The Procter & Gamble Manufacturing Co.

334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exists concerning the representation of certain employees of the Employer within the meaning of Sections 9(c) (1) and 2(6) of the Act. The unit here requested is comprised of all the Employer 's employ- ees engaged in a coordinated mining operation in an employer- composed grouping of mines all contained in a common and clearly defined area of operations. As such, we find the requested unit appro- priate under accepted principles ,10 notwithstanding the possibility that a smaller unit limited to a single mine or a group of mines might in certain circumstances also be deemed appropriate." 4. We find the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(c) of the Act: All production and maintenance employees working in and around the several mines, haulageways , and tipple facilities located on the property owned and controlled by the Employer, near Rupert, in Greenbrier County, West Virginia, excluding operators, professional, technical , and office employees, guards, and supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] 12 10 Metropolitan Life Insurance Company, 156 NLRB 1408 11 Dixie Belle Mills, Inc., 139 NLRB 629, Sav-On Drugs, Inc., 138 NLRB 1032 12 An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 9 within 7 days after the date of this Decision and Direction of Election The Regional Director shall make the list available to all parties to the election. No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances . Failure to comply with this requirement shall be grounds for setting aside the election whenever proper ob- jections are filed. Excelsior Underwear Inc, 156 NLRB 1236. The Procter & Gamble Manufacturing Company and Independ- ent Oil & Chemical Workers, Inc ., Formerly Known as The Procter & Gamble Independent Union of Port Ivory , N.Y., Inc., and as The Procter & Gamble Independent Union of Port Ivory, N.Y. Cases 29-CA-30 (fommerlly 2-CA-9155) and 46 (formerly t-CA-9814). August 9, 1966 DECISION AND ORDER On October 20, 1965, Trial Examiner Ivar H. Peterson issued his Decision in the above-entitled proceeding, finding that Respondent 160 NLRB No. 36. PROCTER & GAMBLE MFG. CO. 335 had not engaged in the unfair labor practices alleged in the com- plaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs, and the Respondent filed a brief and answering brief supporting the Trial Examiner's Decision.' The National Labor Relations Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed.2 The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, with the additions and minor modification noted below. In essence, we agree with the Trial Examiner's reasoning and conclusions that Respondent did not violate Section 8(a) (1), (3), and (5) of the Act in the course of negotiations with the Charging Union for a new collective-bargaining agreement. Although, in adopting the Trial Examiner's findings, we rely essentially upon the views expressed in his Decision, further comment is necessary with respect to the allegation of overall bad faith. Thus, the Trial Exam- iner found that the totality of Respondent's conduct both at and away from the bargaining table failed to reflect a state of mind inconsistent with the principles of good-faith bargaining. We go further, for, in our view, the record is adequate both to show that there was no ambiguity in Respondent's conduct at the bargaining table and to refute any inference that its efforts to secure a new agreement were accompanied by aims in derogation of statutory bargaining obligations. 'The Charging Party's request for oral argument is hereby denied as the record , the ex- ceptions , and briefs adequately present the issues and positions of the parties. 2 The General Counsel excepts to certain evidentiary rulings of the Trial Examiner, con- tending that said rulings prejudiced his ability to prove that Respondent 's alleged overall course of conduct violated Section 8 ( a)(5) of the Act . The rulings involve : ( 1) the Trial Examiner's exclusion of certain exhibits offered at the hearing by the General Counsel; (2) the Trial Examiner 's revocation of Rider N of a subpena calling for the production of documents showing that labor costs, or the uncertainty thereof, were a factor considered in deciding whether new Procter & Gamble products would be placed at the Port Ivory Plant; and ( 3) the Trial Examiner's revocation of Rider 0 of a subpena calling for the production of intracompany communications bearing upon the Company's relationship with the Union and its opinion of union officers, as they relate to various issues and posi- tions taken by Respondent as of June 1963 in bargaining negotiations. The General Coun- sel urges that the excluded exhibits be admitted to evidence and that the case be remanded to the Trial Examiner for the purpose of reopening the record to permit a return under subpena-Riders N and 10. We disagree. In rejecting the General Counsel's contentions, we find that the exclusionary rulings of the Trial Examiner were not prejudicial , and that it would not effectuate the policies of the Act to remand this case for further proceedings. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thus, the basic background facts show that Respondent, a manu- facturer of soap, food, and related products, bargains at each of its 15 plants with different labor organizations. It has enjoyed a long history of bargaining, dating back to 1947, with the Charging Union as representative of employees at its Port Ivory facility. Since 1952, Respondent and the Union have executed identical bargaining agree- ments covering separate units of production and maintenance and office clerical employees at Port Ivory. Those preceding the instant negotiations were scheduled to expire on June 23, 1962. On April 10, 1962, Respondent and the Union opened negotiations for a new con- tract. However, the parties were unable to reach early agreement, as they had in past contract negotiations, but engaged in protracted bargaining covering some 28 months and 74 formal negotiating ses- sions before a new contract was executed on September 28, 1964. The length in negotiations was attributable to Respondent's insist- ence, and the Union's unyielding position with respect thereto, upon modification of prior agreements by incorporation of a broad man- agement rights clause 3 together with language limiting arbitration to grievances based upon the express terms of the contract ( referred to herein as the "management rights-limited arbitration" proposal). The facts bearing upon Respondent's position in this regard shows that earlier contracts, since 1954, contained identical grievance arbi- tration provisions, culminating in binding arbitration of a "grievance having to do with the interpretation or application of any provi- sions of this agreement." Prior to 1959, the Union invoked the arbi- tration clause on a single occasion. However, beginning in 1960, union requests for arbitration increased with the Union demanding arbitration of 25 or 30 unsettled grievances. The requests included grievances challenging the Company's action with respect to com- bination and elimination of job classifications and contracting out which were not based upon the express terms of the contract. Respondent refused to arbitrate such matters, asserting that it never agreed to arbitrate operating decisions or other disputes not founded upon the express terms of the contract. Consequently, the Union resorted to the courts to compel arbitration. In 1962, the conflict as to the meaning and scope of the subsisting grievance provisions reached its peak. The Union, on January 31, 1962, a few months prior 3 The Respondent 's management rights proposal in material part provided that "The Employer will continue exclusively to establish and change production schedules, to create new jobs and job classifications, to discontinue jobs and job classifications , to combine jobs and job classifications , to assign , reassign , and rearrange duties for jobs and job classifications, and to contract out work " PROCTER & GAMBLE MFG. CO. 337 to the commencement of the instant negotiations, wrote Respondent, distributing copies to employees, charging that Respondent's "actions during the past year have indicated that when you [the Company] signed the contract you must have had no intention of living up to what you promised," and that : .. . [the] Company was obliged in a sense of fair, honest, and good labor relations to specifically set forth in the contract ... reserved intentions not to arbitrate certain matters which are now set forth ... , such as (a) what work should be con- tracted out, (b) who should do exactly what work, and (c) what job classifications can be combined. Then the Union would not have bought a "pig in a poke." Respondent replied, by letter dated February 8, 1962, under signa- ture of Division Manager IIolditch, stating in material part that :4 Without laboring the point, I want to repeat that both the union and the company-in good faith-wrote and signed the contract [1960-1962]. We signed the contract intending that we would continue to arbitrate contractual matters just as we have done for 24 years. A look at the records will show that you-not us- are the ones who have changed. You have chosen to capitalize on a new meaning given to our contract language by the Court to change our arbitration practices rather than following the more usual procedure of talking out our changes at contract termina- tion time. * You know very well that my position on arbitration has not changed. The Supreme Court has indicated the form contract language might take if a Company wants to continue to keep operating decisions out of the hands of outsiders not experienced in our business. In line with the Supreme Court's suggestions on changing contract language, I think the forthcoming negotia- tions will present a normal opportunity to more clearly state our agreement on arbitrable issues in our next contract. Thereafter, in the course of formal bargaining sessions Respond- ent introduced its management rights-limited arbitration proposal, 4 See also the statement of Respondent's position as contained in a letter from Howard Morgens, president of the Company, which Division Manager Holditch read to the Union at the August 29, 1962, negotiation session and which is quoted in the Trial Examiner's Decision near the conclusion of section III, C, 3, thereof. 257-551-67-vol. 160-23 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which was both proffered in writing, and with full explication of the necessity for inclusion of such provision in the Port Ivory contracts. While Respondent adhered to its position throughout bargaining. its conduct at the table was marked not only by a patient willingness to consider and reconsider the Union's reasoning and arguments against said proposal, but also by efforts to cast its request in terms acceptable to the Union. Thus, it repeatedly suggested language which would cushion the economic impact of operating decisions by maintaining the rate of pay for a period of 2 years in the case of employees with 2 or more years continuous service, who are removed from jobs as a result of job elimination, combination, or contracting out. Additionally, Respondent agreed both to the establishment of a separate arbitration tribunal to resolve disputes as to arbitrability, and to a relaxation of the no-strike clause with respect to unsettled grievances ultimately determined to be nonarbitrable. Furthermore,, during negotiations, which though lengthy were unmarked by a strike, the parties bargained continuously and with no unreasonable hiatus disruptive of meaningful bargaining. Throughout bargaining, Respondent made various proposals, coun- terproposals, and significant concessions. It discussed the Union's formal proposals at length, and when necessary explained its posi- tion on disputed matters. As we are satisfied that ultimate execution of a contract was forestalled by the irreconcilable views of the par- ties on the management rights-limited arbitration issue, the Respond- ent's position with respect to that issue is the pivotal factor in eval- uating the overall bad-faith allegation herein. In this connection, it is well established that an employer's insist- ence upon management rights-limited arbitration provisions, which are mandatory subjects of collective bargaining, does not itself vio- late Section 8(a) (5).5 Yet, it is equally well settled that such pro- posals may be taken into account in assessing an employer's motiva- tion in negotiations.6 Thus, rigid adherence to proposals, which are predictably unacceptable to the employee representative, may be considered in proper circumstances as evidencing a predetermina- tion not to reach agreement, or a desire to produce a stalemate as a means of frustrating bargaining and undermining the statutory representative.? e N L R B. v. American National Insurance Co , 343 U S 395, where, at page 409, the Court stated : ". . we reject the Board 's holding that bargaining for the management functions clause proposed by Respondent was, per se, an unfair labor practice " 8 Rast Texas Steel Castings Company, Inc., 154 NLRB 1080 7 Pctzgerald Mills Corporation, 133 NLRB 877, 882, enfd 313 F 2d 260 ( CA. 2), cert denied 375 U.S. 834. - PROCTER & GAMBLE MFG. CO. 339 However, this plainly is not such a case. Respondent's deadlock- producing position was based on its interpretation of the prior agreements and the open invitation contained in the Union' s letter of January 31, 1962. Further, its demands did not reflect a radical departure from preexisting practice with respect to arbitration at Port Ivory. That Respondent's position was fairly maintained is also indicated by its related concessions cushioning the economic impact of job discontinuance, providing a tribunal for impartal determination of grievance arbitrability, and allowing for a relaxa- tion of the no-strike clause. In the circumstances, we are satisfied that Respondent's position on management rights-limited arbitra- tion was merely designed to secure favorable contract resolution of an issue that had been a course of uncertainty and conflict under the immediately preceding agreement, and fails to suggest an intention either to frustrate bargaining or to disparage or undermine the Union. In addition to our conclusion that Respondent's deadlock-producing demands were legitimately maintained, further comment is necessary with respect to the General Counsel's contention that the Respondent's practice of communicating with employees through various media, including letters, bulletins, and formal and informal meetings between supervisors and employees, evidenced an intention to bypass, dispar- age, and undermine the Union as statutory bargaining representa- tive. In this connection, subject to the isolated instances noted below,' 8 Witnesses for the General Counsel testified as to various oral discussions with super- visors concerning the contract negotiations . Generally , their testimony disclosed that the conversations consisted of an exchange of freely expressed views concerning positions taken by the Company and Union in published bulletins and letters , were informal, were often employee-initiated, and failed to reflect a contrived pattern of conduct on the part of Respondent. We agree with the General Counsel , however , that the Trial Examiner erred in finding that conversations between Supervisor Zagurek and employee Holderried , and Department Manager Davidson and employees Antczak and Holderried , occurred before the Section 10(b) cut-off date We further agree that said conversations violated Section 8(a)(1) Thus , Zagurek , in the course of what Holderried described as a "bull session," stated that if difficulties continued without a contract , employees could lose guaranteed employment, and Davidson warned Holderried and Antczak that, in the event of a strike, Port Ivory would close down. Also, in agreement with the General Counsel, we find a further 8(a) (1) violation in the action of Supervisor Pyle, during a coffee break, in answering both em- ployee Fama's charge that the Company was going backward in treatment of employees, and her assertion that the employees would fight for their rights, by stating that the plant would shut down. Nevertheless, considering the context in which the unlawful statements were made, particularly the tension created at the working level by the sharp deadlock over management rights-limited arbitration, the high incidence of discussions between supervisors and employees, the open debate conducted by both the Company and the Union, and the unprecedented delay in reaching agreement , it is our opinion that these isolated remarks, against a background free of any evidence of union animus, were not sufficiently serious to warrant a remedial order herein. 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we agree with the Trial Examiner's conclusion that the various state- ments made by Respondent were noncoercive, and merely presented (1) information on the status of negotiations; (2) explanations of positions previously advanced by the Company to the Union either at the bargaining table or in connection with the disposition of griev- ances; (3) refutation of inflammatory charges openly made by the Union; and (4) criticism of bargaining strategy and certain related tactics of the union leadership, which were the asserted reasons for the inability to reach agreement. As, a matter of settled law, Section 8 (a) (5) does not, on a per se basis, preclude an employer from communicating, in noncoercive terms, with employees during collective-bargaining negotiations. The fact that an employer chooses to inform employees of the status-of negotiations, or of proposals previously made to the Union, or of its version of a breakdown in negotiations will not alone establish a failure to bargain in good faith.' It is plain, however, that a non- coercive communication campaign may be utilized as an effective instrument for bypassing the Union and engaging in direct dealing with the employees. A notable example of such an approach was presented to the Board in the recent General Electric Company case.10 There, the employer engaged in an extensive campaign of com- munication to market its bargaining position to employees both before and during formal negotiation sessions, while its conduct at the bargaining table marked a clear refusal to engage the union in meaningful give and take bargaining with respect to its "fair and firm" nonnegotiable contract proposal. Thus, we were there confronted with a communication campaign, which, coupled with the employer's fixed position at the bargaining table, effectively excluded the union from meaningful bargaining, and represented a patent attempt to bypass and undermine the union as bargaining agent. The instant case is clearly distinguishable. In this regard, the record affirmatively establishes that Respondent entered negotiations with "a sincere desire to resolve differences and reach a common ground" 11 for agreement with the Union, as exclusive bargaining agent,12 and, in pursuit of that end, engaged in extensive discussion, and made vari- ous proposals, counterproposals, and concessions.13 Moreover, copies of all literature distributed to employees were sent to the Union, and " N L N B v Reed & Prince Manufacturing Company, 118 F 2d 874, 8S9 (C A. 1) 10 150 NLRB 192. 11 General Electric Co , supra, 196. 12 United Welding Company, 72 NLRB 954. 13 Cf. Flambeau Plastics Corporation, 151 NLRB 591. PROCTER & GAMBLE MFG. CO. 341 in referring to positions taken at the table, the material does not exceed matters previously advanced to the Union in a bargaining context.14 Although the "In Answer to Union Bulletins" circulars distributed between January and May 1963 were somewhat critical of the Union's bargaining strategy, we are satisfied, as was the Trial Examiner, that the statements made in the overall context-which included flagrant and inflammatory attacks by the Union upon the Company-were motivated solely by a desire to relate the Company's version of the breakdown in negotiations, were in no way designed to subvert employee choice of a bargaining representative, and hence were permissible here.15 Similarly, the management letters and other literature in which the Employer indicated a preference for agree- ment with the incumbent Union and opposed the effort of the union leadership to affiliate with the Teamsters Union merely represented an expression of disapproval of an away-from-the-table bargaining tactic of the union officials which assertedly was obstructing an accord, and, in the context, failed to reflect a state of mind or intent to violate the duty to bargain in good faith. In the circumstances, particularly the unambiguous conduct of the Employer at the bar- gaining table,"' we find, in agreement with the Trial Examiner, that the noncoercive communication campaign did not evidence bad faith. Accordingly, and in view of our general agreement with the Trial Examiner's reasoning with respect to other alleged conduct of Respondent, and his conclusions that the various actions of Respond- ent neither individually nor collectively evidence a refusal to bargain in good faith ;17 were nondiscriminatory; and, subject to the stated exception, did not interfere with, restrain, or coerce employees in the exercise of their Section 7 rights, we find that Respondent did not violate Section 8(a) (1), (3), and (5) in the course of the instant negotiations and shall dismiss the complaint in its entirety. [Tile Board dismissed the complaint.] 10 Celotem Corporation, 146 NLRB 48 ; cf. Generac Corp , 149 NLRB 980 ; Movie Star, Inc., 145 NLRB 319, 320. 15 United 'Welding Company, supra; Stark Ceramics, Inc., 155 NLRB 1258. 10 Baldwin County Electric Membership Corporation , 145 NLRB 1316 , 1317-18. 14 In rejecting the allegation that Respondent unlawfully refused to bargain concerning incorporation of guaranteed employment in any new collective -bargaining agreement, the Trial Examiner inadvertently found that the Union first demanded such inclusion at the negotiating session of December 5, 1963, when , in fact , such a demand was previously made at the bargaining meeting of August 22, 1903 However , as 'Respondent did not, at that time, foreclose future discussion concerning that issue , the Trial Examiner 's failure to refer to the earlier demand does not affect his reasoning and conclusions which we adopt herein 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TABLE OF CONTENTS OF TRIAL EXAMINER'S DECISION Statement of the Case________________________________________________ 342 Findings of Fact----------------------------------------------------- 343 1. The business of the Respondent________________________________ 343 II. The labor organization involved________________________________ 343 III. The alleged unfair labor practices_______________________ ________ 343 A. Introduction ---------------------------------------------- 343 B. Background of 1962-64 negotiations_________________________ 344 C. Contract modification proposals and bargaining thereon April- September 1962________________________________________ 346 1. Summary of proposals--------------------------------- 346 2. Positions on proposals other than management prerogatives and arbitration_____________________________________ 348 3. Positions on arbitration and management rights proposals-_- 349 D. Bargaining during October through December 1962------------- 357 E. Bargaining during 1963____________________________________ 359 F. Bargaining during 1964------------------------------------ 370 1. Prior to the Teamsters affiliation vote in June______________ 370 2. After defeat of Teamsters affiliation______________________ 372 G. Other events during the course of bargaining__________________ 375 1. Discipline of Union President Reed---------------------- 375 2. Suspension of the wage survey-February 1963 ------------ 377 3. Alleged refusal in August and September 1963 to furnish wage survey data------------------------------------- 380 a. The August request________________________________ 380 b. The September request_____________________________ 386 c. Conclusions regarding the information requests --------- 388 4. Limitation on meetings between union executive committee members-February 1963____________________________ 389 5. The "Dividend Day" boycott and the ban on distribution of union literature------------------------------------- 391 6. The operation of the "surplus pool" program-------------- 395 7. Administration of the time bonus plan-------------------- 397 H. Written and oral communications allegedly undermining and by- passing the Union and disparaging its leadership------------- 401 1. Letters and talks on employment security----------------- 402 2. Letters concerning the scope of arbitration_________________ 402 3. The bulletin barrage relating to negotiations--------------- 403 4. Conversations between supervisors and employees relating to bargaining issues ___________________________________ 412 5. Conclusions as to communications------------------------ 415 1. Analysis and concluding findings as to alleged overall bad-faith bargaining--------------------------------------------- 416 1. Alleged refusals to meet, requiring concessions and answers, and delaying negotiations pending internal union elections- - 416 2. Alleged refusals to bargain on specific proposals, and uni- lateral actions_______ _______________________________ 420 a. Specific proposals--------------------------------- 420 b. Unilateral acts--------- -------------------------- 423 3. Alleged undermining course of conduct, and the question of a bargaining impasse-------- ------------------------- 425 Conclusions of Law-------------------------------------------------- 426 Recommended Order------------------------------------------------- 426 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon charges and amended charges 1 filed in Case 29-CA-30 (formerly Case 2-CA-9155) and in Case 29-CA-46 (formerly Case 2-CA-9814) by Independent Oil & Chemical Workers, Inc. (formerly known as The Procter & Gamble Inde- pendent Union of Port Ivory, N.Y., Inc., and as The Procter & Gamble Independent I In former Case 2-CA-9155, the original charge was filed on March 4, 1963, and there- after amended on March 13 and 11 and August 21 and 27, 1963, The charge in former Case 2-CA-9814 was filed on February 7, 1964. PROCTER & GAMBLE MFG. CO. 343 Union of Port Ivory, N.Y.), herein called the Union, the General Counsel of the National Labor Relations Board, on April 14, 1964, issued a consolidated amended complaint (thereafter further amended on June 30, July 14, and December 16, 1964),2 against The Procter & Gamble Manufacturing Company, herein called the Respondent, P & G, or the Company, alleging that the Respondent in respects more fully set forth below had engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1), (3), and (5) and 2(6) and (7) of the National Labor Relations Act, as amended, herein called the Act. The Respondent filed an answer in which it denied the commission of any unfair labor practices and also alleged that the Union had maintained bargaining positions which made it impossible to reach agreement on bargaining issues. Pursuant to notice, a hearing was held before Trial Examiner Ivar H. Peterson at New York, New York, on 35 hearing dates beginning June 8, 1964, and ending October 21, 1964. The General Counsel, the Respondent, and the Union were repre- sented by counsel and participated in the hearing, at the conclusion of which oral argument was heard. Thereafter, comprehensive and helpful briefs were filed by counsel for all parties on or about February 8, 1965.3 Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, an Ohio corporation with its principal office in Cincinnati, Ohio, is engaged at various plants and places of business in a number of States in the manufacture and sale of soap, synthetic detergents, and food, household and related products. This proceeding is concerned with its Port Ivory, Staten Island, New York factory, the second largest of the Company's operations, where it manufactures and sells soaps, synthetic detergents, glycerine, food and related products. The Respondent admits, and the record establishes, that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is an unaffiliated, incorporated labor organization, its membership con- sisting of employees at the Company's Port Ivory plant. For some years prior to its incorporation in 1960 under the laws of the State of New York, it was known as The Procter & Gamble Independent Union of Port Ivory, N.Y. On August 1, 1960, after preliminary proceedings for approval of a certificate of incorporation, such a certificate was filed with the Department of State of the State of New York, adding the sign "Inc." to its name. Thereafter, in June 1961, its name was changed to "Independent Oil & Chemical Workers of Port Ivory, Inc.," and in June 1962 a certificate of change of name to the present title, Independent Oil & Chemical Workers, Inc., was filed with the New York State Department of State. I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction The fundamental issue presented in this case is whether the Respondent in the course of lengthy negotiations with the Union bargained in bad faith. Negotiations began on April 10, 1962, and continued through 74 meetings, culminating in a new contract signed on September 28, 1964, during a recess in the hearing. The bargain- ing sessions were transcribed verbatim and cover 9,462 pages. The first charge was filed on March 4, 1963, thus establishing September 4, 1962, as the Section 10(b) cutoff date for unfair labor practice findings. By that date, the parties had met in 40 sessions; the 1960-1962 contract, which had a terminal date of June 23, 1962, 3 An earlier complaint, based upon the charges In former Case 2-CA-9155, had Issued on February 4, 1964. On December 16, 1964, I granted the unopposed motion of the General Counsel to delete paragraph 22 of the complaint which alleged that the Respond- ent had refused to bargain with respect to subcontracting 3 Near the close of the hearing I Indicated to counsel that I might wish to schedule further argument after reviewing the evidence and the briefs. On May 10, 1965, I advised counsel for the parties that further argument would not be scheduled as I deemed it unnecessary in view of the able briefs submitted. