be for the best interests of the company; J. The right to limit, as in the opinion of management, is for the best interests of the company union activity on company property and to prohibit the same on company time; K. The right to take such action as in the sole judgment of the company is necessary to eliminate any interruption of work, L. The right to control the type of pioduction, the volume of production and the quality of production, M. The right to schedule its operations as in the sole opinion of management is for the best interests of the company; N. The right to hire, promote, and retire employees as in the opinion of management is for the best interests of the company; 0. The right to demote, the right to transfer, lay-off, and re-call employees to and from work as management in its sole judgement deems is for the best interests of the company; P. The right to determine the starting and quitting time of the employees, the number of hours the employees shall work and the shifts to be worked, Q. The right to maintain the efficiency of employees; R. The right to determine the number of employees on a job or machine and to select and assign new employees, S The right to set up safety rules and enforce penalties for their violation. T. The right to close down the plant or any part thereof, or expand, reduce, alter, combine and transfer, assign or cease any job, department, operation or service, contiol and regulate the use of the machinery, equipment and property of the company as in the opinion of management will be for the best interests of the Company. The right to determine the number, location and operation of plants and divisions and departments thereof. The right to determine the product to be manufactured and the schedules of production U. The right to move patterns and transfer work to other locations when in the opinion of management such is deemed for the best interests of the company, V. The right to require employees to obey orders even though deemed by such employee or employees to be in violation of this contract unless and until it is established that such order is in violation of the contract according to law or the procedure herein provided for; W. The right to establish plant rules governing the employees and to change such rules or make new rules from time to time so long as such changes or new rules are not in violation of any of the provisions of this agreement. X. The right to alter machine speeds; Y. The right to determine the physical qualifications of employees to perform the work of the company and to require such physical examinations and medical procedures as in the opinion of management is necessary and to relieve employ- ees from their work by transfer, demotion or discharge when in the sole judg- ment of management the physical condition of the employee involved deems such advisable. The term "cause" as used above includes but is not limited to the violation of any work rule of the company, dishonesty, incompetence, inefficiency, insub- ordination, negligent work, spoiling work, damaging machinery or equipment, inis-statement upon application for work or any other papers required by the company, engaging in a strike, work stoppage, or slow-down, or failure to abide by any of the terms of this agreement. The foregoing enumeration of rights of management are in no wise to be deemed inclusive of all rights of management, but it is specifically agreed that any right of management not expressly limited by a provision of this contract is reserved to management. It is also understood and agreed that in the event any specific right reserved to management as set out above is governed by another provision of this agreement, the exercise of the specific right set out shall be exercised by management only to the extent that the exercise of the same does not violate that provision of the contract where such item is specifi- cally discussed and contracted as to. It is also understood and agreed that the foregoing enumerated terms reserved to management and all other rights of management not limited by clear and explicit language of this contract are not subject to grievance procedure provided for in this contract except and unless EAST TEXAS STEEL CASTINGS COMPANY 1093 where such item is specifically contracted as to, a right to resort to the grievance procedure is expressly stated. However, the company agrees that it shall not exercise any right so as to discriminate in favor of or against any employee because of his union activity or lack of union activity. The Company's not exercising any function hereby reserved to it, or its exercising any such function in a particular way, shall not be deemed a restric- tion or a waiver of its right to exercise such function, or preclude the company from exercising the same in some other way not in conflict with the express provisions of this agreement. Further, nothing herein contained shall be con- strued as a restriction or a waiver of any of the rights of management not listed above and not specifically surrendered by some other provisions of this agree- ment, whether or not such rights have been exercised by the company in the past. Throughout