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had expired, after having been extended twice, first to July 26 and then to August 3; a Federal conciliator had attended several of the meetings near the end of this period and had also met separately with the parties; and the union member- ship had voted on August 15 to authorize a strike. However, no strike occurred. From September through the balance of the year 1962, the parties met on eight occasions. During the year 1963, they met a total of 10 times, twice in January, once each in March and June, and twice each in August, September, and December. Thereafter, negotiations were resumed on February 18, 1964, 2 weeks after the original complaint was issued, and from then until the contract was signed on Sep- tember 28, the parties met a total of 16 times. Broadly stated, the General Counsel contends that the Respondent engaged in bad-faith bargaining because it entered negotiations with a fixed and predetermined position on its management rights and arbitration proposals, which it adhered to throughout the negotiations, engaged in conduct at and away from the bargaining table designed to bypass and undermine the Union, -and maintained positions in bargaining reflecting a calculated intent not to accord the Union proper recognition as the representative of the employees. The Company's position is that the basic disagreement over the scope of arbitration and management rights had developed into an impasse in the bargaining by August 15, 1962, prior to the 10(b) date, which continued until finally broken when agreement was reached on Septem- ber 28, 1964. The Respondent asserts that the months of bargaining which con- tinued after the September 4, 1962, cutoff date were characterized by the Com- pany's "patient and enduring efforts" to find a common ground for resolving the impasse, and that its proposals and conduct were not tainted with bad faith or otherwise proscribed by the Act. Before examining the particular events and actions occurring after September 4, 1962, which the complaint alleges either constitute independent unfair labor practices or are relevant in determining overall bad-faith bargaining, we will first set forth some pertinent background and then summarize the status of the negotiations as of the cutoff date. B. Background of 1962-64 negotiations On September 1, 1948, the Company and the Union entered into their first collective-bargaining agreement, following certification of the Union as the repre- sentative of the Port Ivory production and maintenance employees. In 1950, Local 327, International Chemical Workers Union, AFL, petitioned the Board for an election. The Union intervened and was successful in the ensuing election. On Jan- uary 22, 1951, it was again certified for a production and maintenance unit.4 In May 1952, the parties signed a separate contract covering the Port Ivory office cler- ical employees. Beginning in 1952 the parties negotiated simultaneously for the two units each of which I find to be an-appropriate unit within the meaning of Section 9(b) of the Act and signed separate but identical contracts for the two bargaining groups. The agreements last entered into before the instant negotiations were to expire on June 23, but, as stated above, were extended until August 3, 1962. As will hereafter appear, one of the principle differences that arose between the parties during the instant negotiations related to the scope of arbitration. The 1960 contracts provided that there would be four steps in the handling-of grievances. The first three involved progessive handling with the department manager or fore- man, the plant manager, and finally between the executive committee of the Union and the division manager or his representative. The fourth step provided that in the event "a grievance having to do with the interpretation or application of any pro- vision of this agreement is not settled in the previous steps, such a grievance may be submitted to a Board of Arbitration." 5 The arbitration clause further provided that the arbitrators "shall confine their consideration to the issue or issues submit- ted in writing by the Employer and the Union before the Board of Arbitration convenes, and shall neither add to nor subtract from the written provisions of this Agreement in reaching their decision." These provisions had been carried over from past agreements, first appearing in the 1954 contract. 6 The unit covered all production and maintenance employees at the Employer's Port Ivory, Staten Island, New York, plant, including factory clericals, laboratory employees, and fire inspectors, but excluding office clerical employees, confidential employees, profes- sional employees, nurses, guards, and all supervisors. 5 The arbitration board consisted of one arbitrator appointed by each of the parties and a third selected by these two PROCTER & GAMBLE MFG. CO. 345 Prior to 1959, when Robert Reed, the president of the Union during the times here material, was elected to that office, the Union had sought arbitration on only one occasion. Beginning with the 1960 contract, in marked contrast to the prior experience, the Union sought arbitration in some 25 or 30 cases, and in addition filed many more grievances. In general, the Union sought to question actions of the Company that it considered as affecting wages, the content of job duties, and the like, whereas the Company took the position that only matters dealing with an interpretation or application of a provision in the 1960 agreement could be arbi- trated. In view of this disagreement as to what was or was not arbitrable, the Union instituted several law suits to compel arbitration. In June 1961, the United States District Court for the Eastern District of New York ruled in favor of the Union's position with respect to seven grievances, directing that they be arbitrated. On appeal by the Company, the Court of Appeals for the Second Circuit on Jan- uary 31, 1962, upheld the lower court.6 On January 5, 1962, while the Company's appeal was pending in the Court of Appeals, Division Manager G. S. Holditch wrote a memorandum to his subordinate supervisors bringing them up to date on the outstanding arbitration cases and expressing his view on arbitration in general. In this letter he stated: The purpose of arbitration-as we agreed to it-was to let an arbitrator . . interpret the Contract if there were a question about something actually agreed to in a clause in the Contract. In other words, we agreed to arbitrate grievances if they had to do with the interpretation or application of the Contract. We have kept our agreement. In the last two years, we have arbitrated grievances pertaining to three separate clauses of our Contract. We are pro- ceeding, at present, to arbitrate grievances which pertain to still other clauses. Naturally, we would rather that the Union and ourselves solve these differ- ences in the plant, rather than go to an outsider. In my opinion, the present Union officers have a different view of arbitra- tion. I think they are trying to use arbitration to get that which they have not received at the bargaining table. For example, the Union officers want us to submit to arbitration the man- agement responsibilities of determining what work should be contracted out, who should do exactly what work, what job classifications can be combined, etc. I believe that the management must continue to have the final responsibility for making these operating-type decisions. We have made these decisions for many successful years. We have never agreed to restrictions on management in these areas. In a letter to employees dated January 12, 1962, Holditch again expressed his opposition to arbitration of "operating-type" decisions. Terming it unfortunate that "some of the union officials" had requested arbitration of a job-combination deci- sion, Holditch stated: "No matter how fine and able an arbitrator may be, he doesn't know our operations well enough to make operating decisions, nor does he have as much at stake in the Company as we do." He continued, "operating items such as the number of people required to do a job or the equipment or work pro- cedures which will be used" had not been put in the contract because they involved matters which "must be flexible, must be changed when necessary, and cannot be put in writing if we are to avoid damaging limitations and restrictions." Union President Reed on January 31, 1962, in a lengthy letter which was dis- tributed to employees, undertook to answer Division Manager Holditch's letters of January 5 and 12. He stated that Holditch's "actions during the past year have indi- cated that when you signed the contract you must have had no intention of living up to what you promised." Referring to the statement in Holditch's January 5 letter that the Company had not agreed to arbitrate "operating-type" decisions, Reed stated that the "Company was obliged in a sense of fair, honest and good labor relations to specifically set forth in the contract your reserved intentions not to arbitrate certain matters which you now set forth in your letter of January 5, 1962, such as (a) what work should be contracted out, (b) who should do exactly what work and (c) what job classifications can be combined. Then the Union would not have bought a'pig in a poke."' 6 Procter & Gamble Independent Union of Port Ivory, N Y v. The Procter & Gamble Manufacturing Company, 298 F.2d 644 and 647 (CA. 2). 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On February 8, following the decision of the Court of Appeals on January 31, Holditch replied to Reed and distributed a copy of his reply to the employees. Noting that Reed's letter of January 31 dealt primarily with arbitration, Holditch stated: - Without laboring the point, I want to repeat that both the union and the com- pany-in good faith-wrote and signed the contract. We signed the contract intending that we would continue to arbitrate contractual matters just as we have done for 24 years. A look at the records will show that you-not us- are the ones who have changed. You have chosen to capitalize on a new meaning given to our contract language by the Court to change our arbitration practices rather than following the more usual procedure of talking out our changes at contract termination time. Our company knows from experience that - it is essential to the best interest of all of us, to the very existence of our jobs in the long run, to keep operating decision making within the Company. You know very well that my position on arbitration has not changed. The Supreme Court has indicated the form contract language might take if a Com- pany wants to continue to keep operating decisions out of the hands of out- siders not experienced in our business. In line with the Supreme Court's sug- gestions on changing contract language, I think the forthcoming negotiations will present a normal opportunity to more clearly state our agreement on arbitrable issues- in our next contract. In a letter of February 15,' 1962, to employees, Holditch emphasized the impor- tance of research to the Company's success, and stated that with respect to "tech- nical, operating or business questions . - '. the best answers have come from our own P & -G career people," but noted that "we face the strong possibility of losing our . . . advantages in having leading research programs and leading experts" because of the,fact that it was likely that arbitrators "will start making operating decisions for us." Holditch continued: Until only two years ago, the court said our type of arbitration clause did not provide for arbitrating operating matters-decisions affecting products, • operating costs and production methods . Recently the courts are saying more and more that our type of arbitration clause, which has remained unchanged for years, now no longer puts such limits on arbitration ... . But, the courts are not saying it is wise for our Company to let an arbitrator make operating decisions. In fact, the Supreme Court even pointed out ways to change contracts to keep arbitrators from making operating decisions. Our legal protection against the wrong use of arbitrators is in doubt . Poorer decisions can result if arbitrators are brought in. Outsiders just can't be the experts our own people are and don't have the experience and background to use our research findings. All of us can lose from poor decisions. C. Contract modification proposals and bargaining thereon April-September 1962 1. Summary of proposals During the first several collective-bargaining meetings beginning April 10, 1962, the parties outlined in some detail their proposals for changes in the 1960 contract. The Union made the following proposals: (1) As to wages the Union requested that in making adjustments in wage rates of the several groups of factory workers into which the Company's employees were divided for wage purposes, the average of the base rates of the four highest com- panies in the wage survey for each group, rather than the five highest, be utilized? In addition, the Union sought to include watchmen in the male production group 7 The 1960 contract provided , as had prior agreements with some minor differences in language, that the Company "shall continue its policy of paying wages that match the wages paid by leading companies in the community for similar types of work determined by wage surveys." For purposes of making comparisons , the Company's employees were divided into seven main groups ; the companies in the survey, mutually agreed upon by the Union and the Company , were 14 in number tinder the 1960 contract , and the survey was taken every 6 months or as frequently as once every 3 months if so requested by the Union. PROCTER & GA 113LE MTFG. CO. 347 for wage survey purposes, requested that the job duties of specific groups or clas- sifications be reviewed to insure comparability, and that a specific company (Hoff- man) be added to the wage survey and that another company (Humble Oil) in the survey be considered as two separate companies. (2) On holidays, the Union requested the addition of Veterans Day and one- half day each on December 24 and 31, thus adding 2 days to the 9 holidays pro- vided in the 1960 contract. (3) On vacations, the Union sought improvements, particularly the addition of a fifth week to employees with 25 or more years of service, which added week could be carried over into the succeeding year. (4) As to health and insurance benefits, the Union proposed that the Company pay all premiums in Blue Cross-Blue Shield and major medical insurance. The 1960 contract provided that the full amount of Blue Cross-Blue Shield premiums and one-half of the major medical insurance premiums, in effect on the effective date of the agreement, would be paid by the Company; increases in premiums on both of these plans had occurred during the term of the contract and had been charge- able to the employees. Additionally, the Union proposed that the Company bear the full cost of group life insurance and the disability plan, neither of which was covered in the 1960 contract. (5) The Union proposed maintenance of rate for health for employees 55 years of age or with 25 years of service, who were removed from their jobs for health or physical reasons. (6) The Union sought sick leave pay of 6 days per year, at full base pay, with the right to carry over unused amounts for up to 3 years. (7) Finally, the Union proposed a 35-hour week. The Company made the following proposals: (1) Farm outs-The Company sought a change in the present practice of farm- ing out employees to work in other departments on a job classification basis to a departmental basis. (2) On overtime distribution the Company proposed that it be done on a weekly rather than a daily basis. (3) With respect to overtime lunches the Company proposed that for employees working overtime lunches be sent in to the plant if not available in the cafeteria, or in special circumstances the employee could eat at a contract restaurant. (4) Regarding maternity leave the Company proposed a 2-year continuous serv- ice requirement in order to qualify for such leave, and that a limit be fixed of one leave per eligible employee. (5) In connection with the grievance procedure, the Company proposed that at the first two steps the employee and/or his steward should present the grievance, thereby eliminating a member of the Union's executive committee at these steps. At the May 22 meeting, the Company proposed strict adherence to the language of article XVI, section 2, of the contract, which provided that a steward investi- gating a grievance "may be accompanied in such investigation by no more than one member of the Executive Committee at any one time." The effect of this pro- posal was to bar executive committee members from getting time off to meet with each other in investigating grievances. (6) With respect to arbitration the Company proposed, at the initial meeting, that: (a) only the Union, rather than either party, could request arbitration; (b) requests for arbitration be in writing; (c) such requests be made within 15 working days after completion of the third step; (d) the word "express" be added to the contract language so as to limit arbitration to grievances "having to do with the interpretation or application of any express provision of this agreement"; (e) the written request to arbitrate specify the grievance and the contract provision in- volved; and (f) some method, other than resort to court, be devised to determine whether a matter was arbitrable. (7) The Company proposed that leaves of absence without pay for union busi- ness be limited to 30 days per year for all employees, rather than 30 days per year for any employee. At the sixth negotiation meeting, on May 22, 1962, the Company proposed a management prerogatives clause which, together with its proposals on arbitration, particularly the limitation of arbitration to "express provisions" of the contract, became the crucial proposals in the protracted negotiations. The text of this man- agement rights clause was as follows: The Employer will continue exclusively to establish and change production schedules, to create new jobs and job classifications, to discontinue jobs and 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD job classifications, to combine jobs and job classifications, to assign, reassign, and re-arrange duties for jobs and job classifications, and to contract out work. However, if because of such Employer action an employee who has two years or more of continuous service with the Company is removed from his job and is transferred to an available job he will continue to receive at least the base rate he was receiving at the time he was removed from the job for all work performed on his new job. This base rate will be maintained for a period of up to two years. After two years, any remaining difference between the maintained rate and the proper base rate for the new job will be eliminated by reducing the maintained rate 2i/2¢/hour each four weeks. An employee whose rate is being maintained under this clause will not be eligible to receive wage survey increases. When negotiations began, the chief representative of the Company was Division Manager Holditch. Other main participants representing management were William G, Quinn, manager of the synthetic production plant, and Edward Pease, industrial relations manager. From time to time other plant managers, assistants to Pease, and subordinate plant officials attended some sessions. About November 30, 1962, Quinn took over from Holditch as chief negotiator, and replaced Holditch as divi- sion manager on March 1, 1963. The principal negotiator for the Union throughout the bargaining was its president, Robert Reed; Vice President Raymond Coady actively participated in negotiations until he resigned that office in March 1963. At times, particularly during meetings from July to September 1962 and in August and September 1963, the Union's attorney, Martin Loftus, took an active part. The other nine members of the Union's executive committee were present at most ses- sions, some of them taking a moderately active part in the discussions ; in addition, two different shop stewards attended each meeting. John Wilson, of the Federal Mediation and Conciliation Service , was present at 10 bargaining sessions between June 26 and September 26, 1962. As stated above, the 74 negotiation sessions were transcribed verbatim, and consist of nearly 10,000 pages of transcript. In addition, various communications concerning the negotiations were exchanged by the parties. 2. Positions on proposals other than management prerogatives and arbitration In the course of negotiations during May through August 1962, comprising a total of 40 meetings, the parties discussed at length their respective proposals and posi- tions, and each side modified some of its proposals as well as its initial position on those of the other. Thus on May 29 the Company withdrew its proposal relating to maternity leave. On June 6, it dropped its proposals on farm outs and overtime dis- tribution. On May 11 the Company partially agreed to the Union's proposals regard- ing Blue Cross-Blue Shield and major medical insurance, agreeing to pay 100 percent of the Blue Cross-Blue Shield premiums and 50 percent of the major med- ical premiums in effect as of the date of the new contract, but declined to agree to pay for any premium increases that might occur during the life of the new con- tract With respect to this item, on June 5 the Company further agreed to pay 50 percent of the premium increases in major medical during the life of the new contract, and on June 7 it agreed to pay the full cost of Blue Cross-Blue Shield premium increases during the contract term. At the June 14 meeting, the Union withdrew its proposals that the Company pay the full cost of the life insurance and disability plans and also agreed to the Company's proposals, as altered, on major medical and Blue Cross-Blue Shield, with the result that as to the so-called health package items (other than sick leave) the parties were then in tentative agreement. As to sick leave, also referred to as illness and accident pay, the Com- pany on June 12 offered to pay up to 3 days at one-half pay, thus partially meeting the Union's request. The Union, on June 13, withdrew its request for carryover of unused sick leave, and thereafter the Company, on July 20, increased its sick leave proposal to 5 days at half pay. At the August 3 meeting, the Union stated its accept- ance of the Company's counterproposal on sick leave. In response to the Union's proposal regarding maintenance of rate for health reasons, the Company on June 5 stated it would maintain base rates for employees removed from their jobs because of health impairment for those 60 years of age (instead of age 55 as proposed by the Union) until they became eligible for social security benefits at age 62. It refused the Union's request that similar treatment be afforded to physically impaired employees below the qualifying age but with 25 or more years of service. On June 13, the Company agreed to lower the qualifying age requirement to 55, but continued to refuse the Union's proposal that length of serv- ice be a separate qualifying factor. PROCTER & GAMBLE MFG. CO . 349 With respect to leaves of absence for union business, the Company on June 13 increased its initial offer of 30 days cumulatively for all employees to 45 days. On July 20, it proposed a limit of 60 days, with a maximum of 20 days for any individ- ual. The Company also modified its original proposal dealing with grievance han- dling. On July 24, the Company withdrew its proposal that at the second step of the grievance procedure only the employee and his steward could present grievances, agreeing to continue to allow another union representative to participate at this step. Later, on August 23, it agreed that a member of the Union's executive com- mittee could present the grievance at the first step if the steward were unavailable. It continued, however, to insist upon strict adherence to its interpretation of the 1960 contract provision, that not more than one member of the executive committee could accompany a steward in the investigation of grievances. The Union, during this period, modified its proposals for increased holidays and vacations. On June 6, the Union withdrew its request for half days off before Christ- mas and New Years and limited its proposal to adding Veterans Day as an addi- tional holiday. On June 22 the Union withdrew its proposal for a liberalized vaca- tion schedule for employees with less than 30 years of service and proposed that those with 30 years or more of service be granted 5 weeks of vacation with no limit on the right to carry over the fifth week. A union proposal, made on July 24, to adopt the average vacation plan of the top five companies in the wage survey was rejected, as was the Union's later modification the following day (July 25) for a fifth week to those with 35 years or more of service and with no carry over. At the May 23 meeting the Company refused the Union's request that wages be determined by the averages of the top four instead of the top five companies in the wage survey. Early in June the Company declined to treat the two components of Humble Oil as separate companies for wage survey purposes, and also refused to treat Piels' Brooklyn plant together with Piels' Staten Island plant (the latter being in the survey) as one survey company. On June 20 the Company agreed to consider watchmen in the male production group for wage survey purposes. 3. Positions on arbitration and management rights proposals At the outset of negotiations on April 10, 1962, G. S. Holditch, then the division manager of the Port Ivory plant and the chief negotiator for the Company, char- acterized the arbitration provision in the 1960 contract as having been "the seat of considerable misunderstanding and deterioration of our relationship during the present contract." He stated: We feel that through the courts, on the basis of law established after arbitration was agreed to, that you have gained arbitration in several items which we did not feel we had agreed to arbitrate. There are many aspects of managing the business which we do not cover in our contract and which ... we do not feel are proper subjects for arbitration. Explaining the reason for adding the word "express" so as to confine arbitration to grievances "having to do with the interpretation or application of any express pro- vision" of the contract, Holditch said that this change "is necessary so that matters not spelled out in the contract are no arbitrable." The initial reaction of Union President Reed was that the Company was attempting to "take away" rights pre- viously established to arbitrate matters not spelled out in the formal contract and "just arbitrate express provisions of this agreement." During the meeting on May 11, the Company elaborated its attitude on arbitration by reading into the negotiation record Holditch's management letter of January 5, previously referred to, in which he emphasized that in his view "management must continue to have the final respon- sibility for making these operating-type decisions," such as determining what work should be contracted out, who should do what work, and what job classifications can be combined, and that the Company had "never agreed to restrictions on man- agement in these areas" or that such operating matters could be arbitrated. At the next negotiating meeting, May 22, the Company introduced its manage- ment rights (also referred to as maintenance of rate) proposal, the text of which has been set forth above, and also later proposed that only issues jointly stipulated by the parties would be arbitrated. Vice President Coady of the Union remarked, after the joint stipulation proposal had been made, "I think between the joint stipulation, the express provisions and this bit on maintenance of rate [management rights], we can just write those three up and add on the holidays and we can throw the rest of the contract away." On June 14, the Company withdrew its "joint stipu- lation" proposal and proposed the addition of two additional steps after step 3 in 350 DECISIONS ,OF NATIONAL LABOR RELATIONS BOARD ,the grievance procedure ; first the reference of an unsettled grievance to a represent- ative of the company president, outside of Port Ivory; if that did not resolve the grievance, and the parties were not agreed that the matter was arbitrable, then a separate board of arbitration would decide whether the question was arbitrable. If the board found the question arbitrable under the contract , then a separate board of arbitration would determine the merits . In making this proposal, Holditch stated he had taken into account the Union's opposition to "joint stipulation ," and felt that his substitute proposal "makes clear what must be done to get to arbitration, what I will agree to arbitrate and what extra effort we will go to within the Company to solve our problems before we need to call on an outsider." During much of the next session (June 19), the Union sought to explore the effect of the words "express provision" in conjunction with the Company's arbitra- tion proposal, being particularly concerned with whether company actions in the areas of contracting out work, job combinations, and job eliminations could be taken to arbitration . The Company maintained that the propriety of its actions in these areas could not be arbitrated . One of the objections on the part of the Union to the Company's proposal to arbitrate only "express provisions" in the contract was that thereby many matters not specifically covered in the contract , on which the parties over the years had reached agreement, would be excluded from the coverage of the arbitration clause. These matters are variously referred to as "side agreements," "official interpretations," "procedural items," and agreements reached (frequently in connection with the disposition of grievances ) at monthly meetings between the parties . At the June 12 meeting, the Company stated it intended to follow all these agreements but it was not willing to arbitrate such matters. It stated, however, that it was willing to consider putting such matters in the contract. On August 10, the Company suggested that the parties review, at some point , all so- called "agreements" and practices outside the written contract to determine which were still applicable and whether the parties , were in accord in their meaning and current usefulness . The Union expressed the view that the appropriate time to review these matters would be after the signing of the contract. It was not, however, until months later, in negotiations beginning in March 1963 , that the parties undertook to review the various "side agreements" for possible inclusion in the contract. On June 22, the day before the contract was to expire, the parties agreed to extend it through July 26. Two bargaining sessions (June 26 and 28) were held prior to the annual shutdown during the first 2 weeks in July when the parties did not meet. During these two meetings the parties discussed at length the Company's arbitration and management rights proposals , but there was no alteration in the position of either side. For the Company, Holditch referred to the Supreme Court's decisions in the so-called Warrior & Gulf cases as having "given a new meaning, a different meaning to our contract " in that matters not clearly excluded from arbi- tration must be arbitrated; he argued that such had not been the Company's intent, and hence it had proposed limiting arbitration to express provisions of the contract. Holditch stated that the Company intended to honor any agreements outside the contract, but they would not be arbitrable under its proposal. The following exchange between Holditch and Reed reveals the positions of the parties: Mr. REED: . . . We have made many agreements that are binding, and they are going to remain binding. Our people have told us you are not going to take these rights away from them, and our people are wondering how far you expect to push them . They know you can operate under the present agreement. You have no hardship under it, outside of being told you were wrong a couple of times ... . * We say to you we are willing to spend a whole month here and decide what areas we can question you on, and then you come back and say that there is no area, that we can't question you on contracting out, or eliminating, or com- bining. You therefore say you must have the absolute right. Our people have said they are not going to give you this absolute right ... . Mr. HoLDITCI : As far as I'm concerned, I have not agreed to any limita- tions in these areas that you mentioned . I'm not willing-I can't properly operate the business with those limitations. * * * * * * Mr. REED: Now, if everything you say is right, the arbitrator can only make one decision, and that is in your favor. Therefore, you have nothing to fear. We have nothing to fear either, Mr. Holditch, because if he makes PROCTER & GAMBLE MFG. CO. 351 a decision in your favor, we have a decision we can take to our people. We can take it to our people. But up until that time, our people feel that under this contract there is a certain area where, on contracting out of work, we have to be heard; . . . All we say is that here we have a grievance that hasn't been settled. We should have the right to have a neutral man hear our case. If we're wrong, he'll tell us we're wrong. What's wrong with that, Mr. Holditch? Mr. HOLDITCH: Very frankly, . I think that the fact that someone out- side can make a decision in this vital area is certainly dead wrong . . Mr. REED. But you said under your interpretation that there is nothing that gives us the right to question you. Would not an arbitrator have to go by that? He has to stay within the confines of the contract. We can't tell him something that's not in here and have him use that as a basis. You know that and we know that. So if everything you say is so, what have you to fear? Mr. HOLDITCH: I don't think an outsider ought to be in this area . . . . I'm concerned about this situation. Mr. REED: Therefore, if you are so concerned about it, let's get into the area so you will definitely know then what area there is we can question you. Would you be willing to do that? Mr. HOLDITCH: I'm very willing to talk about this. Mr. REED: Is there an area? Let's get it for the record. Up until now you said there is no area, so we haven't talked about it. But we said we'll spend a month or more- Mr. HoLDITCH: I have said what I think is the proper area. Mr. REED: What is that? Mr. HoLDITCH: That is the area that these necessary actions-the area of impact on the employees of these actions. Many years ago we made one big step in our guaranteed employment. We have made another offer in this bar- gaining where we would guarantee or maintain rates of anyone who was dis- placed because of job combinations, because of contracting out of work, for a period of two years and exclude this maintained rate from the survey. Mr. REED: But you tied your management rights clause with that, Mr. Hol- ditch. Would you have that offer stand on its own two feet? Mr. HOLDITCH: The reason for this offer, the reason we're willing to do this, is to alleviate the problems that arise from our exercising these things which we consider vital to running the business. Mr. REED: In other words, like down in cake mix. Mr. HOLDITCH: I can't speak on that particular item. Mr. REED: That is a decision that was made by management. You say such a decision we can't question . . . Mr. HoLDITCH: Outside of the grievance procedure up to but not including arbitration, that's right. During the latter part of the June 28 bargaining meeting the Union's attorney, Loftus, summarized the basis of the Union's opposition to the arbitration proposal of the Company. He asked whether the Company, in the case of a grievance that was excluded from arbitration, advocated that the employees were free to strike, pointing out that the no-strike clause banned a work stoppage "pending final dispo- sition of any grievance," which he interpreted to mean disposition through arbitra- tion. He argued that the Company's proposal would exclude from arbitration "prac- tically eighty percent of the conditions of employment of the employees now involved," leaving employees no recourse but to strike over unresolved grievances in such areas. At the conclusion of the meeting, Loftus asked Holditch whether his position on arbitration was "static." Holditch replied: "As of right now, yes. At this time I have made a proposal. We have other bargaining sessions ahead. We'll be talking about it further." On this note, the parties recessed for the summer shut- down, to meet again on July 18. When the July 18 meeting convened, with Mediator Wilson in attendance, Union President Reed made an opening statement in which he said the Company "is one of the biggest antilabor outfits in the country," that because "we have been knock- ing their pants off in arbitration cases . . . they are attempting to take away our arbitration clause." He stated that the Company during the vacation period, had contracted out "a job that our people have done for the past twenty years," that the Union proposed "to grieve and attempt to get it to arbitration," but the Com- pany desired "the absolute right to contract out any job, even if it means elimi- nating some of our classifications." He asserted that "if they [the Company] have 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the absolute right, then we, our people, are operating under the worst contract in the United States," that the employees "will not give up this arbitration clause," and that the Company "insists on this take away bargaining because they are anti- labor." At this point Holditch adjourned the meeting , and he and the other company representatives left the room. During the negotiation sessions of July 19 through 25, both parties modified their positions on certain of the issues other than arbitration and management rights, as has been indicated in the preceding section . However, on these key issues there was no significant change of position . At the July 20 meeting, Reed referred to the fact that the Union was having a meeting the evening of July 25, at which the execu- tive committee would report on the Company's latest offer, and asked whether the Company's proposal concerning arbitration was its final offer . The following exchange then took place between Reed and Quinn: Mr. REED: I'm speaking of your proposal that had the word "express" in it. You, have started with express. Your position still is express provision. You haven't changed on that. Now I'm asking you: When we go to our people, is that your position, what you started with, that you have remained with and -will you continue with it? Mr. QUINN: It appears that we do have a very definite feeling concerning the word "express." We think that it clarifies an indefiniteness that is there now, and we think that because of this doubt that has been in people's minds, that we have an obligation to clarify what was in our mind when we consum- mated our last contract. Just where we'll wind up, only time will tell. But certainly we feel strongly on this point. Mr. REED: In other words, at this moment then you feel that that position you have, you see no reason for changing it. Mr. QUINN: That's correct. Absolutely, yes. Let there be no doubt about that. On July 26, Reed at the opening of the negotiating meeting stated that at the union meeting the previous evening the membership had voted unanimously to reject the Company's arbitration proposal. Reed suggested that the contract, due to expire at midnight that day, be extended through the month of August. Holditch agreed to extend-the contract a week, but would make no commitment regarding a further extension thereafter. Asked by Pease whether he thought the parties were "in such a fixed position ... that we are not going to be able to resolve our differences," Reed replied: Our people think that now that you know that they are 100 percent behind the objection to putting this restrictive wording "express provision" in arbitra- tion ... definitely our people feel we will come to an agreement. Reed stated that the key hurdle to a contract was the Company's "express provision" arbitration proposal and that if the parties "can get over this hurdle, and this is the big one, I'm sure we can get over the little ones." The following exchange then ensued: Mr. HOLDITCH: To clarify my own mind, our maintenance of rate proposal as submitted for job discontinuance is a key factor in our consideration of the contract. Mr. REED: How can that be a key factor, Mr. Holditch? Mr. HoLDITCH: Because it is. We feel that this recognizes some of the incon- venience that we, through our exercise of our management responsibilities, have imposed and will impose on the employees and this is an attempt to get to that problem. Mr. REED: I grant you what you say is a problem. It is a proposal you are giving us that you wish to maintain an employee's rate, and with the restrictions you have put into it, our people have rejected that . . . . I don't see where you are saying that is a key any more than we can say it's a key proposal of ours that we want a thirty-five hour work week. I think we ought to remember here that we're starting from our basic present contract . . . . We're starting from that foundation. When we come to you and ask for an additional holiday or a thirty-five work week, we bargain as much as we can. But if we cannot bargain with you that you agree with us it's going in, then when we sit down and sign without it, that's it .... On the same basis, you are asking for a change in our PROCTER & GAMBLE MFG. CO. 353 foundation that you wish to maintain the rate, if a man is removed from his job for various reasons. Our people have rejected that . . . . I don't see why that is the key. Mr. HOI.DITcx: Let me make my position very clear on this. Unless we reach agreement on the exclusive rights of management-and we have out- lined them-we would be unwilling to sign a contract. The parties then began a discussion of just what was encompassed by the language of the Company's management rights proposal, in the course of which Quinn for the Company expressed concern that "the Union maintains that everything that has ever been agreed upon at our monthly meetings, interpretations, this sort of thing, becomes in fact part and parcel of the contract." Loftus, the Union's attorney, sug- gested that "it might be worthwhile if one from management and one from the Union sat down and reviewed all of these various understandings" to determine which are operative and binding. Quinn said that he endorsed "the idea of having a meeting of the minds on what we have agreed to, which has been an obstacle to us in the past." This matter was not further pursued at this meeting, which con- cluded with the afternoon session being spent in off-the-record discussion, at the suggestion of Mediator Wilson. During the July 30 meeting, the parties further discussed the Company's manage- ment rights proposal, with particular emphasis on contracting out work, job com- binations, and job eliminations. The Company at this meeting agreed that all dis- ciplinary cases for cause could go to arbitration, reversing the position taken on July 20, when it had stated that only discipline resulting in termination could be arbitrated. Referring to the management rights clause, Coady for the Union and Quinn had the following colloquy: Mr. COADY: You have proposed this clause in the contract which has led to this what might be termed impasse, shall we say. Mr. QUINN: For practical purposes, we are at one, yes. Mr. COADY: Since you have heard us plead, cajole, pray, argue on these points for the last several months, and since you are now at this time in pos- session of all our feelings and all our facts on, let's say, the first item, con- tracting out of work, do you think that with all these in your mind you are prepared to relinquish one little bit the stand that there are no restrictions in this area as far as your are concerned? Mr. QUINN: I'm at a loss to determine in my own mind how this could be done and still preserve that which we have at the moment. This is my problem. I'm sure it's Mr. Holditch's problem, too. No progress was made at the next negotiating meeting on August 2. At the out- set, in answer to an inquiry from Reed, Holditch stated he was not willing to con- sider another extension of the contract. Thereafter, the parties again discussed their divergent views on arbitration. For the Union, Loftus said that if the Company had concluded that the arbitration provision it had submitted was "the only clause that you are going to submit, then it seems almost fruitless to continue bargaining at this table." Quinn replied "Perhaps so, Mr. Loftus." Loftus contended that acceptance of the clause would be tantamount to the Union surrendering "all of its right which it has as the representative of these employees." Quinn stated "we do not intend to destroy the effectiveness of the Union" and questioned the correctness of the statement that by agreeing to the clause the Union would be "giving up 90 percent of your right to arbitrate." During the August 3 meeting a number of relatively minor unresolved matters were first discussed. Near the end of the meeting Reed proposed that the parties consider signing a 1-year contract, instead of a 2-year agreement, with the old arbitration clause, and that if at the end of that period the Company "can show that what you feared did come about, that you couldn't operate, then it's our obligation to sit down and listen." Holditch demurred, saying that the Company's offers were based on a 2-year term. Reed also indicated that the Union was willing to consider settling or withdrawing some of the pending arbitration cases, in an effort to show that the Union was not bent on expanding the scope of arbitration. Returning to a discussion of contracting out work, and the right of the Union to question company action in this area, the following occurred: 257-551-67-vol. 16 0-2 4 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. REED: Mr. Quinn, what does the record show time and again on the Union's position on that? The Union's position right now is no different ... . We don't say that you must get the consent of the Union to contract out. You know that .... The only reason for giving the Union notification of what jobs [may be contracted out] was for the Union to study them and come up and question them if needed. They did not just give them notice of the job, let's say, as a courtesy. Mr. QUINN,: No, we-have recognized this questioning procedure. Mr. REED: That there is an,area where the Union has concern. Mr. QUINN: We have never, however, agreed -. to arbitration on these matters .... Where we hang up is where matters that' we do not consider to be a proper subject for arbitration in the first place are arbitrated, or we are being told by a court to arbitrate a matter which we did not consider to be proper, to be arbitrable. Then we do tenaciously fight for what we think is right originally. This is the way it stands. At the conclusion of the August 3 meeting, Holditch read the following prepared statement and gave a copy to the Union: Our original contract expired on June 23rd and the present extension expires today, August 3rd. This is notice that as of August 3, 1962, all terms and conditions of the contract and agreements with the Union are ended. The work relationship is one between the employer and the employees as to terms and conditions of employment. This relationship has no bearing on the contract and the expired contract has no bearing on 'the relationship. As of August 3, 1962, the Company specifically will immediately discontinue collection of dues by deductions, use of union bulletin boards and arbitration. Holditch, however, stated that the strike-vote notice then on the bulletin boards could remain until the date of the vote, August 15, but that as of that date "the use of these boards will no longer be afforded the Union." Under questioning by Loftus, Holditch stated that the Company recognized the Union as the representa- tive of the employees and planned to operate with the wages, hours, and working conditions then in existence, except that it was stopping dues collection, use of union bulletin boards and arbitration. The parties' agreed to meet for further negotiations on August 7, 9, and 10. - - There were six bargaining sessions in August following expiration of the contract and prior to the strike vote on August 15. Those of August 7 and 15 were relatively short and did not deal specifically with the bargaining issues. The other four meet- ings (August 9, 10, 13, and 14) were concerned almost exclusively with further discussion of the Company's arbitration and management rights proposals. At the August 9 meeting, Donald-,T. Lowry, the Company's manager of soap manufactur- ing, was present. Lowry spoke at some length about "that elusive, intangible quality of attitude" at Port Ivory, and indicated that the parties were in serious disagree- ment about the extent and nature of the "rights" each had under the 1960 contract. In discussing the effectiveness of a strike as a bargaining tool, Lowry stated that in the event of a strike the Company would be affected primarily in the area of costs, as it would endeavor to make up for lost production at Port Ivory by utilizing other plants and inventories built up by use of excess production capacity. Reed offered to sign a 1-year contract renewing the expired 1960 agreement, with no new benefits. The following day, August 10, the Company rejected this proposal. During the August 10 meeting Quinn for the Company suggested reviewing the various supplemental agreements, past practices and the like that had grown up over the years, with a view to determining which were binding but not arbitrable and which were of no current utility. Reed declined, pointing out that with no basic contract then in effect, any disagreement as to particular side agreements could not be resolved by arbitration, and stated that such a review should be undertaken after the basic contract had been signed. At the end of the August 10 meeting, following a discussion of subcontracting, Mediator Wilson suggested that the parties consider the following language as a pos- sible compromise of their divergent views in this area: The Company will continue to contract out. Whenever and wherever practical, from the standpoint of costs, scheduling of such work, efficiency of performance and related considerations, company employees will be used to perform the work. PROCTER & GAMBLE MPG. CO. 355 In making this suggestion, Mediator Wilson stated his impression to be "that above .all else, and most fundamentally, the problem that we have here is lack of confi- dence on both sides of the table as to the other fellow's actions under a contract in this area of contracting out of work." In his estimation, "there wouldn't be quite the resistance on the Company's part" to compromise in this area if "the Company had confidence in the Union's position" that the Union "would only utilize arbitra- tion in those rare instances where there was a gross example of unfairness or breach of contract or lack of sound employer-employee relations"; conversely, he did not think that "the Union would be arguing so vehemently for ... retention of their right, if they didn't feel that by giving it up, or conceding it, if they ever had it," the Company would, if its management rights language were agreed to, take action "to the disadvantage of the Union and the employees." The suggestion of Mediator Wilson did not result in any change of position in the following three meetings before the strike vote. The debate continued to revolve around the extent to which the Union under the 1960 contract had had the right to question management actions involving contracting out of work or combining and eliminating jobs, and to arbitrate differences in this area . As previously, spokesmen for the Union insisted that the Union must have the right to resort to arbitration, whereas those for management reiterated the view that company decisions in this area should not be subject to arbitration. On August 16, the day after the membership of the Union voted, by a margin of six to five, to authorize the executive committee to call a strike, the parties met very briefly. Union President Reed read a prepared statement, as follows: Mr. Holditch, I know you are aware of the results of the strike vote and realize the significance of it. We have had thirty-seven sessions of discussions so far. The Company has not changed from its original position on the primary issues of contracting out work and matters dealing with job classification changes and work assignment. Port Ivory employees have shown their vital concern. We feel it is now necessary for you, in the interest of both parties, to re-evaluate these issues. Holditch replied that his purpose "is and remains to arrive at a mutually bene- ficial contract through bargaining." At the suggestion of Mediator Wilson, who wished to confer separately with management, the parties recessed to August 23. When the parties met on August 23, with Mediator Wilson and Loftus, the Union's attorney, present, Holditch opened by stating that management had "spent virtually all of our time since our last meeting assessing our position" in the light of the strike authorization vote. He summarized the Company's position as follows: We start back with an economic consideration. I think you all recognize that the future growth and health of any-plant . . . must depend on the introduction of new products and new-product production facilities . . . . It's no surprise and everyone recognizes that Port Ivory has not received , during the last few years, the new production facilities that other plants have. When we compete, we have some built-in disadvantages. First, we have an old plant.'There are layout inefficiencies. Our construction costs in the New York area are higher . All of these go together to put us behind the eight-ball. Now, if we are going to continue to grow, . . . we have to actually work more effectively, work smarter than other areas to overcome these handicaps . This has been the overriding reason for my requests . . . On the other hand, I also recognize that there are very important considerations to be made with regard to people, their security and their peace of mind. Basically, that is the problem which is before us: How can we achieve competitive, economical operation and still provide the security that the people feel is necessary. We feel that considerable concern should be given to the problems that may be created by changing conditions and we feel that the impact on people should be minimized. On the other hand, we feel very strongly that our operations and the deci- sions concerning them must remain exclusively in the hands of the management group. We're not willing for anyone to have veto power over these actions unless we have agreed specifically through bargaining to such limitation. That I believe, is a statement of our position as clearly as I can do it. There are economic motivations, long-range economic motivations, which are over- riding. We want to provide for the security and peace of mind of the people 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and we ha,,e attempted to do this through our plans and proposals . . . . We do not see any other solution to the situation than the proposals which we have made in these two vital areas. Thereafter the parties again repeated their positions relating to arbitration of management actions in the area of contracting out work, job combination and job elimination; the Company stating that it was unwilling to subject its decision on these matters to "outside resolution," while the Union maintained that without the right to arbitrate such decisions the contract would be of no value to the Union. Loftus asked Holditch whether the Company would be agreeable, with respect to the matters excluded from arbitration, that "the Union be permitted to reserve the right to strike in case it disagreed with you as to your action in those particular areas." Holditch replied that "the guarantee of employment, coupled with the main- tenance of rate proposal which would last for two years, . . . should be adequate protection" for the Union, and that in consequence "we are not agreeable to change the no-strike provision as far as these items are concerned." Loftus and Holditch then had the following exchange: Mr. LOFTUS: Now, you referred to guaranteed employment which, under your plan is discretionary. Am I correct in assuming that now you are making guaranteed employment a definite part of the contract? Mr. HOLDITCH: No, I'm not. This is not the case. Mr. LOFTUS: Is that still something discretionary that you can end at any time? Mr. HOLDITCH: I cannot end it. Mr. LOFTUS: But the Company can. I am wondering, under those circum- stances, since you are saying you cannot end it . . . and realizing that the deci- sions insofar as the Company is concerned are made by men who have not sat at this table and realizing that the employees have now taken a strike vote and the tensions that are being created, might it not be better if we held this bar- gaining, at least for one session, in Cincinnati with those people who make those decisions, for the purpose of trying to fully explain our position face to face? Now, I don't propose that the Company should pay for the Union people to go there. I think the Union should bear that expense. But certainly anything should be done that may be of help in avoiding a conflict that is almost imminent. Mr. HOLDITCH: Frankly, I don't see any useful purpose to be accomplished by this . . . . Based on my thinking right at the moment, I would say that I could not agree to this . . . . I don't want to hold out any hope here, but I certainly will pass this on. At the 40th bargaining session on August 29, the parties reviewed the Company's offers on certain of the Union's requests. There was no change in position. Near the end of the meeting Holditch read a letter from Howard Morgens, president of the Company, to the members of the Company's administrative committee, the top policy body of the Company, commenting upon the Port Ivory dispute. President Morgens' letter noted that the membership of the Union had voted "approximately six to five in favor of granting" strike authority to the executive committee, and stated that if a strike occurred the Company would act "in accordance with this guiding principle," namely, that it "has no recourse but to invest in any action necessary to maintain the Company's freedom to make its own operating decisions." The letter appraised the issues as follows: Wages, fringe benefits and other matters affecting the economic interest of Port Ivory employees have not been key issues in the negotiations. Employment security is also not a key issue. Under P & G's guarantee of regular employ- ment, Port Ivory production employees with two or more years of continuous service are, of course, assured steady work. The point at issue results primarily from the fact that the Union and Procter & Gamble have been unable to agree on a contract which clearly defines what matters are subject to outside arbitration . . . . During the past two years, certain Supreme Court decisions involving companies other than our own had affected the changing meaning of the arbitration clause in our own Port Ivory contract. The meaning was changed so it is now contrary to what was intended at the time we signed the last contract and contrary to the way the contract PROCTER & GAMBLE MFG. CO. 357 had been historically interpreted . . . In all matters involving outsiders, what the Company wants is an arbitration agreement that means what we always thought it meant , not the old words with new meaning . This kind of agreement would not change the way that we have worked with our people, nor would it lessen the security of our people who have guaranteed employment. We firmly believe that this is in the best interests of all of our employees and of the busi- ness itself. The Union's position appears, on the surface, to be only that it wishes to keep the wording of the present arbitration clause. Actually, its position goes a great deal deeper than that. The present Union position would, in fact, result in the extension of arbitration procedures to operating decisions which have historically not been arbitrated under Port Ivory contracts. Such decisions so directly affect the success or failure of our business that we strongly feel they must be made within the Company in the future as they have been made in the past. Should we agree to the demand of the Union's executive committee, Procter & Gamble would be agreeing, in effect, to place a major responsibility for running the Port Ivory plant in the hands of a constantly changing group of arbitrators, outsiders who could not know our business and do not have to live on a day-to-day basis with the effects of their decisions. We have not been willing to agree to such a demand because we feel that the responsibility for making operating decisions is and must be clearly in the hands of Procter & Gamble if we are to retain the flexibility required to meet the changing con- sumer needs, competitive pressures, and thus to assure continued regular employment for our people. Following the reading of this letter , union representatives renewed their request for a meeting with higher officials of the Company, contending that Morgens ' letter revealed that the Union's arguments and position were not understood by those who determined the policy of the Company. During the month of September the parties met for contract negotiations on only three occasions (September 6, 12, and 26). These sessions were not productive of any change in position. On September 6, Reed -opened by stating that the Union was willing to continue the expired contract, and that the Company's failure to accept that offer made clear that the Company was engaged in "take-away bargain- ing." The Company continued to insist that the contract would have to be changed in the two key areas of arbitration and management rights relative to contracting out work and job combinations and eliminations . The entire morning session of September 12 was taken up with a discussion of the overtime lunch problem, with no solution being reached. During the afternoon they resumed discussing arbitration and the management rights proposal, particularly in regard to contracting out work. At the beginning of the September 26 meeting, also attended by Mediator Wilson and Attorney Loftus for the Union,e Reed asked for an answer on the Union's pro- posal for a meeting in Cincinnati with higher officials of the Company. Holditch said he had passed the proposal along, but had received no reply, affirmative or negative. The Union expressed its disappointment, Loftus stating that he thought that "the persons making the actual decisions for the Company in these particular areas are persons in Cincinnati ," and that the Union felt it would be beneficial if "those people responsible for this position which has created this impasse in col- lective bargaining" met with representatives of the Union. He added that he felt "we are accomplishing very little, if anything, here," and that such a meeting should be had so that, even if not successful, "the Union and the people will be satisfied that everything has been done that should be done prior to any friction." D. Bargaining during October through December 1962 In the last 3 months of the year 1962, the parties met on only five occasions for general contract negotiations (October 4, November 1, 13, and 29, and Decem- ber 18). Additionally, they held two formal sessions (November 15 and 29) dealing with contracting out problems, endeavoring