negotiations the Union's position of management rights was that it desired a simple management rights clause, that Respondent did not need a detailed management rights clause, that the Respondent's proposal granted sole control to Respondent over many areas relating to wages, hours and, that an honorable union desiring to represent employees could not accept the Respondent's proposal. The Respondent's position was that a simple management right did not sufficiently spell out such rights, and that the current status of law made it necessary to have much of the management rights proposed spelled out. Both parties adequately set forth and discussed their reasons for their positions in this area of contract proposals. Grievance Procedures-Arbitration The crucial issue in the discussions relating to a grievance procedure proposal was centered upon the fact that the Respondent wanted President Fleeger or his designated agent to ultimately have the final and binding decision. The Respondent's grievance procedure proposal was substantially agreed to when language was added to the section of the proposal which provided that the president or his designated agents "decision shall be final and binding" unless submitted to arbitration as herein provided. The Respondent's arbitration proposals pending as of July 8, 1964, are herein set out. ARBITRATION Whenever a grievance subject to arbitration under the provisions of this agree- ment has been processed through the grievance procedure and the answer arrived at is not agreeable either to the Union or to the Company, on written notice by the dissatisfied party (meaning the Company or the Union) within five days after the final decision under the grievance procedure hereof, notifying the other party that it desires to have the matter arbitrated, the following procedure shall be followed. (1) If within three days after receipt of notice that a party desires the matter to be submitted to arbitration, the other party claims that the matter is not subject to the arbitration provisions of this agreement, then the matter of arbi- trability shall be first decided by a Court of Law. (2) If neither party claims within such three day period that the matter is not subject to arbitration, each the Union and the Company shall forthwith select an arbitrator. These two members shall meet within ten days after the matter is submitted to them, and in the event these two members fail to agree within ten days thereafter, they may, by mutual agreement select a third impar- tial arbitrator and submit the grievance to him for decision and his decision shall be final and binding upon both parties hereto. The parties agree that the power and jurisdiction of any arbitrator or arbi- trators chosen under the terms of this agreement, shall be limited to deciding whether there has been a violation of a provision of this agreement, and shall be limited in their decisions to matters explicitly set out in the originial written grievance filed under the grievance procedure hereof. The arbitrator or arbi- trators shall not be empowered, and shall have no jurisdiction, to base his or their award on any alleged practice or oral understandings which are not incor- porated in writing in this agreement, and he or they shall have no power to add to, or subtract from, or modify any of the terms of this agreement and he or they shall have no power to establish wage scales or change any wage. (3) It is further agreed between the parties that the following additional limitations are imposed upon the arbitrators' powers and duties (a) They shall have no power to substitute their judgment for the judgment of the company or overturn the decision of the company president or his designated representative arrived at under the grievance procedure herein provided for, 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unless the decision of the company is arbitrary and capricious to the degree that it is not supported by substantial evidence. If the decision of the company is supported by substantial evidence, the arbitrators shall have no power to set it aside or decide contrary thereto. By the term "substantial evidence" is meant sworn testimony, oral or written, of any witness to facts that would support or justify the decision and judgment of the company arrived at under the grievance procedure of this contract. (b) They shall have no power to decide any question which, under this agreement, is within the right of management to decide, nor shall they have any power to decide matters arising under the No Strike- No Lockout provisions herein. (c) In no event shall the company be required to pay back wages prior to the time a written grievance is filed with the company. (d) If at any time there be any award of back wages, the same shall be limited to the amount of wages the employee would otherwise have earned from his employment with the company during the period involved, less any unemployment or other compensation for personal services or other gratuities period. (4) The parties further agree that in the event any matter is submitted to arbitration, each the Union and the Company will pay one-half the cost thereof. ADDENDUM TO COMPANY ARBITRATION PROPOSAL (5) It is further agreed that in the event the arbitrator selected by the com- pany and the arbitrator selected by the Union are unable to dispose of the matter by agreement between themselves and are unable to agree upon a third arbi- trator, then in such event, it is agreed that the company and the union shall jointly request the then acting senior U.S. District Judge for the Eastern District of Texas to name a third arbitrator who shall be a resident of Texas and a licensed attorney, and the opinion of any two of the then three arbitrators as to the disposition of the matter up for arbitration shall be final and binding upon the parties. The Union's initial position on grievance procedure and arbitration was that it was willing to grant a no strike-no lockout clause, that it desired a grievance pro- cedure whereby if the parties did not ultimately agree on the grievance disposition that a neutral arbitrator would decide the issue. The Respondent's initial position on grievance procedure and arbitration was that it was willing to accept and desired a no-strike-no-lockout clause, that it desired a grievance procedure with the president of the Respondent or his designated representative having the final and binding decision, and that it did not desire arbitration. Ultimately the parties agreed upon the language in Respondent's grievance proposal (as modified) which in effect made Respondent's president or his designated representative have the final and binding decision authority unless submitted to arbitration. At this point the issue developed as to whether an agreeable arbitration clause could be developed and later as to the means of selection of an arbitrator. The Respondent' final arbitration proposal provided that if either party desired, the matter of arbitrability should first be decided by a court of law. The Respondent's final arbitration proposal contained limitations on the powers of the arbitrator(s). The Union's position was that the Respondent's arbitration clause coupled with its Rights of Management proposal actually in effect gave the Respondent president or his representative final say so as to grievances even if the matter did get to arbitration. The parties appear to have adequately set forth their reasons during negotiations on these clauses. The very nature of Respondent's proposals on Rights of Management-grievance procedures and arbitration suggest a question as to whether the Respondent could reasonably believe that a union could accept such a proposal and effectively represent employees. Under the circumstances of this case I do not find it necessary to deter- mine whether these proposals in and of themselves and under a different context of facts might independently lack sufficient probative weight to reveal bad-faith bargain- ing. Certainly such proposals offer little to reveal a good-faith intent. In this case, however, the Respondent's proposals otherwise offered little concessions of value and were offered in a context of factors which persuasively reveal a bad-faith motiva- tion on the Respondent's part in its negotiations. Respondent's bad-faith intent revealed by its July 8, 1964, conduct relating to its collection of union dues, and wages proposals and its spurious claim of impasse as a reason to break off negotia- tions, and its conduct relating to review and study of its incentive plan for mainte- nance men and unilateral determination thereof, constitute persuasive evidence to EAST TEXAS STEEL CASTINGS COMPANY 1095 reveal that its offer and position on Rights of Management, grievance procedure and arbitration was made with a design to offer to the Union proposals of such a nature that it thought the Union could not accept them. I am convinced from the foregoing and all the evidence that the Respondent's conduct as regards management rights, grievance procedure and arbitration and its contract proposals as a whole constitute conduct revealing an attempt to bargain in bad faith and without intent to enter into a final and binding agreement. I so conclude and find. In short, the General Counsel has established by a clear preponderance of the evidence that the Respondent has engaged in pretextuous and bad-faith bargaining with no intent to enter into a final and binding collective-bargaining agreement. Such conduct is violative of Section 8(a) (1) and (5) of the Act.13 Scheduling of Meetings There remains one other issue raised by the pleadings, whether the Respondent, since on or about December 17, 1963, has refused to meet with the Union for reason- able periods of time at reasonable frequency for the purpose of collective bargaining. General Counsel witness Brantley and Manager Rice had a conversation shortly after and on the same day that the Union won the National Labor Relations Board election on October 18, 1963. Rice congratulated Brantley and told him that he assumed they would be seeing each other. Brantley stated that they should get together as soon as the Union was certified and start negotiations. Rice told Brantley that he was tired and hoped to take a 30-day vacation.14 Later around November 15, 1963, Brantley saw J. D. McLaughlin, Respondent's