to arrive at an agreed procedure for notifying the Union of jobs to be contracted out and discussing particular jobs that had been or were to be contracted out. 8 This was the last session attended by Mediator Wilson Loftus next participated in the four meetings in August and September 1963 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the brief October-4 meeting the parties discussed the procedure involved in placing watchmen in the male production group for wage survey purposes. When they adjourned, no date was fixed. for the next bargaining session. When they resumed on November 1, there was further consideration of the Union's proposal that the top four, rather than the top five, companies in the wage survey be used in making wage adjustments for the Company's employees. In arguing for this change, Reed stated that the trend of companies in the wage survey group was increasingly toward improvements in fringe benefits rather than wage rates, with the result that P & G employees were benefiting less and less in terms of increased wages from the operation of the wage survey . During the course of his presentation, Reed stated that since the Company "agreed" wages were "a small part of the overall cost," the Company should be willing to consider the Union's proposal as a means of improv- ing the position of its employees. Holditch stated he did not "agree that wages are an insignificant portion of our cost," and the following exchange then occurred: Mr. REED: I think I read you figures one time to show where you could double the wages and the cost would only go up ten per cent. Mr. HOLDITCx: I don't know where you got those figures, but I certainly- Mr. REED: From a member of Cincinnati. I told you that, so you said you wouldn't disagree with them. then. Mr. HOLDITCH: I won't agree with them either. Mr. REED: Would you say then-we're talking of wage increases. Will you say that to increase wages would be a large percentage of your over-all cost? Mr. HOLDITCH: I would say it would be significant. Mr. REED: What do you mean by significant? What percentage right now is wages compared to your overall cost? Mr. HOLDITCH: We never split our wages in any expense statement or any other, type of costing information. We know that the cost of manufacture is a significant portion of our cost, running. between a third and a half, depending on the -brands. Mr. REED: How about on Tides? How about on Tide 24's? Mr. QUINN: My thought in this area is the absolute percentage of cost of wages, as far as finished brand box cost is concerned has no place here at negotiations . They're an item of cost. The relative per cent of total cost is of no particular interest to this group here. Mr. REED: It has a definite place. Mr. QUINN: I fail to see it .... We can afford it. Mr. REED: All right. You say you won't give it, because we say it's a small percentage and you say it's a large percentage. We want to know how large a percentage. You say you won't give us that information. I say you will give it. Mr. QUINN: I see no compelling reason to give it to you, no. Mr. REED: Our statement will hold true then, that wages are a small per- centage of our over-all cost. If you say otherwise , then we want the proof. Mr. QUINN: I don't say it is incumbent on us. It is a significant cost. It is one for which we are responsible, management is responsible . It is not an issue here. We are not pleading inability to pay. I see no particular point pursuing the point, what absolute percentage it is. The parties then went into a rather vague discussion of profits and the relative responsibilities of management and the Union in this area, during which union rep- resentatives complained of the unending "rat race" involved in the Port Ivory plant competing against other P & G plants as well as other companies. Later in the November 1 meeting the Union withdrew its request for a 35-hour week, but substituted a proposal that employees with 15 or more years of service be granted a 3-month paid leave of absence once each 5 years. The Company rejected this proposal at the November 13 meeting. During the latter part of the November 1 meeting, and also at the November 13 session, the parties discussed the Company's policies relating to contracting out work, the Union contending that the Company was not complying with the requirements of the Board's Town & Country decision .9 The parties agreed to meet on November 14 (actually they met on the 15th) to discuss a list of jobs, previously supplied the Union, pursuant to past practice, that the Company proposed to have performed by outside contractors. No progress was made at the November 29 meeting, most of the time being con- sumed by a discussion of the Union's allegation that Division Manager Holditch had told Mediator Wilson that Reed, president of the Union and the presidents of 9 136 NLRB 1022. PROCTER & GAMBLE MFG. CO. 359 the unions at two other plants of the Company, had allegedly agreed that none would sign a contract unless the other two concurred. Quinn, the Company's chief negotiator in the absence of Holditch, after talking by telephone to Holditch and Wilson, in effect stated that in a conversation between Holditch and Wilson no statement had been made by Holditch that an agreement of the nature alleged by the Union existed. The parties recessed without a date fixed for a further negotiat- ing session. On or about November 30, 1962, Reed and Coady were notified at a meeting with Holditch, Quinn, and Pease, that effective at once Quinn would replace Hol- ditch as the Company's chief negotiator and as of March 1 Quinn would become the division manager-, with Holditch moving to another position in the Cincinnati headquarters of the Company. The first meeting of the parties after Quinn succeeded Holditch as chief nego- tiator took place on December 18. Quinn announced that early in January 1963 Piels Brewery on Staten Island, one of the companies in the wage survey, would cease business. He stated that if Piels "were dropped out of the survey today," and the averages recalculated, several groups of employees would be adversely affected in that the wage rates of these groups would be considerably above the average of the remaining top five wage survey companies. This announcement led to a discus- sion of substituting a new survey company for Piels, whether wages of employees of the Company could move downward as a result of the wage survey system, and of Quinn's further statement that agreeing upon a substitute company for Piels would be considered in conjunction with the overall bargaining rather than as sepa- rate, unrelated item. Quinn stated that the question of substituting a new company in the survey for Piels was an- integral part of their negotiations; when a member of the Union's executive committee accused the Company of thereby putting eco- nomic pressure upon the Union to achieve agreement on the Company's contract proposals, Quinn replied: "If this be economic pressure, then make the most of it." E. Bargaining during 1963 i• During the year 1963 the parties met a total of 10 times in bargaining sessions, and in addition engaged in an exchange of correspondence on issues involved in the negotiations. Also during this period there were other developments having a bearing on the course of the negotiations. At the two meetings on January 10 and 11, the parties reviewed all outstanding proposals of each, but devoted most of their time to debate on the Company's management rights and arbitration proposals. In connection with the former, Quinn emphasized that under-the language of that proposal the Company would have the exclusive and absolute right to subcontract and to combine and eliminate jobs, with- out restriction. In an extended discussion of the relationship of this proposal and the right of a displaced employee to return to a particular job if it were reestab- lished within a year (a provision in expired contract which under the proposals would be carried forward into the new contract), Quinn drew a distinction between the assignment of duties to a job and the placement of an employee in a job. He contended that the assignment or distribution of duties would come within the exclusive right of management, and in the case of a reestablished job recall rights of a displaced employee would exist only if the job were reconstituted with duties unchanged. He made clear that the management rights clause would override any interpretations or side agreements that were in conflict with it. Thereupon union representatives sought to ascertain which .existing "official interpretations" were deemed by Quinn to be in conflict with his proposal, and suggested that the parties go through them to ascertain which would be binding. Quinn agreed that before the contract was signed it would be necessary to review such interpretations, and stated he would consider the matter. In the discussion of the Company's arbitration proposal, Quinn stated that the Company's position was that as to all pending arbitrations under the expired con- tract, the decisions made therein would not be regarded as carried forward and applicable in the interpretation of the new contract, even though the specific clause involved in a pending arbitration appeared in the new contract in exactly the same language as in the expired agreement. At the January 11 session Quinn suggested that the wording of the dues deduc- tion authorization cards be changed so as to harmonize the language on the authori- zation card with the pertinent language of the contract, and particularly to permit employees to revoke dues deduction authorizations "upon election by the employee." At Reed's request, Quinn agreed to give the Union in writing the revision he sought. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Other proposals previously made by the Company, such as grievance investigation procedure , leaves of absence for union business , and overtime lunch, were discussed with no change in position. In connection with leaves of absence, the Company pro- duced figures showing that during 1962 members of the executive committee had been on leave for union business a total of 238 days,'° with President Reed and Vice President Coady having been on leave 87/ and 51% days, respectively. Quinn contended , in reply to Reed's statement that the time off represented a cost to the Union, that hardship and expense to the Company, due to rearrangement of crew shifts and the like, was involved. Thereafter the parties reviewed the Union's outstanding proposals, and the Company declined to concede any of them. During a discussion of wage survey, and the effect of Piels-dropping out, Reed requested "all the information pertaining to the companies in our survey, pertaining to the rates of all the employees they have." He stated the Union needed this to determine the position it should take on substitution of a company for Piels, to ascertain "the position of the companies , just, where we stand in our different groups what groups are going to be affected by Piels, and what groups aren't." Reed stated that the information would be treated as confidential. Quinn replied that he thought there was no problem in furnishing the information. At the end of the January 11 meeting, Reed asked when the parties would next meet for negotiations . Quinn made the following reply: The point is this: we have talked here for some five thousand pages, and we have tried here the last two days to get some positions clear . I had hoped that there had been clarification of the Company 's position. I feel that the under- standing the Company . . . has of the Union's proposal is quite clear. I would suggest, and I feel it proper, that unless there is some modification or change of position anticipated by either side of the table , that for some period, unless you have something unique, or some change to talk about, we not set a date here. The parties then adjourned without fixing a date for the resumption of negotiations. Between January 11 and March 28, when the parties next met in a contract nego- tiation session , they exchanged correspondence relating to some of the outstanding issues. Pursuant to Reed's statement at the January 11 negotiations session , that the Union desired certain wage survey information in order to assess the effect of Piels' dropping out of the survey, Henry Nerlino, a member of the Union 's executive com- mittee and assigned by the Union to gather wage survey information, met on Janu- ary 18 with Robert Ashton, assistant to Industrial Relations Manager Pease. Ner- lino, as he testified, asked Ashton, on Reed's instruction, for information showing what the effect of removing Piels from the survey would have on the averages of the top five in the survey. Nerlino and Ashton prepared a written listing of the names of the top six companies in the wage survey, by job category, and also show- ing the difference (where Piels was one of the top five) between the average Piels rate for that,job category and the average of the sixth company. This written infor- mation was given to Nerlino, who showed it to Reed a day or two later. According to Nerlino, Reed said the information was inadequate, that he wanted Nerlino to see Ashton again and obtain a copy of the wage rate figures for all companies in the wage survey. Nerlino saw Ashton on January 22 and asked for the more detailed information. Ashton offered to show Nerlino the figures but said he could not take a copy out of the office because the information had been obtained on a confidential basis. Nerlino testified that he told Ashton the Union intended to keep the data confidential and, in reply to Ashton's comment that the Union had other ways and means of obtaining the information, said that if Ashton was referring to outside unions as a source the Union could not obtain the average needed from an outside union. Ashton said he would check on the matter. On January 24, when Nerlmo saw Ashton for the third time, Ashton began reading the provision in the expired contract dealing with wage survey; Nerlino interrupted and said he wanted a "yes or no answer" from Ashton as to whether the information would be given. Ashton replied that he feared that if the Union were given information, the com- panies in the survey might not want to participate in the survey. Nerlino then asked if the companies in the survey agreed that the Company could release the informa- tion, whether Ashton then would supply it. Ashton replied that this would require bargaining between the Union and the Company, and Nerlino closed the meeting 10 This figure did not include time spent in bargaining sessions or investigating or proc- essing grievances, which time was paid for by the Company PROCTER & GAMBLE MFG. CO. 361 by stating he would have the secretary of the Union write the Company a letter stating exactly what the Union wanted. So far as appears , no such letter was sent by the Union to the Company. On January 25, Quinn wrote to Reed , stating that on January 22 "Mr. Nerlino notified us that the averages which we furnished earlier - are not satisfactory to the Union" and that Nerlino further "stated that Mr. Reed wanted copies of all detailed wage data for the stated purpose of allowing the Union to check the data through the unions at the surveyed companies ." 11 Quinn's letter to Reed continued: The Union knows that the Company gathers wage survey information with a commitment to the surveyed companies to hold the data strictly confidential. You know that this confidential element is inseparable from the other features of our present survey. The Union's request has introduced a new and different bargaining approach on the wage survey. Your choice to take this position after several months of bargaining has to be considered as a new complication in our bargaining for a new Contract . We certainly have to reconsider our own offer and position in connection with the wage survey. We presume that the Union .has in mind some other methods of wage sur- vey. If so, we will bargain as appropriate about any new proposal . I suggest that you write any such ideas to me so that I may consider what arrangements for bargaining should be made. In a further letter to Reed , dated February 1, Quinn wrote as follows: Recently the Union inquired about wage adjustments made by a Company in the wage survey. However, the Union had indicated in negotiations and through its request that it is in disagreement with the wage survey. I wrote to you about a recent request, and the letter was handed to the Union on Janu- ary 25th but the Union has not replied. Under the circumstances it would not be proper for us to put in effect any wage survey increases until the whole matter of wage survey is resolved through proper collective bargaining. We are perfectly willing to bargain with the Union about any point con- nected with wage survey, including substitution of a Company for one which has gone out of business , and adjustments of current wages through wage sur- vey. Because another date for a contract negotiation meeting had not been established it is suggested that the Union should write to me any proposals which it has about wage survey. From your letter I can determine what further bargaining arrangements should be considered in order on this subject. The acting secretary of the Union , E. McCullough , replied to both of the above letters on February 6 . He stated that "Mr. Nerlino emphatically denies making" the statement attributed to him in Quinn 's letter of January 25, and added that the Union had "always been keenly conscious of the confidential nature " of the infor- mation sought and had "never felt the need to check it with other unions." He said that the Union was "deeply distressed to find both of your letters to consist of assumptions, evasions and improbable conclusions which are not substantiated by the official record," and renewed the request for a meeting made at the January 11 negotiation session, adding that Quinn's presentation at the January 11 meeting "has had an effect on our thinking and we feel that continued meeting would serve a constructive purpose." In a five-page letter dated February 11, Quinn wrote to Reed stating he had reviewed the transcripts of the January 10 and 11 negotiation sessions and was "now in a position to answer the Union's request for another negotiation meeting, as mentioned in your letter of February 6, 1963 ." Quinn continued , in part, as follows: At this time, as negotiations stand , our major points of difference are so large in importance and in number and are so sharply drawn that no good purpose would seem to be served by establishing another meeting date. We have been bargaining since April 10 when requests for change in the contract were exchanged . The contract expired on August 3, 1962, after two extensions beyond June 23, 1962, to allow additional time to reach agreement on a new contract. We` have now filled 6,242 pages in official negotiation n Nerlino denied that he advised Ashton that the purpose was to check this data with other unions. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD transcripts. The Union has had the benefit of the participation of the entire Executive Committee at Company expense in order to facilitate negotiations. Still, after all that, we have not reduced the major disagreements with which we started negotiations . There are still some economic requests to which the Company does not agree, and these are certainly differences; however, it is doubtful that those points can be considered major differences because the Company has already offered a package of substantial economic benefits in response to Union requests. The major disagreements, therefore, must be con- sidered as those in the areas of management's operation of the Port Ivory plant. As you know, our experience with the Union during the two years of the last contract led to the only possible conclusion that there had developed in Union thinking a complete misunderstanding or disagreement on the meaning and scope of the contract. In the 22 years prior to the June 23, 1960, contract the Union and the Company had negotiated and administered many collective bargaining contracts. During that long period of time there were only two arbitration hearings and one court action. However, in severe contrast, since the signing of the June 23, 1960, contract the Union has instituted seven court actions; there have been six arbitration hearings, two more or now set for hearing, three others were withdrawn after the Union sent them through the courts, and eleven additional disputes are pending disposition. It is our firm conviction that the Union siezed upon the Warrior & Gulf decision in 1960 to launch this program of litigation and that the program has built an insur- mountable barrier to our efforts to find the common ground for agreement. Many of the disputes involve the major differences over which the Union now holds itself from agreeing on a new contract even after prolonged negotiations. Under the circumstances, I am willing to arrange a negotiation meeting with the Union when convincing evidence is presented to me that to do so would be worthwhile in reaching agreement on our major points of difference. For my part, if I can see any reason for further negotiations I shall notify you in the same detail. Until then we must consider our bargaining closed. Bargaining does not require endless and fruitless argument Thereafter, Quinn outlined in considerable detail all the items still in disagreement and summarized the positions of the parties with respect to each. On February 12, the parties met in a regular monthly meeting to consider matters other than their contract negotiations, principally third step grievances. On this occasion the Union made a request that one of three breweries be substituted for Piels in the wage survey. Quinn refused to discuss the matter, stating that the monthly meeting was not the proper place to do so. In a letter to the Union, dated February 20, Quinn repeated that the February 12 meeting "was not for the pur- pose of negotiating a new contract and that the meeting was not the proper place to discuss such a request," and that he had referred the union representatives to his February 11 letter "which sets forth the status of negotiations and the suggested way of bringing negotiation requests properly to my attention." At a meeting convened by Quinn on February 25, also attended by Personnel Manager Pease , Union President Reed and Acting Secretary McCullough were given a letter of that date dealing with the status of the Union and grievance investigation procedure. Referring to the fact that in connection with a pending suit brought against the Company by the Union in Federal court, the Company had served upon the Union interrogatories concerning the Union's incorporation and name change, Quinn's letter continued: Until complete responses are received and analyzed , including those to any subsequent questions which may arise in this regard, the Company will not be in a position to process any request of a "union" nature, except upon a pro- visional basis. These requests will be considered as they arise. We will consider on the provisional basis any requests pertaining to releases for: (a) Investigation of grievances (b) Meetings with the Division Manager or other Managers and/or their representatives, and (c) Leaves of absence for attending to "union" business. The granting of any request shall be with the specific reservation that the Com- pany waives none of its rights which exist under the present or applicable cir- cumstances . The rule continues to be effective that Union Officers, representa- PROCTER & GAMBLE MFG. CO. 363 tives and employees shall refrain from any participation in any union activity during their working hours except as authorized. As indicated above any such authorization shall be acted upon provisionally. It is clear from this that if it should be determined that the request was improper, or the activity was not for the purpose stated or exceeded the purpose stated, the rule would be violated by the officer, representative or employee. For example, prohibited activity would be the collection of union dues, or initiation fees during working hours or other "union" activities unrelated to the above listed reasons. There is also no provision for releasing an executive committeeman during working hours to investigate a grievance with another executive committeeman. Any violation of the rule continues to subject the violator to disciplinary action up to and including termination. On March 1 the Union replied to Quinn's letter of February 11. Reed stated that the Union did not believe that the meetings of January 10 and It "indicated an impasse but rather a point of departure for continued negotiations," requested that negotiations be jesumed, and stated that the Union was "prepared to drastically modify our proposals." Quinn answered on March 11. He stated his position to be that "no good purpose would be served by meeting again until the Union or the Company presents convincing evidence that our major differences could be resolved"; noting that the Union stated it was "prepared to modify its proposals drastically," Quinn suggested that Reed "should set forth in writing what specific modifications of position the Union has in mind so that it can be determined if the purpose of reaching final agreement can be properly served by meeting at this time to negoti- ate." Referring to the interrogatories filed in the court action concerning the Union's status, Quinn stated that until "responses are made and studied it can not be deter- mined what issues may arise." In three letters of March 18, the Union (a) objected strongly to "provisional" recognition, stating it was entitled to an answer whether the Company did recognize the Union as the representative of the employees or had withdrawn recognition; (b) disagreed with Quinn's position in his February 20 letter, that a regular monthly meeting was not the proper place to consider substitution of a company in the wage survey and requesting a special meeting for that purpose on March 22; and (c) offered at the next negotiation meeting to withdraw all the Union's pending requests for improvements in conditions of employment. Quinn replied on March 20, propos- ing a meeting on March 28, "subject to the qualifications mentioned in this letter," i.e., the questions that had been raised regarding the Union's status. The Union agreed to meet. At the opening of the meeting on March 28, Quinn stated the parties were meet- ing pursuant to his March 20 letter in which the Company "gave provisional recog- nition" to the Union. He handed the representatives of the Union a four-page document entitled "Company Proposal," which outlined all the Company's proposals for changes in the expired 1960 contract, with certain modifications and clarifica- tions made since the last bargaining session in January. Quinn then announced a 45-minute recess so that the union representatives could consider the Company's proposal. When the parties resumed their meetings, the following exchange occurred: Mr. QUINN: Gentlemen, shall we resume. I assume you have had a chance to consider these proposals. Do you reject them or accept them? Mr. REED: You say you presume we have had a chance to consider these proposals? Mr. QUINN: In the last forty-five minutes, yes. Mr. REED: As you know, there are new proposals in here. Mr. QUINN: The wage survey item. Reed then reviewed all the proposals the Union was withdrawing and asked "whether this will be enough for us to sign a contract." Quinn replied that in mak- ing its proposal that day the Company had taken into account the announced inten- tion of the Union to withdraw its remaining requests. The parties then briefly discussed some of the modified proposals made by the Company. Thereafter, Reed proceeded to read into the record the full text of some 19 "official interpretations" which had been agreed to in the past years, asking after reading each whether the Company agreed to the item. In reading these matters, Reed stated he did so in view of the statement in Quinn's letter of February 11 that the words "agreements hereinafter contained" in the contract, over which there had been disagreement in the past, "shall mean only the agreements in the written pro- visions of the new contracts, and nothing more." As to all but one of the "official 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interpretations," Quinn replied that he would consider the request that they be incorporated into the new contract. As to one interpretation, dealing with retro- activity of wage survey increases, Quinn rejected it since the March 28 proposal of the Company provided that the wage rate schedule as of the date of signing the contract would be the same minimum and maximum rates then being paid and would not be lowered during the life of the contract because of any wage survey, and that the present survey companies (excluding Piels) would be surveyed but without retroactive recalculations. After reading the "official interpretations" into the record, Reed stated it was his intent to do the same with "agreements" reached in monthly meetings , beginning with a 1951 item. Quinn stated he saw no reason for I reading these into the tran- script of the meeting and suggested that they be submitted to the Company in writ- ing for consideration. When Reed persisted in going through the process of reading "agreements" reached in monthly meetings into the record, rather than submitting in writing the items he claimed should be included in the contract, Quinn adjourned the meeting. On April 3 Reed wrote to Quinn asking when he would be available for a meet- ing and stating "we have substantial concessions to make on your proposals," with- out indicating what the concessions were. Quinn replied on April 9, stating the Company's position on the 19 "official interpretations" read into the record by Reed on March 28. Quinn accepted two of them as worded, accepted four others with some change in language, accepted portions of seven, and rejected six. Quinn asked that Reed "submit to me for study as soon as possible the substantial concessions which you wish to make on my proposals for a new Agreement," and then after each side had studied the proposals of the other "we can meet in the near future to negotiate further as you suggest. You may tell me when you are ready and I shall do likewise." Also on April 9, Reed wrote to Quinn, submitted an attached list of some 65 "specific agreements, reported in the minutes of Regular Monthly Meetings between Union and Management , which we wished (sic) included in the new contract." He further stated the Union was "compiling a list of other agreements between the Company and the Union which we will forward to you for bargaining as soon as completed." On April 12 Reed wrote to Quinn and identified four such additional "agreements" and stated: You now have lists submitted to you by this Union (a) of the agreements con- tained in minutes of our monthly meetings and (b ) this list of signed agree- ments between company and union. Quinn answered on April 17, acknowledging receipt of the approximately 69 "agreements" that the Union wanted "to be included in a new contract ," and again stating "we are proceeding with the provisions previously made -known to you because of questions which have been raised" about the name and incorporation of the Union. He urged that the Union "come forth with all such `agreements' which