attorney in Longview, Texas, and discussed certain matters and made requests for certain classification and seniority lists and other matter and for permission to use the company bulletin board. Brantley followed this with a request by letter on November 19, 1963, to Respondent's Manager Rice for the same material and also requested the suggestion of dates to get together to arrange negotiations. Respond- ent's President Fleeger replied to Brantley by letter of November 26, 1963, setting forth that the classification or seniority lists would be made available immediately after Thanksgiving week and denying the Union the right to have space on the bulletin board. Fleeger's letter further stated that he was sure that the Union had ample means of advising the people of union meetings and union activities other than by use of the company bulletin board. Fleeger, in his letter stated that he could be available for negotiation after 5 p.m. on four different dates (December 17 and 19, 1963, and January 2 and 4, 1964). Fleeger set forth that one restriction was noted and that was that his legal counsel McLaughlin had to be available and thus that the dates were contingent upon McLaughlin's availability. Fleeger suggested that Brant- ley confer with McLaughlin as to which of these dates would be mutually acceptable. On December 2, 1963, Manager Rice submitted to Brantley the requested list of employees showing seniority , classifications, and wage rates. By letter of November 29, 1963, Brantley advised McLaughlin of Fleeger's avail- able dates and suggested a meeting on December 17, 1963, at 5 p.m. At some time between November 29, 1963, and December 16, 1963, Brantley and McLaughlin agreed on this meeting date. Brantley further requested that the meeting be held at the company plant. McLaughlin informed Brantley that President Fleeger would not agree to a meeting at the company plant. The parties met on December 17, 1963, at 5 p.m., as agreed, at the Longview Hotel and shortly thereafter moved to the Chamber of Commerce Building for their nego- tiation session . The negotiating session lasted about an hour and a half. During this session Brantley made a few remarks about himself, presented lengthy contract proposals which may be summarized as covering a substantially complete contract proposal. The parties discussed the time for the next bargaining session and agreed upon January 21, 1964. Thereafter the parties met and discussed the union pro- posals, modifications and company proposals submitted at various times on various agreed upon bargaining meetings. The evidence reveals that as to some of the agreed upon bargaining meetings that the actual starting times of the meetings was later Is See "M" System, Inc., etc., 129 NLRB 527; N.L.R.B. v. Herman Sausage Company, Inc., 275 F. 2d 229. 14 Based on a composite of the credited testimony of Brantley and Rice. I am con- vinced that Brantley accurately recalled what he said to Rice, and that Rice accurately recalled what he said and that both did not fully recall what the other said on this occasion . I am convinced that Brantley construed Rice's statement as he testified that Rice was unavailable for 30 days. To the extent that either testimony is not set forth as part of the factual finding it is not credited for the reason herein indicated. 1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD than agreed upon because of late arrival of the parties. Thus on several occasions Fleeger was late because of late arrival by plane, on several occasions there were mixups as to the places where the parties were to meet or accommodations. As to one occasion there appears a dispute whether negotiations started while McLaughlin ate breakfast or started later. I am not convinced from the evidence that such delays were intentional and attach no significance thereto. The parties did meet on the dates agreed to excepting on February 26, 1964, when Brantley for the Union requested a postponement of the morning meeting so that he could attend a Texas Employment Commission hearing. From the evidence as a whole it appears clear that the Respondent was not opposed to this continuance but in fact wanted the same continuance. The meeting scheduled for May 5, 1964, was postponed to May 14, 1964, because Union Representative Brantley had to serve on a jury during this time. The meeting on May 26, 1964, was postponed from day to night because of McLaughlin's request relating to his other business commitments. In sum from the evidence, the witnesses are in general agreement except as to minor variation as to specific time that the following bargaining sessions took place at approximately the time indicated as follows. Date Time meeting started Time meeting ended Date Time meeting started Time meeting ended 12/17/63________ 5:00p.m--------- 6:30 p.m. 3/18/64--------- 7:20 p.m --------- 10:30 p.m. 1/21/64--------- 7:20 p .m-------- 10:30 p .m. 5/14/64--------- 7:00 p .m --------- 10:00 p.m. 1/22/64_________ 5:45p .m--------- 8:30 p .m. 5/26/64--------- 7:55 p.m--------- 11:00p.m. 2/13/64 --------- - 8:20 p .m --------- 11:00 p .m. 5/27/64 --------- 1:00 p .m--------- 7:00 p.m. 2/25/64--------- I 8:00 p .m --------- 10:30 p .m. 6/18/64--------- 1C:15 a.m-------- 12:10 p.m. 2/26/64--------- - 6:00 p .m --------- 11:00 p.m. 6/18/64--------- 1:30 p .m--------- 5:30 p.m. 2/27/14 -------- 7:00 a .m--------- 11:00 a.m. 6/18/64--------- 7:30 p.m ----- ---- 10:00 p.m. 3/6/64___ 10:45 a.m-____-__ 12:45 p.m. 6/19/64 _________ 9:40 a .m--------- 4:00 p.m. 3/6/64 _ 3:10 p .m --------- 5:30 p.m. 7/8/64 ---------- 8:00 p.m --------- 11 :00 p,m, 3/17/64___-_____ 7:45 p.m --------- 10:30 p.m. As to the scheduling of the meetings, it may be summarized that after Fleeger set forth the four dates he was available for the initial bargaining session that Brantley selected and suggested the date of December 17, 1963, to McLaughlin. At the December 17, 1963, bargaining session and after the receipt of what appears to be lengthy union contract proposals, McLaughlin and Fleeger's discussion relating to the holiday time, to Fleeger's business conflicts and to the need for time to study the proposal contributed to the selection of January 21, 1964, as the next bargaining date. Under such circumstances and in total context with all of the evidence relating to the scheduling of the meetings, I see nothing in the delay from December 17, 1963, to January 21, 1964, to reveal that the Respondent was refusing to meet at reasonable times and frequency. On December 19, 1963, by letter Brantley requested that the Respondent submit written counterprosposals and set aside some dates for bargaining at the time of the resumed bargaining. On January 17, 1964, McLaughlin, by letter replied to Brantley rejecting the idea of written counterproposals on the ground that he thought it best to proceed on a discussion of the Union's proposals and to attempt to reconcile the differences. On January 21, 1964, the parties met and the Respondent at this meet- ing revealed its willingness to go ahead on the day of January 22, 1964. Brantley, for the Union, had commitments during the daytime and the parties agreed to meet on the night of January 22, 1964. It would appear that McLaughlin and the Respondent could have contributed to more efficient usage of bargaining time by answering Brantley's letter before January 17, 1964, and by narrowing the bargaining issues by submission of the Respondent's position in writing as a counterproposal. Under the circumstances, however, this deviation from maximum efficiency, when considered with all the evidence, including the fact that the Respondent did make itself available for bargaining during the daytime on January 22, 1964, and further accommodated itself to the Union's daytime conflict and agreed to meet on the night of January 22, 1964, does not reveal that Respondent was refusing to meet with the Union at reason- able times and frequency. During the meeting of January 22, 1964, the parties discussed the time for the next meeting. Brantley, for the Union, had a conflict on February 17, 1964. McLaugh- lin, for the Respondent, had a Board hearing on February 10 and court cases princi- pally around February 17, 1964. Thus the principal desisting factor as to an early meeting was McLaughlin's problems. There was a discussion of a meeting date EAST TEXAS STEEL CASTINGS COMPANY 1097 around February 25, 1964. Brantley argued for an earlier date. McLaughlin agreed to meet on February 13, 1964, provided he could get out of some court engagements. The parties thereafter met on February 13, 1964. Considering the foregoing and all the evidence, I am convinced that the delay to meet between January 22, 1964, and February 13, 1964, does not reveal that the Respondent refused to meet with the Union for reasonable periods of time and at reasonable frequency. At the meeting on February 13, 1964, Brantley complained about meeting a day here and there and told McLaughlin that he was going to show up on February 14, 1964. McLaughlin reiterated his schedule through the week of February 17, 1964, and suggested February 25 at night and 26 in the daytime as dates. McLaughlin complained about meeting at night and having to wait over until the next night for meetings. The parties agreed to meet on February 25, 1964, at night. On Febru- ary 19, 1964, Brantley, by letter, summarized his version of what had transpired and informed McLaughlin that he was available day and night for meetings and that he was available on February 25 and 26, 1964, for the discussed meetings. McLaughlin, by letter of February 24, 1964, replied to Brantley, told Brantley that the Respondent was available on February 25 and 26, 1964, but that he was committed for Febru- ary 27, 1964, and that arrangements would have to be made on February 25 and 26, 1964, for subsequent meetings. The parties met on February 25 and 26, 1964, and Brantley continued to insist on more and closer spaced meetings. McLaughlin agreed to meet on the morning of February 27, 1964, but pointed out that he had to make his previous engagement of February 27, 1964. On February 27, 1964, McLaughlin for the Respondent insisted that the Respondent could not meet until March 6, 1964. The parties met on March 6, 1964. At this meeting Brantley brought up the ques- tion of the time for the next meeting. Respondent's