you wish us to consider," and stated that the Company would proceed as rapidly as possible to study those submitted , although "so many requests, some of them based on statements made as long ago as 1951, do not lend themselves to cursory exam- ination." Quinn concluded his letter as follows: Regarding ,your decision to withhold from my study the "substantial conces- sions" which you referred to I presume that "such concessions" would still lead into areas of disagreement . That is, even if I were to agree to include your requested "agreements" we would still be far from reaching ,agreement on a new contract. If my presumption is incorrect you should notify me at once. Reed replied on April 30, contending , with reference to the "agreements " outside the contract, that the Company, until the letter of April 17, had not taken "the position that the Company would not recognize such agreements." He continued: The Union has offered to sign the 1960-1962 contract. The only road block is the Company's insistence on its unilateral right to contract out work of the bargaining unit, change jobs, change classifications or discontinue classifications without the Union having the right to grieve. In other words, the road block really is the Company's insistence on the Union surrendering its obligation to bargain for the employees. I am sure that a change of the Company's intract- PROCTER & GAMBLE MFG. CO. 365 able position to the recognition of the Union's right to collective bargaining will mean the end of all kinds of objections now raised by you as a means of clouding the issue. Your presumption, therefore, is correct only if the Company continues to insist that the collective bargaining contract, when signed, will free the Procter & Gamble Manufacturing Company from the obligations of genuine collective bargaining. On May 8, Quinn wrote to Reed asking that he advise whether, as to collective bargaining, "is there any plan, arrangement or commitment by the Union, its officers and agents" to "any other Union . . . Council or affiliated organization," and if so, to furnish details. Quinn, in explanation, noted that the Company had bargained with the Union "upon the basis of exclusive recognition of the Union for all employees in the bargaining unit at the Port Ivory division only," and that the Union "had held itself out as authorized to negotiate and execute a collective bar- gaining Agreement, if such a contract is agreed, without any qualifications whatso- ever." He stated that the union at the Dallas plant had in a recent negotiation meeting asked to postpone bargaining for about 30 days "because it was acting in `cooperation with the council' or with `other plants."' Reed replied on May 9, stating in part: "We appreciate your interest in ` . any plan, arrangement or commitment by the Union, its officers or agents . . . ' since we did not have it in writing until now that you desire to be a partner in any such plans, arrangements or commitments." Reed declined to answer the questions asked by Quinn, and characterized Quinn's letter as "further evidence of the Company's bargaining in bad faith." Quinn wrote on May 13 that Reed's reply "is completely unresponsive" and asked for an answer. Reed answered on May 17, stating that his response of May 9 "conveys the intelligence we intended it to convey," and added: "Perhaps now, if you are sincerely interested in reaching agreement, we can make more sensible and fruitful arrangements," and suggested "meetings on specific items mutually agreed on in advance." iz On May 28 Quinn wrote to Reed at length regarding "the approximately 70 requests which you sent us with.your letters of April 9 and 12, 1963." Quinn then continued: Even though I understand from your letter of April 30, that you consider us to be in major disagreement, regardless of the Company's position with respect to your approximately 70 requests for contract additions, I am submitting in this letter the results of our examination of your requests. In making this reply the Company in no way waives its position that the proposal of the contract addi- tions by the union is untimely. Examination of your requests made it quite apparent I was right in insisting that you identify what you have been referring to as "agreements" throughout our bargaining. It is now confirmed that most of what you have been referring vaguely to as "agreements" are not agreements in the sense of collective bar- gaining at all . Now at this late date you have submitted a 12-year accumulation of items which you labeled as "agreements" but which are actually discussions, explanations, notices, grievance settlements, repetitions [repetitious] references to the contract, statements of opposing positions, and obsolete conclusions. I understand that you wish to make "substantial concessions" respecting the Company's proposals, but that you are not willing to submit them to me for examination before a negotiation meeting. As soon as you feel that you are ready for a meeting, will you let me know. I shall try to be available at any reasonable time. Quinn then proceeded to comment seriatim for some 10 pages on the items sub- mitted by the Union for inclusion in the contract, rejecting most of them as unnec- essary, obsolete, not constituting an "agreement," or in conflict with the Company's management rights proposal. He accepted some in rewritten form. Reed replied on June 5, contending that the Union's proposals were timely and argued that the Company procrastinated in its "obligation to outline all the inter- pretations, or `agreements' considered to be in effect . . . until the Union was forced 12 The use of the words "perhaps now" may well have had reference to the fact that the Union's internal election of officers had been held on May 15, resulting in the con- tinuation in office of Reed and others 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to list as many of these interpretations as it could locate." Reed stated he was "available at the plant at your convenience for the purpose of renewing negotiations with the hope that perhaps at. this late date bargaining in good faith might appear." In a reply dated June 11, Quinn declined "to comment upon your baseless character- ization of the Company's bargaining posture" and stated he was "willing to meet to try to complete the bargaining even though you have indicated that irrespective of your planned concessions and my recent ones, there would still remain major dis- agreement between us." He suggested a meeting on June 20 or 21, or some other date Reed might suggest. Reed agreed to meet on June 20. At the beginning of June 20 bargaining session Quinn stated that the Company was meeting on the provisional recognition basis previously set forth, and later said that he could sign a contract only on a provisional basis. He asked whether the Union accepted the Company's proposals as outlined at the March 28 meeting and as thereafter modified in subsequent letters to the Union. Reed for the Union offered to sign the 1960 contract, but Quinn rejected this, saying that he failed "to see how, in good faith, you can even propose that when you know the tremendous argu- ments we have had over that old contract." With respect to the so-called side agreements, which Quinn had dealt with in some detail in his letters of April 9 and May 28, Reed suggested that a subcom- mittee of two from each side be designated to review these. Quinn first agreed to consider this proposal, on the understanding that the joint committee would only make recommendations, but later in the meeting he rejected it. Reed also renewed a proposal previously made by the Union, that it would agree to the Company's arbitration clause if the Company deleted the word "express." Also, Reed suggested, as on a prior occasion, that in the opening sentence of the article on grievance procedure the word "agrees" be substituted for the word "desires," so that the sentence would read: "The Employer agrees that unfairness to its employees shall not exist." Quinn rejected both proposals. Reed then proposed that the Union would accept the Company's arbitration proposal limited to "express provisions" if with respect to those areas excluded from arbitration the contract would allow the Union to strike. Quinn agreed to consider this, which he termed "an interesting proposal." During the discussion of the Company's outstanding proposals, which occupied the bulk of this meeting as the Union had withdrawn its requests at the March 28 meeting, the Union changed its position in the following respects: 1. It accepted the proposal that the Company's decision as to whether a job would be evaluated under the existing job evaluation plan would not be arbitrable. 2. As to overtime distribution, it accepted the Company's proposal, which gave the Company greater flexibility in determining the number of overtime hours an employee would work. With regard to other of the Company's proposals, the Union indicated that it might be disposed to accept some of them after further consideration. After the parties had completed their review of outstanding differences, Quinn stated that they were "still so far apart on this maintenance of rate thing arising out of the exclusive right of the Company to make management decisions, that this is an impediment to coming to an agreement, which is difficult to overcome, if not impossible to overcome." Reed then suggested that a three-member mediation board be constituted, which would review the areas of disagreement and make binding determinations. Quinn rejected this proposal, saying that "so long as we stand so far apart on our exclusive right to do certain things, I will not expose us to outside determination on these points." He also rejected the proposed creation of an advi- sory mediation board. As to future meetings, Quinn stated he saw "no point at this juncture" in setting a date, but agreed to get in touch with the Union on further bargaining after the first of July. After the June 20 meeting, the parties did not meet in a negotiation session until August 22. So far as the record shows, there were no requests by either side during this 2-month interval that negotiations be resumed.13 At the outset of the August 22 '- On August 14 the Board by order granted the Union's motion to amend the certifica- tion of the Union in Case 2-RC-2385, substituting its present corporate name for "Procter & Gamble Independent Union of Port Ivory, N Y." The Union had filed the motion, on March 18, 1953 , after the Company had in the Federal court case raised questions about the identity of the Union Hearing on the motion was held on June 26, 1963. PROCTER & GAMBLE MFG. CO. 367 meeting, Reed drew attention to the amended certification and Quinn agreed that the Company recognized the Union, and not on a provisional basis. The Union first renewed its earlier proposal for a joint committee to review the various side agreements, a proposal previously rejected by the Company. Initially, Quinn again rejected this suggestion; however, at the next session on August 28 he agreed that some provision should be made for reviewing them, but indicated this should occur as they came closer to overall agreement. In a discussion of the Company's management rights proposal, the parties repeated again their points of view, with no alteration of basic position. Reed and Quinn had the following exchange on this subject: Mr. REED: Up until now our membership has rejected this exclusive right. They have rejected it. That is where we stand. And, once again, this new com- mittee is concerned. We ask you once again: Is there any area where you have stated you have the exclusive right-is there any area whatsoever we can go to arbitration on? Mr., QUINN: I see no point in going over this because I have very frankly tried to explain it. I think the language stands on its own feet. It is just about as lucid as it can be made . Mr. REED: Then you haven't changed your position on maintenance of rate? Mr. QUINN: No. Mr. REED: That is the situation as it stands. On maintenance of rate you have rejected our counter proposal that we are asking you to, in these areas, try, on these items of contracting out and discounting jobs-to try to give us an area that we could question you in arbitration. That has been our counter proposal to you. Mr. QUINN: I have rejected that entirely. To do so would be to dilute the meaning of this thing, and I simply see no purpose to be served by diluting that language. Thereafter Loftus, the Union's attorney, again brought up the suggestion that the word "desires" be changed to "agrees" so the first sentence in the article on griev- ance procedure would state that the Company "agrees that unfairness to its employees shall not exist." Quinn stated that he saw nothing to be gained by modi- fying the sentence as Loftus proposed. When Quinn expressed the view that arbi- trating "unfairness" would expose the business to decisions by persons unfamiliar with the "entire conditions of employment" at Port Ivory, Loftus proposed selec- tion of a permanent arbitrator and said "it might be very well . that we picked out the president of the Company and said that he would be the arbitrator in a par- ticular question of whether or not you were unfair." Reed stated Loftus "is giving the Union's position" and additionally proposed that the Union would be willing to have as an arbitrator for the duration of the contract an attorney who had been retained by the Company in arbitration hearings. Quinn said he wished to con- sider the proposal in its several aspects. At both the August 22 meeting and the next session on August 28, the parties considered in some detail their differences on wage survey, the form of the dues deduction card, grievance investigation procedure and overtime lunches. When they recessed on August 28 it was with the understanding that they would meet on Sep- tember 5 and that the Company would then state its position on the several matters at issue and particularly the proposal that it "agree" not to be unfair and that issues of "unfairness" be arbitrable. At the September 5 meeting, which was the 56th bargaining session, the Com- pany presented the Union with a written statement of all its proposals for a new contract. On the principal matters in contention the Company made the following proposals. 1. On wages and the wage survey, it proposed to substitute one of the three breweries suggested earlier by the Union as a replacement for Piels, but on a fac- tored basis to take into account the difference between a 35-hour week and Proc- ter & Gamble's 40-hour week, and that the minimum and maximum wage rates presently being paid would not be subject to being lowered as a result of wage survey calculations until the wage survey community average for any wage group had once exceeded the Procter & Gamble average for that group. 2. While adhering to its management rights clause, the Company proposed (a) to substitute "agrees" for ''desires" in the first sentence of the grievance procedure clause, so that it would provide that the Company "agrees that unfairness to its 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees shall not exist," but that any grievance regarding fairness or unfairness would not be subject to arbitration, and (b) to allow such "unfairness" issues to be resolved by a member of management outside of Port Ivory mutually selected by the Union and the Company or, failing agreement, by a representative appointed by the president of the Company. Other grievances "having to do with the inter- pretation or application of any express provision" of the agreement were subject to the arbitration of the arbitrability clause in case of failure to agree as to arbitrability and to final arbitration, as the Company had previously proposed. 3. On grievance investigation procedure, the Company proposed that a member of the executive committee could meet with another such member investigating an actual grievance relating to job evaluation, wage survey, and the like, if the second executive committee member were the "contract-provided representative" of the Union for the subject matter with which the grievance was concerned. 4 Regarding leaves of absence for union business, the Company proposed that the 20-day maximum for any individual (out of the aggregate of 60 days per cal- endar year) not apply to the president of the Union in regard to absences necessi- tated by reason of matters before the courts or the Board, or in arbitration. Time already taken off in 1963 prior to the effective date of the contract would be applied against the individual and aggregate limits. 5. The Company proposed a new dues deduction form, as well as contract lan- guage providing for such a form to be "mutually agreed upon," which provided for deduction of dues up to $4 per month (the then current dues) and for revocation by notice in writing 30 days before the first of any month. The parties discussed the Company's package proposal at considerable length on September 5, but failed to reach agreement. They agreed to meet again on Septem- ber 10. During the September 10 meeting the parties mainly discussed the Company's proposals relating to wage survey. Although the Company's agreement to include one of the breweries in the survey as a replacement for Piels was a concession to a union proposal, the Union objected to doing so on a factored basis, pointing out that the result of factoring was to minimize the effect of the dates of the factored company on the community average.14 Reed pointed out that Piels' rates had not been factored, although it was at least partially on a 35-hour week basis. However, the rates of one other brewery, which has been a survey company during the 1960 contract had been factored for survey purposes. Reed also rejected the proposal that after the community average for a wage group once exceeded the Proctor & Gam- ble average, then Proctor & Gamble wages for that group would move upward or downward in accord with the community average. The September 10 meeting ended with Quinn stating that he felt nothing would be gained by further discussion the following day until there was " some assurance of a constructive modification of position on one side or the other." Reed stated the Union was available for bargaining any time and said Quinn could name the date; Quinn replied that he was available at any time also, but that he saw "no advantage in making any further modification or anything else to our position because I do not see evidence on your part ... that we are closer to an agree- ment." The meeting ended with no arrangement made for a further session. The parties did not next meet until December 5 and 18, 1963 15 On September 18 Quinn wrote to Reed suggesting a clarification of the wording of the Company's September 5 package proposal in two respects, and stating he was available for bar- gaining "on some mutually satisfactory date after September 25th if you feel a con- structive purpose would be served by such a meeting." Reed replied on Septem- ber 25, suggesting that "the Company set forth clearly any changes it desires from the expired contract" and advising that the Union would "meet with you whenever and wherever you desire for bargaining purposes." In a letter of October 15, Quinn wrote Reed that a review of the August and September bargaining transcripts, 14 Thus, to illustrate, if the new brewery paid $140 for a 35-hour week, that would be a $4 per hour rate Translating $140 into an hourly rate based on a 40-hour week would mean that the hourly rate for survey purposes would be $3 50 Ii The Union, beginning in the summer of 1963, was actively considering the possibility of amalgamating in some form with other independent Procter & Gamble unions or affiliat- ing with some AFL-CIO International or with the Teamsters. Also, questions were raised regarding the validity of the internal election held by the Union in May, necessitating a rerun which was held November 20 It seems a fair inference that these internal union matters were at least in part responsible for the 3-month lapse in bargaining meetings between September and December. PROCTER & GAMBLE MFG. CO.. 369 Reed's recent correspondence and recent union publications, " give strong evidence that you do not feel we could reach agreement in negotiations for a new contract at this time." However, he stated "when you wish to bargain again for a new con- tract, you should notify me of what you have in mind to negotiate and the date you wish to meet." In his answer of October 22, Reed said the Union still had "constructive suggestions for arriving at an agreement" but could not " agree to postpone bargaining until you are, subjectively, satisfied that we are being construc- tive." He concluded by saying the Union was "ready to bargain at any time and any place that is convenient for you." On November 25, Quinn wrote Reed, noting that Reed had stated he was "ready to bargain at any time, but you have not named a date for me as I suggested." Quinn suggested meeting on December 5, which Reed accepted. At the opening of the December 5 meeting Quinn stated that the Company's position was the same as at the last bargaining session, but that the Company would consider altering its position if it had some indication that the Union was willing-to modify its position. The following exchange then occurred: Mr. REED: I don't know if it's on the record, so I'll repeat it. From what the Union has gotten from the Company, at the present there is no change in their position and they. are, sitting back to see what modification the Union is willing to make, and based on that, they will come forth with changes. Mr. QuiNN: This is as clearly as I can express it. Mr. REED: We have stated that we do not feel this is bargaining in good faith because if the Union was to take the same position . . . we would get no place. We feel that this is not true bargaining. However, if this is the only way that we can do it, then we will be forced to give,our modifications at this time. Initially, the Union sought to discuss the side agreements the Company had earlier rejected, claiming that the exchange of correspondence on these matters did not constitute bargaining. Quinn stated that before indicating a willingness to go through them he would need further assurance that in other areas the Union had some constructive changes to offer. Thereafter the Union asked if the Company was still opposed to modification of the no-strike clause in areas where the Union could not seek arbitration, and Quinn stated he would now consider altering his position on that point. Reed then proposed that the Union would accept the management rights pro- posal of the Company if modified to read as follows (words in brackets would be omitted and those in italic added): The Employer will [continue exclusively to] establish and change production schedules, [to] create new jobs and job classifications, [to] discontinue jobs and job classifications, [to] combine jobs and job classifications, [to] assign, re-assign, and re-arrange duties for jobs and job classifications, and [to] con- tract out work our employees are unable to perform. None of the above actions may be exercised by the Company if such actions were to interfere with the rights of the employees under the contract. An alternative proposal by Reed was to omit the last sentence quoted above and add after "perform" the words "as long as such action is reasonable and fair to the employee." Reed next proposed that the parties continue the arbitration clause of the expired contract but modified so as to provide for a permanent arbitrator. A third proposal by Reed was to agree to the Company's limiting time off for union business to 60 days for all employees if the union president were not con- sidered in that total. Quinn indicated disagreement with the Union's proposed modifications, but agreed to consider them.is The parties agreed to meet on December 18. When the parties met on December 18, Quinn stated that the Company was desirous of returning to the language that it "desires," rather than "agrees," that unfairness shall not exist, and in response to the Union's proposal on modifying the no-strike clause, would agree that the Union could strike, after exhausting the grievance procedure, on matters that were not arbitrable, but only after notification 1a Reed also inquired, at the December 5 meeting, whether Quinn would "be willing to put guaranteed employment in the contract" ; Quinn replied that "at this time" he was not, that he would "have to know what it would buy." 257-551--67-vol. 16 0-2 5 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of intent to strike and lapse of a waiting period during which the dispute would be negotiated. Quinn also agreed to incorporate in the contract a panel of five named arbitrators, who would be used in rotation, but with the proviso that one who determined the question of arbitrability would not hear the issue on the merits. As to the other proposals made by the Union at the December 5 meeting, relating to management prerogatives, time off for union business, and inclusion of guaranteed employment, the Company's response was that these were not acceptable. Reed objected to the aspect of Quinn's no-strike proposal that required exhaus- tion of the grievance procedure prior to a strike over a nonarbitrable issue, claim- ing that the delay involved was too long. The parties ended the meeting on the following basis: Mr. REED: We will attempt to come up with a proposal [on a modified no- strike clause], as I mentioned before. Mainly you are still sticking to your pro- posal of September 5th, which has already been rejected by our people. Mr. QUINN: With the modification. Mr. REED: So the only change is in the modification of which you want us to make a proposal. We will do this. When would you wish to meet again? Mr. QUINN: I would leave this to you. . . . We will make ourselves avail- able any time after the 5th of January. Mr. REED: Suppose we do this: Suppose we contact each other after the 1st of the year. How would that be? Mr. QUINN: Fair enough. Why don't we leave it this way, just to make it definite: Mr. Pease and you will be in touch with each other. Mr. REED: All right. F. Bargaining during 1964 1. Prior to the Teamsters affiliation vote in June The parties did not meet in negotiations during January 1964, for reasons that do not clearly appear in the record. On February 4, the General Counsel issued the first complaint in this proceeding . The following day, Quinn wrote to Reed, stating that he "must insist that you tell me at once what your intentions are with respect to bargaining," and that the Company was "still ready to bargain with the Union on any matter involved in reaching agreement on a new contract." He reminded Reed that at the December 18 meeting, a negotiation session was to be arranged during the week of January 6, in order for the Union "to present proposed contract wording," and observed that on January 7, Reed told Pease that the Union "did not wish to negotiate until after the Company met with the National Labor Rela- tions Board concerning the Union's charges against the Company." In any event, the parties resumed negotiations on February 18. When the parties met on February 18, the Union presented the following word- ing for modification of the no-strike clause: It is understood that in all actions by the Company in which conditions of employment are affected and where a disagreement results with the Union and where there is no provision culminating in arbitration, the no-strike clause be considered null and void. In response to questioning by Quinn, Reed stated that this proposal contemplated that all nonarbitrable matters should be listed by the Company and spelled out in the contract and that as to such matters the grievance procedure would not apply. The Union also proposed, in lieu of the Company's suggestion for a panel of five- named rotating arbitrators, that the parties agree that one of two of the named arbitrators advanced by the Company be selected as the permanent arbitrator. In addition, the Union proposed that arbitration of arbitrability be eliminated from the Company's September 5 proposal and that the final step in the grievance pro- cedure prior to arbitration, review of the grievance by the president of the Com- pany or his representative, be in person rather than "strictly by letters." Another union proposal at this meeting was that it would agree to submit new and revised dues deduction cards, provided the Company agreed that all members in good standing as of the expiration of the prior contract be considered members in good standing as of the signing of the new contract. The parties continued to be in disagreement on time off for union business, whether in the investigation of grievances a member of the executive committee PROCTER & GAMBLE MFG. CO. 371 could meet with another member of that committee, and on the wage survey. With regard to the latter matter, the Union stated its position to be that a brewery should replace Piels on an unfactored, retroactive basis dating back to the early months of 1963 when the wage survey was discontinued. The Union also proposed that the Company' s unilateral disability benefit plan and group life insurance plan be included in the contract, with no changes in the existing substantive provisions. Quinn agreed to consider this proposal. The parties then began a detailed review of the side agreements, some 65 in number, submitted for inclusion in the contract by the Union in April 1963, to which the Company had responded on May 28, 1963. This review continued for the next four bargaining sessions on February 19, 20, and 27, and March 5, covering some 800 transcript pages of the negotiations . In some instances, the parties reached agreement; in others, the Union agreed that an alleged agreement was not in fact an agreement or that it had ceased to be applicable. The Company rejected some, and agreed to consider others. At various points in the extended discussion Quinn made clear that his reason for rejecting certain side agreements was that he felt they were in conflict with or would dilute the Company' s management prerogatives clause. The March 5 meeting ended with the understanding that the Company would as promptly as possible prepare a complete counterproposal, after consideration of the several side agreements it had taken under advisement and also the Union's other modified or new proposals. When the parties reconvened on April 15, 1964, the Company presented a new overall proposal ieplacing the complete package offer of September 5, 1963. Changes from the proposal made on September 5, as thereafter modified, were as follows: 1. The no-strike clause was modified to provide that on matters not arbitrable the Union, after exhaustion of the grievance procedure and expiration of a 30-day period of negotiation after completion of the grievance procedure, could strike within the next 30-day period; in the event of a strike or threatened strike without reasonable notice, the Company could lock out employees to avoid economic loss or impractical operations during the strike. 2. Improved vacation and holiday benefits were offered, adding a 5th week of vacation for employees with more than 20 years of service and a 4th week for those with more than 15 years of service, and a 10th holiday, the day before Christmas. 3. Some additional interpretations, derived from the side agreements, were pro- posed to be added to the contract. 4. Unilateral company plans, such as guaranteed employment, disability benefits, group life insurance, and profit sharing were not included, the Company having considered and rejected the Union's proposal for their incorporation. 5. The Company proposed a 4-year contract on the basis of the economic benefits included in the proposal. At the April 22 meeting Reed stated that the Company's April 15 proposal had been rejected at a membership meeting, and then proceeded to list the reasons therefor, as follows: 1. The 4-year term of the contract was too long. 2. The management rights clause. 3. Factoring the wages of the brewery proposed to be added to the wage survey. 4. The Company's no-strike clause would require 30 weeks' delay before the Union could strike. (Quinn later computed a minimum delay of 131/2 weeks.) 5. Restriction on leaves of absence for union business. 6. Restriction on the right of executive committee members to present grievances. 7. Restriction on the right of executive committee members to investigate grievances. 8. Precluding investigation of potential grievances. 9. Elimination of side agreements. 10. No provision for retroactive pay. 11. Requiring signed cards to establish union membership. 12. Exclusion of guaranteed employment, profit sharing, disability plan and group insurance from the contract. 13. Only matters expressed in the contract would be binding, thereby excluding agreements made at monthly meetings during the contract term. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After Reed had concluded itemizing the foregoing objections, the following ex- change occurred: Mr. REED: . So much of this, Mr. Quinn, the membership feels is tied in with the unfair labor charge. Almost every one of these the Labor Board said you dealt unfairly with us. Mr. QUINN: I must correct you. The Labor Board has not said anything about that. Mr. REED: Let me say that the regional director has alleged that you have bargained with us in bad faith in these areas. I have the complaint here if you wish me to read it for the record. Mr. QUINN: I am not interested in that. Mr. REED: Do you dispute what I said? Mr. QUINN: It has no part in our bargaining. Mr. REED: I am not saying, Mr. Quinn, that it has a part. I tried to tell you one of the reasons our membership thinks the way they do, that all of these- items are involved in the unfair labor charge. Mr. QUINN: It may well be. But I am simply telling you that we are the parties who must ultimately sign our contract. Mr. REED: There is no question. But the membership feels that to agree to these many things, they, are actually in conflict with the Labor Board. The Labor Board says you have been wrong in these things. During the discussion that ensued, the Company indicated that it would be willing to alter its position in certain unspecified areas if by doing so it would lead to a contract; when Reed stated that the management rights clause was "the key," Quinn replied that it was "a fundamental thing," on which "movement . .. is practically impossible." The Company did change its position on the presentation of grievances in the first two steps, agreeing that an executive committee member could present the grievance if the steward were not available. Quinn also agreed to review the Company's position that potential grievances could not be investigated, and indicated he might change his position. Two more meetings were held on May 13 and 19, prior to the vote on affiliation with the Teamsters, which occurred on June 16. At the May 13 meeting the Union made two proposals for modifying the Company's management rights clause, the first relating to contracting out work and the second dealing with job discontinu- ances and job classifications, as follows: 1. The Company will have the right to contract out work in classifications where there have been no eliminations in the past year or no eliminations will result from contracting out. This will be retroactive to the expiration date of our last contract. 2.-The Company will have the right to discontinue jobs and job classifica- tions, to combine jobs and job classifications, to assign and reassign duties for jobs and job classifications, if there is less than 5 hours' work in classification. After ascertaining from Reed that company acceptance of the first proposal would not lead to agreement, Quinn tentatively rejected the proposed limitation on con- tracting out. Quinn also rejected the second proposal since the Union declined to state what its total proposal for reaching agreement was. With regard to arbitration, the Union proposed accepting the Company's concept of rotating arbitrators, but requested that the number be limited to three instead of five It agreed to two names that had been suggested by the Company and proposed a third. Quinn agreed to limiting the number to three and withheld agreement on the third name proposed by the Union. At the May 19 meeting, which lasted only about 30 minutes, Quinn repeated that the Company did not agree with the Union's two proposals made on May 13 modi- fying the Company's proposed management rights clause. The Company did propose that Piels Brooklyn plant be included in the wage survey on an unfactored basis, whereas its previous offer had been to add this company on a factored basis. How- ever, Quinn stated that this new offer was not on a retroactive basis, and, that it would expire on May 28. The parties adjourned without arrangements for a future meeting. 2. After defeat of Teamsters affiliation On June 16, 1964, the membership of the Union, following a period of about 2 months of active - campaigning among factions favoring and opposing affiliation, PROCTER & GAMBLE MFG. CO. 373 voted 554 to 400 against affiliating with the Teamsters. The position of the Union's executive committee and official leadership was in favor of affiliation. The parties met on June 23, at which time the Company again offered to include Piels in the wage survey on an unfactored basis, but not retroactively. On other matters the Company's position remained as previously stated, except that it pro- posed to allow time off for union business as necessary, thereby eliminating the 60- day limit, and it also proposed to permit the investigation of potential grievances and to allow members of the executive committee to meet with each other in the investigation of grievances, with the understanding that the procedure would not be abused. When the parties next met on June 26, Reed stated that the membership of the Union had again rejected the Company's proposal. With respect to the management rights clause, the Union proposed that the parties agree to the contracting out clause and 5-hour rule on job eliminations, as proposed by the Union on May 13, and that the contract provide for reopening in 1 year if the Company felt that these proposed clauses were too onerous. At the July 21 meeting, Quinn renewed the package proposal previously made, but modified it to the extent that after 1 year of the proposed 4-year contract the Union could reopen and, if no agreement were reached, then the contract would terminate and all economic benefits would revert to their precontract levels. When the parties next met on July 22, the Company rejected the Union's proposed modifi- cations of the management rights clause. The Company also rejected the Union's proposed reopener, and the Union likewise refused to agree to the Company's reopener proposal. The parties ended the July 22 meeting by agreeing to meet on August 12, following the summer shutdown. During the August 12 meeting there was some discussion of the Union's claim that the Company had not followed the job bidding procedure of the expired con- tract in placing surplus employees for more than 6 weeks as temporary vacation relief in the warehouse. The Company agreed that such assignments were subject to the bidding procedure, absent waiver by the Union, and that under the new con- tract alleged violations would be arbitrable. The parties also reached agreement regarding dues deduction, the Company agreeing that for the first 30 days of the new contract the old dues deduction cards on file would be the basis for making deductions, and a new card would thereafter be utilized. The Union also agreed it would furnish the Company with a list of those employees who were members as of the day the contract was signed, which list would exclude those who had resigned during the no-contract period. The Union requested the Company to consider paying retroactive pay to those employees who would have received an increase by operation of the wage survey if the Staten Island plant of Piels had been treated as still in the survey between January 1963 and the next semiannual survey in March 1963. Quinn agreed to con- sider this request. The Union again requested that the Company abandon its "exclusive right" proposal. The following exchange occurred between Reed and Quinn: Mr. REED: You have our position on contracting out. You know our position to the people. It's been stated pretty clearly in the [Union] paper that we're not for giving you the exclusive right. There is no question in our minds, or I'm sure in your minds, that the people have shown enough faith in us that any time any decision is to be reached, they are going to count on us as leaders to give our recommendation for or against something. The only way we can have a recommendation would be if we can . . . eliminate the wording exclusive right from the contract and to have an area in the contracting out and the eliminating of jobs . . . . These two are the key ones. What we have discussed up to now is important, but these are the key ones, not only in our minds but in the minds of the employees. Mr. QUINN: Bob, I have tried my best to think of some way that we could work a satisfactory arrangement to both sides here in this area, and I can say that the management rights expression we have included in our maintenance of rate proposal is something that I make no apology for . Everything that's been proposed impinges on that area and tends to limit that area, tends to modify that area, and the Company is not agreeable to modifying that area. It's unfortunate that the committee cannot see fit to recommend a contract containing that phrase or its equivalent or that wording, knowing what it means.... 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. REED: . . . We are willing to make another concession in this . that the Company would have the right to contract out work in classifications or where there have been no eliminations in the past year. Retirements will be excluded . . . . We think this gives you everything , everything that you need, and it's taking a lot away from us, and we're willing to make this con- cession to keep the exclusive right out of the contract . That's the key thing with our people. Mr. QUINN: Bob, it's the key thing with the Company . . And almost anything that is said in this area assumes that the Company has not always had the exclusive right to do these things that are delineated here . . . . Bob, I would be doing a disservice to the Company , I'd be doing a disservice ulti- mately to the employees if I permitted that continuing right to be abridged. Now, it would be awfully nice if there were some way to get out of that apparent dilemma, but I say again to permit a limitation of the management function is something that the Company cannot agree to. As much as it would get us off the horns of this problem, I can't accept that. Mr. REED: So be it. I guess there is no sense in going any further then if that's your position on that. At the August 17 meeting, the Company agreed that it would give whatever increase would have resulted from the use of the wage survey between January and mid-March 1963, on the assumption that Piels Staten Island rates were part of the survey during that period, retroactive to January 7, 1963. This offer, however, was available, so Quinn stated , "if we get our contract signed by this time next week." In explanation of this offer, the Company stated that only one increase granted by a survey company in the January-March 1963 period would have resulted in an increase to P & G employees, and that was the Gulf Oil Company increase. Three groups would be affected by this offer, amounting to 21/z cents each for male pro- duction employees and watchmen, and 5 cents for firemen . The Company also noted that its contract offer now included two reopening periods. After a short recess, the Union rejected the Company's overall package proposal. On September 9 the parties again met, and the Union then stated it would accept the Company's outstanding package proposal with the following modifications: 1. The Company would be free to contract out work except in classifications where a job had been eliminated in the past year or a job would be elimi- nated by contracting out. A retirement would not be regarded as an elimi- nation. 2. The Company could eliminate jobs having less than five hours of work. 3. Retroactive pay from the date Piels Staten Island plant was removed from the survey until the signing of the contract , with Piels Brooklyn plant then substituted on an unfactored basis. 4. Recognition of the Union as bargaining agent for the watchmen, in a separate unit. 5. Vacation improvements to be granted employees who had retired since January 1, 1964. The Company rejected these proposals, although Quinn indicated that recognition of a unit of watchmen was no particular problem. On September 28, 1964, the parties executed contracts for the production and maintenance and clerical units, containing the terms as had been proposed by the Company on August 17, thereby culminating the protracted negotiations that began on April 10, 1962. In terms of the major issues that figured in the negotiations, the agreement reached reflects the following: 1. The Company won agreement with its management rights clause , first pro- posed on May 22, 1962. 2. With respect to arbitration, the Company achieved its basic proposal to limit arbitration to "any express provision " of the agreement, but the following related modifications were also agreed to: (a) all unsettled grievances , whether or not involving an "express provision," could be referred to a representative of the presi- dent of the Company for determination ; (b) a separate board of arbitration to determine whether unsettled grievances were arbitrable ; (c) agreement on three impartial arbitrators for the life of the contract in place of the prior arrangement, to which the Union objected, of selection of the neutral arbitrator on a case-by- case basis ; (d) the modification of the no-strike clause to permit strikes over non- arbitrable grievances, after the grievance procedure had been exhausted and a 30- day period of negotiation had elapsed; (e) inclusion of a provision making all PROCTER & GAMBLE MFG. CO. 375 disciplinary actions for cause, rather than only those resulting in termination, arbi- trable; and (f) inclusion of some 20 interpretations, derived mainly from prior past understandings of the parties. 3. In substantial part, the Company receded from its original demands relating to grievance investigation procedure and time off for union business. 4. On economic matters, the Company improved its original offers on vacations, holidays and illness and accident pay, as well as Blue Cross-Blue Shield contribu- tions. On wages, the Company agreed to include Piels Brooklyn plant, on an unfac- tored basis, in the wage survey, thereby resulting in increases effective with the signing of the contract. The contract, as the Company had originally proposed, pro- vided for maintenance of rate for 2 years in situations where an employee moved to a lower-rated job because of job changes occasioned by health reasons or the exercise of management rights resulting in changed job assignments. G. Other events during the course of bargaining During the extended period of contract negotiations the Respondent took certain actions with respect to a number of matters which the General Counsel alleges were independent violations of the Act as well as integral factors in the Respond- ent's overall bad-faith bargaining. These matters, some of which have been referred to in the preceding sections summarizing the bargaining negotiations , include (a) the discipline of Union President Reed in November 1962, (b) the suspension of the wage survey in February 1963, (c) the alleged refusal in August and Septem- ber 1963 to furnish wage survey data, (d) the limitation on meetings between members of the executive committee beginning in February 1963, (e) action regard- ing the announced dividend day boycott in April 1963, and the ban on distribution of union literature in May 1963, (f) the operation of the surplus pool and related probelms, and (g) the tightening administration of the time bonus plan . We turn then to a consideration of these actions. 1. Discipline of Union President Reed On October 5, 1962, there was published in a local paper a picture of a house purchased by Reed, together with information identifying Reed as president of the Union and stating that the sale "was negotiated by Mrs. Elinor R. Coady" and that "Martin Loftus, Newark, represented the buyer." Mrs. Coady is the wife of Ray- mond Coady, then vice president of the Union and Loftus, counsel for the Union. The following Monday, October 8, Ted Buckenmeier, a group manager in the food products department, posted a copy of the picture and accompanying text on a company bulletin board. Buckenmeier showed the picture to Chester Antczak, a shop steward, pointed out the names of Mrs. Coady and Loftus, and commented that "it looks like an inside deal." Buckenmeier refused to remove the posted clip- ping when requested to do so by Antczak and later by Mario Celardo, a member of the Union's executive committee . Coady angrily protested the posting to Bucken- meier, telling him to "wipe the grin off his face" or he (Coady) would do so. Later in the week Coady protested to Industrial Relations Manager Pease, who remarked that Buckenmeier's action was not proper. Apparently the clipping remained posted for only a day or two. Reed was away from the plant during the first 2 weeks after the clipping was posted, but learned of the incident upon his return . So far as appears , Reed did nothing about the matter at that time. On the morning of November 9, Reed was released to attend a grievance investigation with Shop Steward Antczak, and the two of them met with Buckenmeier in the latter's office . Buckenmeier then arranged for the three of them to hold the grievance meeting, which involved a time-bonus problem, in the office of Herbert Vaughn, time-bonus engineer. As they were pro- ceeding to Vaughn's office, with Buckenmeier in the lead, Reed asked Antczak if Buckenmeier was the person who had posted the clipping of his house on the bulle- tin board, to which Antczak replied in the affirmative. When the group reached Vaughn's office , and before any discussion of the bonus question began, Reed turned to Buckenmeier and asked if he was responsible for posting the picture, and why he did it. Buckenmeier acknowledged that he had done the posting and, after Reed had accused him of starting a smear campaign which he denied , said he con- sidered the matter news. Reed, in a loud tone and emotional manner, told Bucken- meier that if the latter again put anything on the bulletin board concerning him, his family, or his personal life, he (Reed) would rip it off and cram it down Bucken- meier's throat. Buckenmeier grinned, and Reed twice repeated his earlier statement. 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reed and Buckenmeier were standing about 2 feet apart and Vaughn, believing a fight was likely to ensue, terminated the meeting (which had not begun), and ordered the group out of his office, saying he would not conduct business in such an atmosphere. After the incident Vaughn related the facts to Industrial Relations Manager Pease and Kenneth Stettner, manager of the services plant in which Reed worked. After a preliminary investigation, Stettner set up a meeting during the afternoon in the office of Frank Celardo, Reed's department manager, to consider whether Reed should be disciplined. Management representatives involved were present, as was Reed and Vice President Coady of the Union and Angelo Sauquini, a member of the Union's executive committee. The meeting lasted about 45 minutes, during which all persons involved, including Reed, gave their versions of the incident. No claim was made at the meeting by Reed or his union colleagues that Reed was being discriminated against. At the conclusion of the meeting Stettner, in the pres- ence of Reed and the other representatives of the Union, dictated the following notation to be placed on Reed's employment record card: Robert Reed, as of this date, during a meeting with management, used threat- ening language against a manager. As a result of this the meeting had to be terminated. It was emphasized to Robert Reed that threatening language will not be tolerated and he was reminded that he has a final warning on his card. The statement in the notation that Reed "was reminded that he has a final warn- ing on his card" had reference, as Stettner testified, to a prior warning (the only other disciplinary marking on Reed's card) given Reed on December 7, 1961, which warning ended with the statement that "any further violation of company rules will result in disciplinary action up to and including termination." The Union thereafter filed a grievance regarding the November 9 action, claiming that the marking of Reed's card was unwarranted, unfair, and constituted discrimination against a union officer. The Company rejected the grievance at a step 3 meeting on January 8, 1963, as follows: The entry made on this employee's card on November 9, 1962 was a factual statement of what occurred and is a correct accounting of what he was told con- cerning his conduct. His conduct involved violation of Company rules threat- ening a member of management, and this will not be tolerated. We feel that the Company's action was proper and there was no discrimination. The General Counsel argues that, as alleged in paragraph 33 of the complaint, Reed was discriminatorily disciplined because of his activities on behalf of the Union, and that the action constituted disparate treatment of the president of the Union. With respect to the alleged disparate treatment, much evidence was adduced regarding the markings on employment record cards of other employees, by both the General Counsel and the Respondent, all of which has been carefully con- sidered. The General Counsel's position, as stated in his brief, is that the marking given Reed on November 9 "was not the normal marking given employees for sec- ond disciplines," and that generally on such occasions the markings "have been `a further violation of any company rules will result in disciplinary actions up to and including termination,' and at times there was a layoff without pay included along with the markings." He further argues that although the evidence is contradictory "as to whether the marking of `final warning' was more or less severe than the nor- mal second discipline afforded other employees, it is clear that the threat of impending discharge for any new infraction is a very severe penalty" viewed by employees "as more severe than normal second disciplines." There appears to be no dispute that Reed's conduct was reasonably regarded as violative of the company rule against the use of abusive or threatening language.17 The plain language of the November 9 entry and the credited testimony of Stettner who dictated it and of Industrial Relations Manager Pease, clearly shows that the November 9 marking was not a "final warning" in the sense that the next rule infraction by Reed would necessarily lead to discharge. In fact, the language 17 The expired 1960 contract provided ( article XIV, section 2 ) that "all employees shall observe the rules and regulations of the Employer , as listed in 'P & G and I ,' or posted on the bulletin boards " The pamphlet entitled "P & ^G and I" listed a number of rules, including the rule "Never use abusive or threatening language," and further provided that violation of the rules listed "will be considered cause for discipline . Disciplinary action may include discharge." PROCTER & GAMBLE MFG. CO. 377 reminding Reed that he "has a final warning on his card" referred to the Decem- ber 7, 1961, marking, which was Stettner's manner of characterizing the earlier warning that "any further violation of Company rules will result in disciplinary action up to and including termination." The November 9 marking was not a "final warning" nor did the use of those words to refer to the earlier marking serve to amend the earlier marking by adding to its severity. I accept the testimony of Stett- ner and Pease, which is corroborated by the record of markings in other disci- plinary cases, that regardless of whether the term "final warning" is used, as it has been, or whether the phrasing is that a further violation will result in disciplinary action "up to and including termination," the nature of the discipline in the case of a further infraction is determined by a consideration of the circumstances and the concept of "final warning" carries no necessary implication that the next violation of a rule automatically will result in more severe discipline. Nor do I find merit in the suggestion that Reed's conduct was not properly the subject of discipline because his reaction was an "outburst" in response to Bucken- meier's provocation. Several weeks had passed between the posting and Reed's knowledge thereof, and the November 9 incident. In my view, Reed went out of his way to upbraid the youthful Buckenmeier, and was not reacting in a spontane- ous manner to an ill-advised action a month earlier by a minor member of super- vision. I find no violation of the Act in the treatment accorded Reed as a result of the November 9, 1962, incident. 2. Suspension of the wage survey-February 1963 The 1960 contract contained the following provisions regarding the Company's longstanding wage survey policy, by which the wages of Port Ivory employees were periodically reviewed and adjusted: Subject to the approval of the appropriate governmental agency, if neces- sary, it is agreed that the Employer shall continue its policy of paying wages that match the wages paid by leading companies in the community for similar types of work determined by wage surveys, conducted in the manner herein set forth. In order to make comparisons between similar types of work, the factory workers shall be considered in the following main groups: 1. Stationary engineers 2. Firemen 3. Maintenance Mechanics 4. Male Production Employees 5. Women Production Employees 6. Male non-supervisory weekly paid 7. Women non-supervisory weekly paid During the contract period the Employer shall determine the average base rates in the community for these groups every six months by making a survey of the base rates paid by employers at places where work would be com- parable to work at the Employer's factory. The average rate for each of the above groups shall be compared with the average of the five highest rates in each of the above groups in the companies used in the wage survey. The Com- panies used in the wage survey have been agreed upon between the parties in the negotiation of this Agreement and shall not be changed except by mutual agreement between the Employer and the Union. If requested by the Union, a survey shall be made more often but not more frequently than once every three months. The results of such survey shall be furnished to the Union or its Executive Committee upon request, and wages may be readjusted after conference with the Union or its Executive Committee subject to the approval of the proper governmental authority if necessary. Two representatives, employ- ees appointed by the Union, shall be entitled to sit with the representative of the Employer on the compilation of the survey figures with the distinct under- standing that all information shall be strictly confidential and that no record of figures shall be taken. Following the expiration of the contract on August 3, 1962, the Company con- tinued to grant wage increases as a result of the operation of the wage survey, the last such increase being announced on January 11, 1963. From the outset of negotiations for a new contract the Union had raised issues concerning the opera- tion of the survey and had made requests for changes. To summarize, as of the 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD negotiation meeting on December 18, 1962, the following unresolved wage survey issues were outstanding: 1. The total number and the particular companies to be included. 2. Whether the average rates of the top four rather than the top five com- panies would be used. 3. Whether duties of employees in wage survey companies were being com- pared properly with duties of P & G employees. 4. Whether watchmen should be placed in the male production group for wage survey purposes. 