President Fleeger was not avail- able the next week (March 9-13). Brantley was available only during the nights of the next week (March 9-13) and McLaughlin had a court case on March 17, 1964. The parties agreed to meetings on March 17 and 18, 1964. The parties met on March 17 and 18, 1964. During these meetings the parties dis- cussed recessing the negotiations for preparation for an unfair labor practice hearing on March 24, 1964. The parties recessed without agreement for a new meeting date. Subsequent to the March 24, 1964, unfair labor practice hearing, Brantley, around April 15, tele- phoned McLaughlin about scheduling a new meeting. Brantley was not available during the week of April 21, 1964, and McLaughlin and Brantley discussed a meeting around April 27, 1964. McLaughlin by letter dated April 22, 1964, informed Brantley that he had been unable to contact Fleeger with reference to a new meeting but pointed out that he had set forth that his availability on April 27, 1964, was contingent upon getting out of a court case during that week and pointed out the necessity to pre- pare a brief for filing in the unfair labor practice case by May 1, 1964. McLaughlin suggested a meeting on May 5, 1964. Thereafter the parties agreed to meet-on May 5, 1964. Brantley, however, had to postpone the May 5, 1964, scheduled bargaining meeting because of jury service and the parties next met on May 14, 1964. At the May 14, 1964, meeting the parties discussed the scheduling of the next meet- ing. The evidence is scanty and unclear as to what was said by the parties in this regard. In any event the parties agreed to a daytime meeting on May 26, 1964, and a possible meeting on May 27, 1964. On May 22, 1964, Respondent's Attorney McLaughlin, by letter, requested postponement of the May 26, 1964, meeting to the evening and informed Brantley of his availability on May 27, 1964. The parties there- after met on May 26 and 27, 1964, for bargaining. At the May 27, 1964, bargaining meeting the parties discussed the next meeting. McLaughlin and Fleeger pointed out that Fleeger had commitments until June 18, 1964, and the parties agreed to meet on the morning of June 18 and 19, 1964.15 The parties thereafter met on June 18 and 19, 1964. On June 29, 1964, the parties discussed another bargaining meeting. McLaughlin told Brantley that he did not want to meet during the week of July 1, 1964. Ulti- mately Brantley and McLaughlin were speaking of a meeting on July 8, 1964. At this point one of the employee union committeemen pointed out that this date was during vacation time. The parties tentatively agreed to the July 8, 1964, meeting date. Later Brantley confirmed the meeting date and the parties met on July 8, 1964. u The witness' testimony (as well as the notes ) was very scanty on this point. Brantley testified to Fleeger's commitments on June 3 with reference to a proposed March 19, 1964, date and about Fleeger 's commitments before June 18, 1964. I am convinced that Brantley confused various times of meeting but believe his testimony with reference to commitments of Fleeger before June 18, 1964. 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The parties did not discuss a new meeting date on July 8, 1964, as the parties ended the meeting with the Respondent claiming an impasse had been reached. In considering the issue of whether the Respondent has refused to meet for reason- able periods of time at reasonable frequency for the purpose of collective bargaining, I have considered all the foregoing and all the evidence in the case. Although not explicitly argued by the General Counsel, Brantley's testimony projected an argu- ment to the effect that the Respondent was utilizing a sophisticated change of signals in the scheduling of meeting. Thus it might be argued that Respondent by initially suggesting night meetings caught Brantley off guard on January 21, 1964, when Respondent was willing to meet during the daytime on January 22, 1964. Similarly it might be argued that the suggestion of July 8, 1964, as a meeting date was intended to harass the use of employee committeemen as negotiators. In short, however, there is a lack of persuasive evidence to establish any contenion in this regard. It might be argued that the failure to meet after July 8, 1964, when there was no impasse in bargaining , although contended as such by the Respondent, reveals that the bargain- ing scheduling as a whole was pretextuously designed to frustrate the purpose of bar- gaining. From all of the evidence I am not convinced that such was the design of the Respondent and do not find that the issue was litigated on that basis. In any problem of scheduling bargaining meetings there would appear to be some problem of mutual accommodation . In the instant case the evidence appears undis- puted that Respondent had problems in selection of bargaining dates because of McLaughlin's legal commitments as an attorney and Fleeger's business commitments. Brantley, for the Union, also had problems with his own union business arrange- ments. I believe and credit Brantley's testimony, and his actions in the bargaining period are consistent, to the effect that he was willing