5. Whether the wage rates of a wage survey company working less than a 40-hour week should for survey purposes be factored to a 40-hour week basis. At the December 18, 1962, negotiating meeting, Quinn for the Company announced that early in January 1963 Piels' brewery on Staten Island, then a wage- survey company, would cease operating. As to the impact of Piels being no longer a survey company, Quinn made the following statement: Very roughly, if Piels were dropped out of the survey today, stationary engi- neers would be reduced by approximately 221/2 cents, mechanics, approximately .. . fifteen cents. And male production, approximately fifteen cents. There would be some small effect on male and female clerical, something in the order of fifty cents or a dollar per week. Quinn made clear that the question of agreeing upon a substitute survey company to replace Piels was a bargainable issue tied in with the overall contract negotia- tions and, in answer to expressions of concern that wages would be reduced in January when Piels dropped out of the survey, stated, "I think we would continue rates until the semi-annual survey, which is sometime in March." Quinn rejected the suggestion that the substitution of a new survey company for Piels be con- sidered separate from the overall negotiations, stating that it "would be foolish to give the other good provisions we have offered you unless we tied the whole thing up." In answer to the accusation by a member of the Union's committee that by tying the substitution question to the overall settlement the Company was putting economic pressure on the Union, Quinn replied: "If this be economic pressure, then make the most of it." Late in December 1962 or early in January 1963, Industrial Relations Manager Pease, who was responsible for administration of the wage survey, learned that Consolidated Edison, a wage-survey company, had given a wage increase to its employees on December 20, retroactive to December 1, 1962. Wage-survey calcula- tions were made and on January 11, 1963, the Union was notified that as a result of the Consolidated Edison increase P & G maintenance mechanics would be increased 21/2 cents per hour, retroactive to December 3, 1962.18 Peels closed its Staten Island plant as of January 5, 1963. On January 9, Pease learned that the Gulf Oil Company, which was in the wage survey, had granted a wage increase and asked his assistant, David Brown, to check on the matter. About January 14 Brown reported that Gulf had granted a general wage increase retro- active to January 1, 1963. Pease asked Brown to calculate what effect this Gulf increase would have on rates being paid by the Respondent. About January 21 Brown reported to Pease that the Gulf increase (which would have affected the employees of the Respondent on January 7, the first Monday after the effective date of the Gulf increase) had no upward effect on the wages of Respondent's employ- ees because Peels was no longer in operation on the critical date January 7, and also stated that the community averages without Piels were lower than the rates in effect for the Respondent's employees. At the January 11, 1963, bargaining session the parties had discussed Piels' closing and the effect that circumstance would have on the wage survey. Reed took the position that even though community averages, with Piels out of the survey, were reduced below P & G rates, the wages of P & G employees could not be reduced. The Respondent, on the other hand, contended that as a result of wage- survey calculations the wages of its employees could go upward or downward. Reed also stated that the Union wished to receive "all the information pertaining to the companies in our survey, pertaining to the rates of all the employees they Is The Company's standard practice was to calculate and apply the retroactive portion of an increase as of the Monday following the effective date of the survey company's retro- active increase. PROCTER & GAMBLE MFG. CO. 379 have" in order that the Union might determine its position on the substitution of a company for Piels; he stated that the information would be treated in a confidential manner. Reed also referred to the Union's view that duties of P & G employees had become less comparable with those of employees of survey companies, thereby pro- ducing an inequity in the wage survey. As recounted above, on January 18 Nerlino, a member of the Union's executive committee, met with Ashton, an assistant to Pease, and obtained information show- ing the effect the removal of Piels from the survey would have on the averages of the top five companies in the wage survey. This was not sufficient for Reed's pur- poses, and Reed instructed Nerlino to obtain the actual wage rate averages of all classifications in all the survey companies, with the averages related to the partic- ular company. When Nerlino returned to Ashton with this new request on Jan- uary 22, Ashton offered to show hirn the data but declined to permit him to take a record of the figures out of the office. Nerlino repeated his request on January 24, at which time Ashton called attention to the confidential nature of the data and the provision in the 1960 contract with respect thereto. When Ashton expressed fear that furnishing the information might lead to a refusal by wage survey companies to participate in the survey, Nerlino said he would have the secretary of the Union write the Company stating exactly what the Union wanted. No such specific request was made. On January 25, 1963, Quinn wrote to Reed, stating that Nerlino had notified the Company that the information furnished on January 22 was not satisfactory and that the Union "wanted copies of all detailed wage data for the stated purpose of allowing the Union to check the data through the unions at the surveyed com- panies." Quinn further stated that the attempt to obtain the confidential figures "has to be considered as a new complication in our bargaining," that he assumed "the Union had in mind some other methods of wage survey," added that if that were so the Company "will bargain as appropriate about any new proposal" and sug- gested Reed "write any such ideas to me so that I may consider what arrangements for bargaining should be made." On February 1, 1963, Quinn wrote to Reed noting that he had received no reply to the January 25 letter and that the Union's posi- tion "in negotiations and through its recent request" indicated that the Union "is in disagreement with the wage survey." He then stated that under the circumstances "it would not be proper for us to put into effect any wage survey increases until the whole matter of wage survey is resolved through proper collective bargaining." The allegations in the complaint (paragraphs 20(a) and (b)) are that on or about February 1, 1963, the Respondent "unilaterally changed the terms and conditions of employment of its employees ... by terminating the Wage Survey Plan, without prior notice to the Union and without having afforded it an opportunity to negoti- ate and bargain . . . with respect thereto," and that the Respondent "unilaterally terminated" the wage survey "in reprisal for the Union's actions and positions taken during" bargaining, "because the Union sought from the Respondent informa- tion ... pertaining to wage rates paid by other employers" in the survey, and "to induce its employees to select as officials of the Union officials other than the incumbent officials." The General Counsel further alleges that the foregoing action of the Respondent was violative of Section 8(a)(1), (3), and (5) of the Act, and urges that employees be made whole for loss of pay suffered "by reason of the failure of the Company to grant wage increases due them as a result of the wage increases of the Gulf Oil Company" and other companies in the survey during the period January 1 to March 28, 1963 (the latter date being the approximate date the semiannual survey would normally have been taken), and that this make whole provision run from the date the increase was due until September 28, 1964, the date the new contracts were executed. Aside from the fact that the parties were in substantial disagreement as of December 18, 1962, and thereafter regarding both the specific provisions and the operation of the wage survey, the principal event that occurred in early January 1963 affecting the wage survey was the closing of Piels' Staten_ Island plant and the effect such closing would have on the survey. The General Counsel argues that on December 18, 1962, and again on January 11, 1963, the Company agreed "to con- tinue the wage rates" in the survey until the March 1963 semiannual survey; implicit in this contention is the assumption that the rates of Piels' Staten Island plant, despite its closing, would be treated as still in the wage survey until March 1963. The evidence does not support this argument or implied assumption. At the December 18, 1962, meeting, Quinn for the Company, answering fears expressed that the impending closing of Piels would result in wage reductions, stated "I think we would continue rates until the semiannual survey, which is some 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time in March." Plainly this was no commitment by the Company to keep Piels in the wage survey until March . The more reasonable interpretation is that Quinn meant only that the wage rates of the Company 's employees would not be recal- culated immediately when Piels dropped out in January , as then anticipated, but would be maintained at their then levels until the March survey. The announce- ment of the increase on January 11, 1963, resulting from the Consolidated Edison increase, and the subsequent handling of the Gulf Oil increase , are consistent with this interpretation . The Consolidated Edison increase was retroactive to Decem- ber 1, 1962, and , since Piels was still in business on that date and on December 3, the effective date of any increase due the Company's employees, the wage survey calculation included the Piels' rates. The Gulf increase became known on Jan- uary 9, 1963, and the retroactive date of any increase resulting therefrom for the Company's employees was January 7, 1963. As of that date, however, Piels was out of business, and in consequence its rates were excluded from the calculation with the result that the Gulf increase had no positive effect upon P & G rates. The Respondent did not "unilaterally terminate" the wage survey. What it did do was to refuse to continue it on an artificial basis with the rates of the nonexistent Piels' Staten Island plant hypothecated in, pending overall resolution in bargaining of the serious differences about the wage survey and other outstanding issues. The substitution of a replacement for Piels was clearly a bargainable issue, which the Respondent was not obliged to reach agreement on as a separate matter unrelated to the other issues in dispute. While it seems clear enough that the Union 's demands regarding wage survey as well as its January requests for information which under the 1960 contract was agreed to be strictly confidential ,19 were factors influencing the Company's decision to maintain the status quo on wage survey pending a mutually acceptable resolution of all issues , I am not persuaded that the Company's motivation was, in the total context, a "reprisal" against the Union or that it was influenced to act as it did in order to induce employees to change the leadership of the Union in the upcoming elections in May 1963. Accordingly , I find that the allegations of paragraphs 20(a) and (b) of the complaint are not substantiated by the evidence. 3. Alleged refusal in August and September 1963 to furnish wage survey data a. The August request Paragraph 25 of the complaint alleges that about August 22, 1963, the Union requested the Respondent to supply it with "data relating to the wage rate aver- ages of Respondent's employees" as of the date in early February 1963 "when Gulf Oil Company gave an increase to some of its employees"; and paragraph 26 alleges that since August 28, 1963, the Respondent refused to furnish such data. The terms of the Union's request, and the evidence relating thereto , are contained in the transcript of the bargaining negotiations. At the August 22, 1963, negotiation meeting, the parties, among other things, discussed the Company's wage survey proposals as these had been set forth in writing to the Union on March 28, 1963. As previously noted, these provided that (1) the wage-rate schedule as of the signing of the new contract would be the same minimum and maximum rates currently being paid and rates would not be lowered during the term of the agreement and (2) the companies in the last wage survey (excluding Piels) would be surveyed but there would be no retroactive recalculations or spot surveys. The following discussion took place: Mr. REED: Have there been any wage surveys taken since the last time the Union has been notified of any? Mr. QUINN: We have made no surveys of any kind. I think you have the last one we've taken. Mr. REED : You did not go out and take a survey when Gulf got an increase, Mr. Pease? 19 The General Counsel in his brief states that the "refusal [ of the information ] itself was not an unfair labor practice in view of the clear language of the 1960 contract," but contends that the "termination was motivated by the request and was timed so as to disparage the union leadership, influence the outcome" of union elections, and "to bring about a change" in the Union's bargaining posture. PROCTER & GAMBLE MFG. CO. 381 Mr. PEASE: Not an actual survey, no, Bob. I know the increases that Gulf had. Mr. REED: We would like to have at the present time the present position of all the groups in the wage survey, how they stand with the companies, out- side companies in the wage survey. Mr. PEASE. What is that? Mr. REED: We want to know our present standing up to date. You did not go out and take a semi-annual survey in March, Mr. Pease? Mr. PEASE: No, we did not, Bob. We did not bring anything up to date at all. * * * * * * * Mr. REED: Under the old contract, there are supposed to be two semi- annual surveys taken. One was due last March. There was supposed to have been a survey taken when Gulf, which is one of the companies in our wage survey group, received an increase. I understand from Mr. Pease you have the figures but you didn't take the actual survey. Mr. QUINN: I think Mr. Pease said he was aware of the increase. He didn't say he had the figures. Mr. REED: So we are asking for the information now . . . . We are asking for the information now pertaining to our employees' wages, of what position each group is in in relation to the average of the companies on the outside in the wage survey. This information we are requesting from you. We have not received it since last year. Mr. QUINN: You have the results of the last survey. Mr. REED: Then I would suggest you look at your contract because there has been a survey you should have taken. Mr. QUINN: What contract? We don't have a contract. We haven't had one for a year. Loftus, the Union's attorney, then stated that since a year had elapsed after the 1960 contract expired, if wage surveys had been taken during the no-contract period some employees might be entitled to wage increases. He pointed out that the Com- pany's proposal that there be no retroactive application of wage survey was unfair if during the no-contract period certain groups should have received increases as a result of "the usual wage survey purposes and procedures." Union President Reed referred to the increases granted as a result of wage survey procedures, after the 1960 contract had expired, and contended that a survey "should have been taken when Gulf received an increase." The following exchange then ensued: Mr. QUINN: I must rebut your statement that it should have been taken because there were serious questions about wage survey that came in our relationship at that time. Mr. REED: We are now requesting that a survey be taken of what effect, if any, the increase that Gulf received would have on our employees and that such information be given to this Union. Mr. QUINN: Let me make sure I understand what you are requesting, because I am confused here. Mr. REED: I am requesting that if Gulf received an increase in January, that you go out and take a survey of what effect that would have had on our employees in January, and if it would have meant an increase, we want the information. If it does mean an increase, we want our employees to get that increase retroactive to that date. We are asking for the information. Mr. QUINN: I understand your request, but I think it is well you understand that we do not have a survey at the moment. The parties then discussed the substitution of a survey company for the defunct Piels' Staten Island plant, and the following exchange took place: Mr. QUINN: My honest position is: You have made a request here. If you have a company [for substitution for Piels] to propose, I am quite happy to consider it. You have asked for certain information about wage survey and I will consider this request, if we understand exactly what you are asking for. Mr. REED: We are asking for the effect of the Gulf increase on our people. Mr. QUINN: Are you asking for an up-to-date survey? 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. REED : We also first want the results of a survey that will be taken as of the time Gulf received their increase. We also want an up-to-date survey that should have been taken in March. * * * * * * * Mr. QUINN : Piels is no longer here. That is recognized . Any figures we may develop as a result of my saying I will look into this thing will not include Piels because Piels is not here . . . The purpose of these figures which you are requesting, Bob, is simply to see what the significance of our proposal is on the wages of the employees in your unit. Mr. REED : Yes. We are saying that our employees were entitled to an increase in January when Gulf got their increase. They have been denied it, and we want the information . If the information does show they were entitled to it, that they will be paid retroactive to that date. Mr. QUINN: I will consider your request, Mr. Reed. When the parties met in a bargaining session on August 28 , 1963, Quinn referred to the fact that at the August 22 meeting the Union had proposed Piels of Brooklyn, Ballantines of Newark and Hoffman as a replacement survey company for Piels' Staten Island plant. He and Reed then had the following discussion: Mr. QUINN: In addition, you requested some wage survey information, and the purpose of the request for information concerning rates being paid by other companies was to evaluate what this would mean if these were included. As you know, we have not made a survey. Mr. REED: Are you making one now? Mr. QUINN: We are not making one at the present . . . . I am ready and prepared here to make available to you the best reconstruction that we can make of what the situation was back in March and- Mr. REED: Excuse me. We asked for when Gulf got an increase in January. Mr. QUINN: This problem that you touched on . . . is in a different atmos- phere for consideration. It is not a part of this discussion here, Bob .... I am willing to make available to you this March data, and Mr. Ashton has it, and upon your statement that you recognize that this is confidential information .. . he will make it available to you on the same basis which you have gotten wage survey data in the past .... Mr. REED: We won't go off this now because it is much too important for you to take very lightly what you are saying no to. We have requested informa- tion on our wage survey pertaining back to last January when Gulf got an increase . We asked for this because we feel that from that increase some of our employees in our bargaining unit were entitled to a wage increase .... Mr. QUINN: All right, Bob. Mr. REED: You have said no to that request. Mr. QUINN: You have stated to me an implication here which I did not read into your request of last week. Now let me say very clearly that I do not see where this has any bearing on the arrangements we make for a new contract. Mr. REED: It has all the bearing on it. * * * * * * * Mr. QUINN: I do not see where you need this information to evaluate- Mr. REED: We want not only the information but the increase for our people. Mr. QUINN: Bob, this is a matter which you have chosen to take up else- where ... I am considering your companies that you have proposed and I have given you our offer to make available to you the information whereby you can evaluate the effect of these companies that you have proposed. Mr. REED: That is right. And we are going to receive that. But also, on the other hand, you refused to give us this other information which you refused to give at the time one of the wage survey companies got an increase. You used your absolute right so our people would not get an increase. There was some further discussion during which Loftus stated that the Union's position was that if, "under the proper application of the wage survey" a group of employees would have been entitled to a wage increase in January 1963, "in such event they should get that increase retroactive because you have received the labor." Quinn recalled the differences as to the operation of the wage survey which were discussed in December 1962 and January 1963, and which led to the Company's decision, expressed in its letter of February 1, 1963, not "to put into effect any wage PROCTER & GAMBLE MFG. CO. 383 survey increases until the whole matter of wage survey is resolved through proper collective bargaining." Quinn repeated that he had "offered the March figures as best they can be reconstructed," and the following exchange then occurred: Mr. REED: Let me say for your information under our wage survey, Piels would have no effect on our employees until the semi-annual survey is taken in March. I want this understood, that even though they dropped out in January- Mr. QUINN: Not necessarily, Bob. Let me go at it this way. If you make a survey and if you put zero jobs in at a rate, you will still come out with zero. But this again is one of our points of difference. Mr. REED: If you will read your wage survey, you take a semi-annual sur- vey of all companies that are in the survey. You take your other surveys of those companies which get an increase. The Company goes out to that one plant-in this case it would have been Gulf. The Company goes to that one plant and gets their increase. Then they use those figures based on the other figures that you have taken in the survey. You don't go to every plant to see what details-in other words, if a man quit, did that affect your average by one mill or anything like that. Mr. PEASE: However, we do check when we know there has been a change. We check the other plants at the same time. Mr. REED: That's right. Mr. PEASE: In other words, we know that Piels was out. Mr. REED: I think, Mr. Quinn, the contract will explain it clearly. It states that every six months you make a survey of the base rates of all the companies in our survey, and that is done in March .... It also states that if requested by the Union, a survey shall be made more often but not more frequently than once every three months. We have requested the results of the Gulf increase. Therefore, we are saying a survey should have been made on that. We did not ask you for a survey of Piels Brothers. Therefore, that has to wait until your regular semi-annual survey. It has no bearing. When you take a survey on Gulf, you keep the rates that Piels had until the semi-annual survey shows they are no longer there. It's very clearly stated in our contract. Mr. QUINN: Bob, the reason I am tendering and making available to you now the March figures is because they do correspond to the period that we would normally make a semi-annual survey. Mr. REED: But we requested it for the one for Gulf. We requested that. I spoke to Mr. Pease on that. Mr. QUINN: In that whole period we got into this disagreement as to how wage survey should be applied. Mr. REED: But your statement just a few minutes ago said that Piels Brothers left at the same time. I am trying to state to you that under our contract Piels Brothers had no effect until the semi-annual survey would be made. Mr. QUINN: All right. Now, we are in contention- Mr. REED: We are in agreement on that. Mr. QUINN: I am not agreeing or disagreeing. I am simply saying we are in contention on application in many, many important issues of wage survey, and this problem arose in the early part of the year. Now, I am simply saying that at a point in time, March, when under normal- Mr. REED: Don't skip January. Mr. Quinn. Let's start with January. Mr. QUINN: What is magic about January. Mr. REED: In January there should have been an increase in the wage survey. Mr. QUINN: I don't know. Mr. REED: There should have been a survey taken. There should have been a survey taker] in January the same as taken in March. Let's take one after the other. Quinn and Loftus then had some discussion about whether the Union's proposal included retroactive application not only of any wage increase that might have resulted from the Gulf increase (on the assumption Piels' rates prior to its going out of business were included in such a calculation) but also the rates of a new company that might be agreed to as a replacement for Piels. Quinn pointed out that the Company's wage survey offer contemplated prospective application. He also expressed the view that "the differences of opinion and positions we have arising 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from: this January situation have no place in bargaining for a new contract"-for the reason that "the Union has taken up this matter elsewhere for resolution." 20 Loftus indicated that "anything the Union may have taken for consideration in any other place is a proper subject for collective bargaining here," and expressed the opinion that the Company, by not making a survey in January as normally would have been done if requested by the Union, had in effect unilaterally changed terms and condi- tions of employment. He urged that all concerned "forget our personal feelings" and approach the problem they were discussing objectively. Thereafter the following exchange occurred: Mr. MCCULLOUGH (a union committeeman): You say you are going to afford us the results of the survey which was taken in March? Mr. QUINN: I didn't say that, Ed. I said we have made every effort to recon- struct figures that would have existed in March, and we will make them avail- able to you. In fact, we have those figures now, Ed. Mr. MCCULLOUGH: This is without application of the Gulf increase previous to this date? Mr. QUINN: Let me explain. I think the question will answer itself. It will show what our rates were at that point in time and will show what the com- panies in the community, what their average rates were at that time. Mr. REED: It will include the increase Gulf has? Mr. QUINN: Anything that has happened up to Gulf will be reflected up until that time, surely. I am not trying to be tricky in my answer: Mr. REED: So you have the figures for the Gulf increase in your March survey. * * * * * * * Mr. QUINN: Well, sure. It reflects anything that has happened since the last time. Mr. REED: All right. So we can't buy where you say you don't have the information on the Gulf increase. Mr. QUINN: Well, if you take it in that light, I won't argue with you over that statement. I said at the outset, Bob, this is what the wages were in March. Mr. REED: Right. And this includes what the wages were back in January. Mr. QUINN: We are playing on words. Mr. LOFTUS: Anyway, the information that you have is now available under the ordinary conditions. Mr. REED: Not January. He refuses to give us for January, and let the record show this. Mr. QUINN: Bob, let me modify this again, if you read it in that light. You have asked for something a little different, because here again this is a state- ment of wages in March. You have asked for something which is different from this, Bob. Mr. REED: We asked for the one in March and the one in January. Mr. QUINN: And I am not prepared at this point to give you what you call would be the proper figures for January. Mr. REED: All right. So be it .... We requested it and you have refused it. Mr. QUINN: I don't know why you want to make me refuse so quickly. Mr. REED: I have talked to you for a long time to try to get this information. Mr. QUINN: There again, as I said before- Mr. LOFTUS: Mr. Quinn, will you consider your position with reference to to January and let's go on? Mr. QUINN: That's what I am trying to get at, if Mr. Reed will just leave me long enough to put in a few words uninterrupted. I will consider that in the light that you have delineated, Mr. Loftus .... You have made an effort at clarification as to what you want to use it for, and I'm not agreeing right at this moment I'll give it to you. On the other hand, in the light of what you have said, I think I would be a little bit foolish to summarily decline your request, if you get my meaning there. x This had reference to the unfair labor practice charge filed by the Union on March 4, 1963, which included the allegation that about February 1963 the Company, for discrimina- tory reasons, "failed and refused to put into effect a wage increase which was due to the emulorees." PROCTER & GAMBLE MFG. CO. 385 Near the end of the August 28 meeting it was agreed that, prior to the next meeting on September 5, two members of the Union's executive committee would meet with Ashton, Pease's assistant, to obtain wage-survey information. At some date between August 28 and September 10, 1963, the Union met with Ashton to obtain the wage-survey information it had requested. At the Septem- ber 10 bargaining session, as the parties began to discuss the wage and wage-survey provisions of the Company's September 5 package proposal, Reed stated that the Union could not agree with the first item on this topic (that the "wage rate schedule as of the date of signing of new Agreement will be the same minimum and maximum rates now being paid"), "until we know the results of our request we had asked for, the results of when Gulf got their increase." The following exchange then took place: Mr. QUINN: I think you have been given information, have you not? Bob [Ashton], have you not discussed with these gentlemen the wage survey? Mr. ASHTON: Yes. Mr. QUINN: I was under the impression that you had sufficient information to evaluate what our next portion of this thing [the offer to include a brewery on a factored basis in the wage survey and on the basis of a survey taken after the signing of the new contract make any upward wage adjustments prospectively thereafter] would mean, and in fact what your- Mr. REED: No, I don't believe so, Mr. Quinn. We asked for the rates at the time that Gulf got their increase. On the record [of the negotiations] you said we would not get that but you would be willing to give us the rates of the March survey. I believe when our people went to see you, you agreed to give both. Mr. ASHTON: Yes. Mr. REED: But on the record you did not agree to give it. Mr. QUINN: The fact is, you have the information. That's the point. Mr. REED: No, we don't have it. You did not give the information. We want the information of Gulf with Piels in the survey. Our position is that Piels is not removed from the survey until the semi-annual survey. Have you given us the figures with Piels in the survey? Mr. ASHTON: Not exactly as you described. Mr. REED: . The information we wanted on wages was based on Gulf including Piels in it. That information we haven't gotten. We are asking: Would you please give it to us? Mr. QUINN: I just don't-this seems to me to be an artificial request simply because there was no Piels Brewing Company at that time. Mr. REED: There was no survey being taken of Piels because, under our agreements that we are abiding under wage survey, the effect of Piels wouldn't be felt until the semi-annual survey. The only company that should have been surveyed was the one that got the increase, which was Gulf. Then you would determine as you have always done in the past, what effect would Gulf have, and you would use the same averages that you used from these other companies in the last previous survey. That has always been done that way. Mr. QUINN: There again, you are getting into one of the areas where we are in disagreement. Mr. REED: All I am saying then, we haven't received the information we asked for. Mr. QUINN: All I am saying to you, the information which you received plus that which we gave you over and above at the time of the meeting [pre- sumably the meeting between August 28 and September 10], upon reflection- and I told Bob [Ashton] to go ahead and make available to your representa- tives on the accepted basis, some other data which he did tender. Now, I don't see where this haggling about Piels and all that business gets you any- where down the road, frankly. Mr. REED: That's what our request was. We want the effect of the Gulf increase on our wage survey including Piels. You just say yes, we can have it or no, we can't. * * * * * * * Mr. QUINN: You have enough information that you have been given to evaluate the full extent of our offer. 