to and could rearrange his schedule, if cognizant in time, so as to make himself available on most dates. The evidence in this case does not show that McLaughlin and the Respondent did not attempt to reasonably adjust their schedules to the extent possible . Thus after the Union on February 19, 1964, suggested that the Respondent be available for bargain- ing on other dates, the Respondent was available for bargaining on both January 21, 1964, and January 22, 1964, and when the Union could not meet during the day- time on January 22, 1964, the Respondent agreed and met at night on January 22, 1964. The Respondent, although contending about McLaughlin's legal commitments through the week of February 17, 1964, agreed to a February 13, 1964, meeting and later agreed to fit in (after the meetings of February 25 and 26, 1964) a meeting on the morning of February 27, 1964. Viewed as a whole, the evidence does not reveal that the Respondent was intentionally utilizing pretextuous excuses to avoid meeting with the Union, but appears to have been accommodating itself reasonably to the impediments involved. In my opinion the question narrows down to the point of whether Respondent, by virtue of the timing itself and length of the meetings has refused to meet at reasonable times and for reasonable frequency. While as a ques- tion of proof this issue is one that in proper cases can be established , the evidence in this case is not of sufficient weight to so establish. The delay between March 18, to May 14, 1964, as to the bargaining meeting appears equally the fault of the Union and the Respondent, although in each incident reasonably justified. Considering the evidence as a whole, I am persuaded that Respondent's impediments have contributed more to delay than has the Union's impediments. Both the Union and the Respond- ent possibly could have in sufficient advanced time swapped date availability to each other, could have been more diligent in swapping written proposals and possibly writ- ten summaries of position. One can not expect absolute efficiency from the parties involved in negotiations. As I have indicated, I am convinced that Respondent's impediments (McLaughlin's and Fleeger's other commitments) have constituted an impediment on the bargaining . Considering the evidence as a whole , however, I am convinced that: (1) the delay between December 17, 1963, to January 21, 1964, for the study of lengthy contract proposals was reasonable, that the meetings on 9 days during January, February, and March, 1964 for approximately 29 hours consti- tute a reasonable number of meetings for a reasonable duration in time , (2) the delay between March 18, 1964, to May 14, 1964, was equally the responsibility of the Union and the Respondent and does not reveal a refusal by the Respondent to meet at reasonable times and for reasonable duration , and (3 ) the meetings between May 17 and July 8, 1964 (six in number and for 231/2 to 251/2 hours) constitute a reason- able number of meetings and for a reasonable duration. In sum, the evidence does not establish that the Respondent has utilized the scheduling of meetings as a device to further a refusal to bargain design, nor does the evidence as a matter of law (based on the number of meetings and hours between December 17, 1963, to July 8, 1964) establish a violation of Section 8(a)(5). As indicated elsewhere, it has been found that the Respondent's total bargaining conduct was in bad faith and with no intent to enter into a final and binding agreement. The cessation of bargaining on the spurious EAST TEXAS STEEL CASTINGS COMPANY 1099 claim of impasse and the refusal thereafter to meet does establish that after July 8, 1964, the Respondent refused to meet with the Union in violation of Section 8(a) (5) and (1) 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 con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent has refused to bargain collectively in good faith with the Union as the exclusive representative of the employees in the appro- priate unit described herein. It will therefore be recommended that the Respondent bargain collectively, upon request, with the Union as the exclusive representative of the employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. East Texas Steel Castings Company, Inc., is an employer within the meaning of Section 2 (2) of the Act , and is engaged in commerce within the meaning of ' Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(6) and (7) of the Act 3. All production and maintenance employees at the Respondent's Longview, Texas, plant, including shipping and receiving employees, truckdrivers,' leadmen, working foremen, chemist and janitors, but exclusive of office clerical employees, professional and technical employees, guards, watchmen, and supervisors as defined in the Act, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. On December 17, 1963, and at all times material thereafter, United Steelwork- ers of America, AFL-CIO, was and now is the representative of a majority of the Respondent's employees in the appropriate unit described above for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By retusing on December 17, 1963, and at all times thereafter, to bargain col- lectively with the Union as the exclusive representative of all its employees in the above-described appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of section 8(a) (5) of the Act. 6. By the foregoing, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7 The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER 16 Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case , it is recommended that Respondent , East Texas Steel Casting Company, Inc., its officers, agents, successors, and assigns , shall: 1. Cease and desist from- (a) Refusing to bargain collectively with United Steelworkers of America, AFL- CIO, as the exclusive representative of all its employees in the appropriate unit with 181n the event that this Recommended Order be adopted by the Board, the word "Order" shall be deemed substituted for the words "Recommended Order." Additionally there shall be deemed substituted for the first paragraph of the Recommended Order the following paragraph. Upon the entire record In these cases , and pursuant to Section 10(c) of the Na- tional Labor Relations Act,- as amended, the National Labor Relations Board hereby orders that: 1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. The appropriate unit is All production and maintenance employees at the Respondent's Longview. Texas, plant, including shipping and receiving employ- ees, truckdrivers, leadmen, working foremen, chemist and janitors, but exclusive of office clerical employees, professional technical employees, guards, watchmen, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request bargain collectively with United Steelworkers of America, AFL-CIO, as the exclusive representative of the employees in the appropriate unit and embody any understanding reached in a signed contract. (b) Post at its plant in Longview, Texas, copies of the attached notice marked "Appendix" 17 Copies of said notice. to be furnished by the Regional Director for Region 16, shall, after being duly signed by an authorized representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (c) Notify the Regional Director for Region 16, in writing, within 20 days from the date of this Recommended Order, what steps the Respondent has taken to com- ply herewith.18 171n the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "a 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". Isla 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 a Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that- WE WILL NOT refuse to bargain collectively with United Steelworkers of America, AFL-CIO, as the exclusive representative of all our employees in the appropriate unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed in Section 7 of the Act. WE WILL bargain collectively upon request with the United Steelworkers of America, AFL-CIO as the exclusive bargaining representative of all our employ- ees in the appropriate unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an agreement is reached, embody such understanding in a signed contract. The appropriate unit is: All production and maintenance employees at the Respondent's Long- view, Texas. plant, including shipping and receiving employees, truckdrivers, leadmen, working foremen, chemist and janitors, but exclusive of office clerical employees, professional and technical employees, guards, watch- men, and supervisors as defined in the Act. EAST TEXAS STEEL CASTINGS COMPANY, INC., Employer. Dated------------------- By------------------------------------------- (Rei)resentative) (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. W.S.P. TRUCKING, INC. 1101 If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas, Telephone No. Edison 5-4211, Extension 2131. W.S.P. Trucking, Inc. and W.S.P. Inc. and Freight, Construction, General Drivers, Warehousemen & Helpers Union Local No. 287, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case No. 90-CA-3030. September 9,19015 DECISION AND ORDER On May 20, 1965, Trial Examiner James R. Hemingway issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in the unfair labor practices as alleged, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. 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 brief, and the entire record in this case, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner. 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 complaint herein be, and it hereby is, dismissed in its entirety. i We agree with the Trial Examiner's findings that in the circumstances of this case the Respondent did not violate Section 8(a)(5) of the Act by negotiating individually with the employees concerning the sale of the converted trucks . However, in sustaining his ultimate finding, we do not adopt any possible implication therein that individual bargaining was privileged because of the fact that the bargaining unit was unaffected by sale of the trucks. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on March 30, 1964, an amended charge filed on June 11, 1964, and a second amended charge filed on August 27, 1964, by Freight, Construction, General Drivers, Warehousemen & Helpers Union Local No. 287, International 154 NLRBB No. 92.