257-551-67-voL 16O-2G 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. REED : No, sir, we don't. Mr. QUINN : I disagree with you. Mr. REED : You may disagree, and this is why in good faith we are asking for that information, so we can evaluate it. Mr. QUINN : I don't see where it adds a thing to what you already have. Piels dropped out of existence. The parties then entered into a discussion of a proposed substitute company to be placed in the wage survey, and the "request" for a calculation of wage rate averages as of January 1963, on the basis of the Gulf increase and utilizing Piels' rates as they existed prior to going out of business , was not thereafter repeated.21 b. The September request Paragraphs 27 and 28 of the complaint alleges that the Company, on Septem- ber 10, 1963, refused the Union's request for wage survey data "which would show the differences in wages which would be received by Respondent's employees . if wage averages of a new company to be included in said plan were not factored." The evidence relating to this request is limited to the transcript of negotiations. As noted above, on September 5, 1963, the Company presented a complete writ- ten offer, which included a proposal to substitute in the wage survey one of three breweries in place of Piels' Staten Island, but with its wage rates "to be factored in order to account for a workweek of less than 40 hours." At the September 10 meeting, the Union objected to factoring the rates of the new company, although union representatives were familiar with the factoring method 22 Quinn and Reed had the following exchange regarding this matter: Mr. QUINN: . . . I am simply telling you . . . that I am putting a brewery in here simply because it has been requested and it looks like there is a pos- sibility of getting further down the road toward an agreement if we include a brewery, and therefore on that basis I have included it ... . Mr. REED : In other words, you are going to substitute them under the same conditions that Piel 's was in? [Piel's Staten Island plant rates had not been factored while in the survey.] Mr. QUINN: No, we are not . . The brewing industry works on a basis of a thirty-five hour week, I believe. Now, with that being the situation, as we have in the past, we told you when we brought those in we would factor them to a forty-hour basis. So that is the basis clearly delineated here that they would be factored to account for the difference in work week. That is the basis .... Mr. REED : . . . In other words, as far as the substitution let's say, a brew- ery for a brewery, we're with it a hundred per cent. But then we get down to your details where you wish to factor because of the people working less than forty hours. That is where we disagree, because this would mean , as our news- paper showed, a man getting $4 an hour and our people enjoying that $4 average at Port Ivory, that under your proposal they would not enjoy the $4 average and they would only enjoy the $3.50 average. Mr. QUINN: They would then enjoy the ratio of thirty-five to forty, what- ever that works out. After further discussion of factoring and wage-survey objectives , including the concept that survey and employee wage rates could move in either direction, Reed at the opening of the afternoon session raised the question of what the effect on 21 At the August 12, 1964, bargaining meeting, the Union asked whether the Company would be willing to pay backpay to those wage -survey groups that would have gotten an increase in January 1963 based on a survey calculation following the Gulf increase and including therein the rates of Piels' Staten Island plant even though Piels had ceased business. The Company agreed to consider this, and at the August 17, 1964, meeting Quinn agreed to this request , provided "we get our contract signed by this time next week." This meant that, effective January 7, 1963, the following retroactive increases would have been granted : male production, 21/2 cents ; watchmen, 21/2 cents ; and firemen 5 cents. The Union at this meeting rejected the Company 's entire package offer, including this retroactive proposal. The Budweiser Company had been a wage survey company for some time , and when it was included in the survey the Company and the Union agreed that its rates would be factored to adjust for Budweiser's 35-hour workweek . Thus to obtain comparability, in the case of a company working a 35-hour workweek but with a 40-hour base pay, its rates would be factored, for P & G wage survey purposes , by 35/40s PROCTER & GAMBLE MFG. CO. 387 the wage survey averages would be with the new company coming into the survey with its rates factored . Reed acknowledged awareness of a meeting between Ashton for the Company and a representative of the Union (apparently Fred Price, the Union's treasurer), at which Ashton had given the union figures on how the wage -survey would look with Piels out and with one of the three proposed breweries in the survey on a factored basis. For this purpose , the rates of Budweiser, a sur- vey company, were used, since the parties did not know the exact rates of any of the three proposed breweries; the assumption was that the rates were similar, as all were breweries. Thus the rates of Budweiser were used twice in this calculation, ,on a factored basis. The following then ensued: Mr. REED: . What I'm saying, we would like to know what would be the difference if you are figuring on true hourly rates and if you are factoring it. In other words, we know if a man is getting paid $4 an hour and working thirty-five, instead of using the average of $4 you will use $3.50. But what I mean is: What will be the effect on each group? In other words, this is the information we would like to have to consider this. As I say, our feeling is that Piel's in Brooklyn would take the place of Piel's in Staten Island and it would have been status quo. Just what difference would it make to our employees per hour by having it factored? That's all we want. Mr. QUINN: I think this is subject to relatively quick calculation. Mr. ASHTON: We can work something out . . Mr. QUINN: What you are asking is just what is the difference between the two methods of inclusion. Mr. REED: Right. In other words, if we know the wages are roughly the same in all the breweries, so what we're saying is if Piel's never left Staten Island, their pay would not be factored. What would the average of the out- side community be then compared to the fact that Piel's has now left the survey and you wish to put a company in with their hours being factored . . Mr. QUINN: Well, Bob, I still think it is important that you understand that our proposal at this time is that it would be a factored basis. Now, as to the difference of basis, I don't know . . . just what you have in mind by think- ing in terms of bringing them in on a straight thirty-five hour basis, into the survey. I have indicated to you that this would not at this point be satisfac- tory to the Company. Mr. REED: That's true. But . . . if the difference of being factored or not factored is only one cent an hour, certainly that's going to be a determining factor in our decision . . Let's say they go back and they find it's going to make a difference of . . . ten cents an hour. That will have a bearing on our bargaining position here. Mr. QUINN: Am I correct or incorrect in assuming that there is enough infor- mation in the hands of the Union for you to determine what the value of our present offer is? Mr. REED: Not for the question I asked. Mr. PEASE: The present offer. You have the information on the present offer, Bob. Mr. REED: Oh, yes, that we have, yes. But now we want- Mr. QUINN: I would say then that you have the information if you put it on a non-factored basis of evaluating what it would be worth on-in other words, we have given you the information that you need to evaluate what our offer is worth. Mr. Reed: This proposal, yes. Mr. QUINN: Therefore, it would seem to me that you already have what you are asking for, Bob. Mr. REED : No. We want to know what it would be on a non -factored basis. Mr. QUINN: Gentlemen, . you have information to evaluate what this thing means and I have agreed to meet with you on the basis that we would continue to intelligently discuss and explain what our offer is . Now, I am not willing at this point . to include a brewery on anything but a fac- tored basis, and I just see where at this point nothing constructive here will be served. Mr. REED: You don't wish to supply us with the information? Say so then. Mr. QUINN: All right, so be it. I don't choose to supply that to you at this time. Mr. REED: All right. Let the record show we asked for it. 388 DECISIONS OF ,NATIONAL LABOR RELATIONS BOARD Mr. QUINN: I think truly that's beside the point. You have enough infor- mation to evaluate my offer. Mr. REED: That's right. We understand what your offer is, but we wish to know what difference this will make if Piel's were still in the survey, because this is a question we are going to get hit with by the people: By getting a company substituted for Piel's on a factored basis, what does that mean to me as a mechanic in cents per hour, let's say? ... We are asking for that information. Following the foregoing exchange, Angelo Sanquini, a member of the Union's executive committee, asked why the Company was offering to include in the sur- vey a brewery, perhaps Piels of Brooklyn, on a factored basis in place of one (Piels Staten Island) that had been in on an unfactored basis, and expressed the view that for no reason the Company was proposing "taking a cut [in survey aver- ages] with the same company." Quinn answered that Piels Staten Island had ceased to exist and that substituting Piels Brooklyn was "stretching the point quite a bit to include [it] in this community area." The September 10 discussion of wage survey ended with the following: Mr. QUINN: . Gentlemen, is there any . . . misunderstanding about what our proposal is as it now stands? Mr. REED: There never was, which was why we put a simple request in for additional information, and you refused it. Mr. QUINN: I don't think that information is [needed] in order to evaluate the meaning and significance of this proposal .. . . Mr. REED: We will attempt, in our own way, to get the information you have refused us so we can see just what effect this is going to have on our people. Mr. QUINN: Bob, you don't need any more information. Mr. REED: You let us determine what information we want. Mr. QUINN: You don't need any more. Mr. REED: You let us determine it. We will get whatever information we think is necessary. Mr. QUINN: You may get it in any way you want to which is proper, but my point is that to evaluate the meaning of our offer- Mr. REED: As we have said to you at least eight times already, we under- stand your offer. Mr. QUINN: All right. And- Mr. REED: All right, Mr. Quinn? Do you understand that we understand your offer? Mr. QUINN: After you have enough information to evaluate its value- Mr. REED: We still want to obtain additional information so we can tell how much our employees are being affected on their hourly average by having- a new brewery factored. Mr. QUINN: Bob, why you continue to make that statement, I don't know. C. Conclusions regarding the information requests Upon analysis, I find no merit in the General Counsel's contentions that in August and September 1963 the Company refused to furnish the Union with wage-survey data in its possession and to which the Union was entitled. What the Union was requesting the Company to do was to make certain hypothetical wage- survey calculations on the basis of data that had already been furnished to the Union or to which it had as ready access as the Company. The first request, that the Company calculate a wage survey as of January 1963, with the nonexistent rates of the Piels Staten Island plant showing and utilizing the then wage rate averages of other companies in the wage survey, including the Gulf rates with the January increase granted by that company, was nothing more than an effort to have the Company compute a set of simulated wage rate averages based upon the Union's erroneous theory that the rates of the defunct Piels' plant had to be included at least until the time a semiannual survey would have been taken in March 1963. The second request, that the Company produce a calculation showing the difference in a survey calculated with the rates of a proposeed brewery fac- tored and not factored, was equally spurious and could as readily have been done by the Union with the raw data available to it. The Union, in January 1963, had been given access to the wage survey data which showed the effect on the survey averages resulting from the removal of Piels._ PROCTER & GAMBLE MFG. CO. 389 At the August 28 meeting, after Reed's request had been discussed, Quinn took it under consideration, stating "I would be a little foolish to summarily decline your request"; thereafter, arrangements were made for representatives of the Union to meet with Ashton to obtain wage survey information. Such a meeting was held, and at the September 10 bargaining session Reed acknowledged that the Union had received from Ashton "the rates of the March survey" and also "the rates at the time Gulf got their increase." When Quinn then remarked that the Union had received all the information it needed, Reed said: No, we don't have it. You did not give the information. We want the infor- mation of Gulf with Piel's in the survey. Our position is that Piel's is not removed from the survey until the semi-annual survey. Thus it is apparent that Reed was still making the argument that Piels should remain in the survey after January and at least until March and that the Com- pany should make a calculation based on this point of view. But it is plain that the Union, on or before September 10, 1963, had the information regarding Piels' wage rate averages as of the date it ceased to operate on Staten Island, and also the wage rate averages of Gulf showing the January.1963 increases and of the other companies in the survey. Hence it had the raw data, and could have made the arithmetical calculation just as readily as the Company. Understandably, Quinn characterized Reed's continued pressing for "this information" as an "artificial request" and unnecessary for the purpose of evaluating the Company's offer. The Union also had the basic data to make the calculations showing the effect of the wage rate averages of a brewery being included in the survey on both a factored and unfactored basis. All that was necessary for the Union to do with the information supplied by the Company, in order to obtain a wage survey in the form it desired, was to take the Budweiser rates by classification and unfactor them. Thus, instead of counting factored Budweiser rates twice (as had been done by the Company in the meeting between Ashton and union representatives), the factored Budweiser rates would be counted once and the unfactored Budweiser rates would be counted once. This would have given the Union precisely what Reed sought-the effect of placing in the survey a brewery without its rates being factored. Since the Union had the raw data and understood the mathematical pro- cedure of factoring and unfactoring, it plainly was not asking the Company for information not in its possession but rather requesting the Company to make cer- tain computations on the basis of data equally available to the Union. I conclude, therefore, that these information request allegations of the complaint are unsupported by the evidence 23 4. Limitation on meetings between union executive committee members-February 1963 The 1960 contract between the parties contained the following provision (art. XVI., sec. 2) relating to the investigation of grievances: It is agreed that each steward and each member of the Union Executive Com- mittee shall be permitted to leave his work during working hours (with per- mission of his department manager or foreman which shall be granted as soon as reasonably possible) to perform his duties in connection with grievance investigation and procedure; however, the steward will limit his investigation as A further allegation of the complaint relating to requests for data is contained in paragraphs 23 and 24, where it is alleged that on November 1, 1962, the Company refused to furnish the Union with "data relating to the percentage attributable to wages in the total cost of manufacture of certain specific products produced by Respondent at the Port Ivory Plant." The evidence regarding this is limited to approximately five pages of the November 1, 1962, bargaining session The pertinent exchange between the Union and the Company, on which this allegation is based, is reproduced above (paragraph 23) Suffice it to say that the evidence falls far short of supporting this allegation of the argument made by the General Counsel that the answer given by the Company to (Reed's generalized question as to what "percentage right now is wages compared to your over-all-cost"-that the "relative percent of total cost" that wages represented in the cost of manufacture of any particular product was irrelevant because the Company was not pleading "inability to pay"-is "tantamount to pleading inability to pay," thus making it "incumbent upon the Company to substantiate its contention." 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to grievances arising only from the employees he represents and may be accompanied in such investigation by no more than one member of the Execu- tive Committee at any one time. One of the contract proposals made by the Company was that the parties agree that the foregoing language did not authorize-in fact proscribed-members of the Union's executive committee to meet with each other during working hours in the investigation of grievances. The Company's proposal was discussed at the May 22, June 12, and August 23, 1962, meetings, with the parties not reaching agreement. At the January 11, 1963, negotiation meeting, Quinn for the Company emphasized that the grievance investigation procedure must conform precisely to the limitations expressed in article XVI of the 1960 contract (as the Company con- strued it), whereas Reed for the Union stated that the Union would continue to insist, until it agreed to the Company's construction of the grievance investigation article, upon following the procedure that was then the practice. In a letter of February 25, 1963, in which the Company said it was recognizing the Union on a provisional basis, Quinn additionally stated: There is also no provision for releasing an executive committeeman during working hours to investigate a grievance with another executive committee- man. Any violation of the rule continues to subject the violator to disciplinary action up to and including termination. On March 18, 1963, the Union replied as follows to the above: This is something you are currently attempting to achieve through bargaining, and we consider it decidedly unfair of you to try to get the same thing by this other means. After February 25, 1963, the Company, pursuant to the policy announced in its letter, refused to release a member of the executive committee from work to, meet with another member of the excutive committee. However, the subject con- tinued to be discussed in subsequent bargaining sessions, but the parties remained in disagreement until at the August 12, 1964, meeting the Company agreed that more than one member of the executive committee could investigate grievances or potential grievances, together with the steward and the affected employee, pro- vided the procedure was not abused. This aspect of the contract negotiations had a substantial background antedating the 1962 negotiations. In March 1961 the Company instituted a release slip pro- cedure whereby release forms were made out for each instance that an official of the Union was granted time off to attend to union business, indicating the purpose of the release as well as the destination of the person released. The Union took exception to this procedure and promptly filed a grievance, alleging that the pro- cedure was violative of the contract and past practices and "prevented union officials from carrying out their normal duties." The Union also filed unfair labor practice charges alleging that the new rules prevented its officials from properly processing grievances and otherwise representing the employees; these charges were dismissed by the Regional Director, whose action was sustained on appeal by the General Counsel on October 9, 1961. The controversy was submitted to a board of arbitration and on June 18, 1962, Arbitrator Wolff issued his decision, generally holding that the Company was not in violation of the contract in instituting the release procedure although sustaining the grievance with regard to certain aspects of the Company's implementation and administration of the release procedure. In his decision, Arbitrator Wolff noted that in the period from March 1961 to early February 1962 a total of 1,326 passes were issued to different members of the Union's executive committee, and that President Reed from July through December 1961 "was granted 378 passes, of which 192 were to visit other Execu- tive Committee members, 106 to see stewards and other Union members, and 80, to visit with members of management." A compilation of release slips issued to Reed between September 1962 and February 25, 1963, introduced in evidence, shows that he was given 347 passes to meet with a named member of the execu- tive committee and 141 passes to see shop stewards, employees, or a member of management. In the 6-month period following the Company's ban on visitations between members of the Union's executive committee-February 26 to Septem- ber 1, 1963-Reed was issued a total of 300 passes to see shop stewards, employ- ees, or management. The complaint alleges (paragraph 21) that the Respondent, by "prohibiting time off for members of the Union's Executive Committee to meet with other PROCTER & GAMBLE MFG. CO. 391 members of the Union's Executive Committee for the purpose of investigating grievances," unilaterally changed the established grievance investigation procedure without affording the Union adequate opportunity to negotiate and bargain about the changes, thereby independently violating Section 8(a)(1) and (5). The Re- spondent contends that prior to the limitation announced in the letter of Febru- ary 25, 1963, the parties had bargained about the matter and had reached an impasse on this issue as well as on the entire negotiations. Therefore, Respondent asserts, its action was justified. While I find that the Respondent did in fact change the grievance investigation procedure by its letter of February 25, 1963, and by its action pursuant thereto in refusing thereafter to release members of the Union's executive committee to meet with each other, contrary to the practice followed for approximately 2 years theretofore, the question whether it was free to make this change, which had been discussed at length in negotiations in 1962, depends upon the existence or non-existence of a deadlock in the contract negotiations. Since this particular issue is integrally related to the overall issue of good-faith bargaining, I will defer passing upon it until I reach this basic question later in this Decision. 5. The "Dividend Day" boycott and the ban on distribution of union literature For many years the Company had sponsored at Port Ivory a semiannual cele- bration known as Dividend Day. At its January 1963 regular meeting, the Union voted to boycott the next such function as a protest against the Company's con- duct of bargaining negotiations. The March union meeting reaffirmed the earlier boycott decision. The Company learned of the proposed boycott from bulletins issued by the Union at the time the votes were taken, and Union President Reed in late January personally advised Industrial Relations Manager Pease of the Union's action. On March 15, 1953, Division Manager Quinn sent a letter to the homes of employees announcing that a Dividend Day dinner dance would be held on April 20, and that Company President Morgens would address the gathering. Enclosed with the letter was an information sheet and a response card, which had provision for checking whether the employee planned to attend with one guest or alone, or would be unable to attend. Provision was made for signature, and at the bottom of the card the following appeared: "Return this card to your man- ager by March 29th." This was the first time return cards were requested; Pease testified that the reason therefor was that the Company had to guarantee a number of guests to the hotel and, in view of the Union's announced boycott, wished to obtain an accurate estimate of expected attendance.24 On April 2, 1963, the Company issued a bulletin stating that in promoting the boycott "the Union officers . are asking you to oppose success and profits and profit sharing" and characterized the proposed boycott as "just another example of immature and irresponsible Union leadership." The Union replied on April 5, reminding employees that the decision to boycott "is the official expression of wishes of the majority," accused the Company of "trying to pressure guests to come," and urged employees not to be "bulldozed" into attending. The Company answered on April 10, stating it did "not want anyone to think he is being 'bull- dozed' . . . into going to Dividend Day," as alleged by the Union. In a letter sent to employees' homes and addressed to "Dear Member," the Union's executive committee on April 16 wrote that the boycott was official union action, binding upon "every officer and every member of the Union." The con- cluding paragraph read as follows: A scab is a working man who refuses to join with his fellow workers in a Union action. The boycott is a Union action. It is not the act of a group or faction within the Union; it is the legal and authorized expression of the will of the employees through the Union. The label of scab is an unpleasant one which endures for years. We have a man working for Port Ivory now who earned the label scab over twenty years ago in the shipyards, and to his ever- lasting sorrow, he still wears it. Don't be a scab. Don't refuse to join your "As the March 29 deadline for returning the response cards approached, some depart- ment managers questioned employees as to their intentions regarding attending the cele- bration and asked that employees fill out the cards. There is no evidence, however, that any reprisals were threatened for not attending or refusing to return the cards. 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fellow workers in defense of your own job. You may get a dinner and a chance to listen to Mr. Morgens , who would not listen to you, but the dinner will soon be gone; only the label scab will live on. The Executive Committee On April 17, 1963, Division Manager Quinn wrote jointly to each member of the Union's executive committee: Your letter sent earlier this week threatened employees with use of scurrilous language such as "Scab." This threat and others which you made could inflame feelings and jeopardize the orderly conduct of employees in this Divi- sion. In accordance with existing rules, if you or any other employee uses name-calling , insulting or inflammatory terms against another employee, as you threatened to do in your letter, such violations will be subject to discipline up to and including termination. All employees will be advised of this communication. Copies of the above letter were posted on company bulletin boards. On April 17, before receiving his copy of Quinn's letter of the same date, Henry Nerlino, a member of the Union's executive committee, was called into the office of his plant manager, Niles Millsap. Millsap asked Nerlino whether he was the author of the April 16 letter issued by the executive committee, to which Nerlino, as he testified without contradiction, replied that "I didn' think it was his business." Millsap then asked whether Nerlino was responsible for the letter, and Nerlino replied that as a member of the executive committee he was responsible. William Rogers, then a member of the executive committee and a candidate for the office of vice president of the Union on the same slate with President Reed, was ques- tioned by Harold Jensen, manager of the soap plant, about the preparation of the Union's letter of April 16. Jensen asked whether Rogers "was aware of the union bulletin coming out" on April 16 and whether Rogers was the person who left the plant to obtain the supply of printed letters from the printer. Rogers answered both questions in the affirmative. Jensen then asked whether Rogers was respon- sible for the writing of the letter; Rogers answered that he felt it was immaterial to Jensen who wrote the document, that the executive committee was responsible for union publications. Thereupon Rogers was excused. Union President Reed wrote to Quinn on April 18, on behalf of the Union's -executive committee, quoting in full the "scab " paragraph from the April 16 letter, and stating: Your letter, dated April 17, 1963, directed to the members of the Executive Committee is an unjustified threat against the members of the Executive Com- mittee and certainly clearly indicates an incorrect reading of the paragraph quoted. The paragraph quoted indicated no threats or action in any manner by the members of the Executive Committee concerning any actions of the employees. The paragraph indicated by example what the fact is, namely that when an employee does something contrary to the interests of his Union that action of his, regardless of what the members of the Union do, remains with him for all time. His fellow workers cannot erase from their minds their thinking of his action, regardless of what we may do. We certainly, under the freedom of the press and the right of free speech granted to us under law, have the right and the obligation to indicate what in our opinion happens to those who act contrary to the interests of the group to which they belong. Your implication that there were any threats involved in the letter is abso- lutely incorrect, and your statement that you can control the members of the Executive Committee at all times no matter where they are is not justified either by law or otherwise . I hope that you will reexamine your letter and in the interests of fair play restate your position to comply with the facts of the case. The letter of April 18 was distributed to employees. Also on April 18 the Union issued a bulletin containing a reprint of an editorial from another union's paper on "Boulewareism," and in a note the Union stated "P & G's bargaining is the Quinntessence [sic] of Boulewareism"; the bulletin also contained several cartoons depicting the Company as pressuring employees to attend Dividend Day. PROCTER & GAMBLE MFG. CO. 393 The bulletin concluded with this item under the black-lettered heading "SCAB": Scab-The American College Dictionary defines scab as a working man who refuses to join with his fellow workers in a Union action. The Executive Committee used this definition in its letter to its members. It made no threats. The Executive Committee does not think threats are called for as we are sure that when the chips are down, no Port Ivory employee is going to attend the dinner. We don't believe that any worker could participate in a Company frolic while his fellow workers are outside boycotting it in defense of their jobs and working conditions. If an employee should attend, there are undoubtedly those who will call them scabs but we are sure that the real damage from being a scab will come from within. We are sure that a man being called scab by his conscience suf- fers more from that than what anyone else can call him. Industrial Relations Manager Pease testified that Reed had told him, after the Union's boycott vote, that the Union was considering picketing the hotel where the Dividend Day dance was to be held; however, there was no picketing. Pease also related that his attention had been called to the fact that the term "scab" was being "bandied about" in the plant and that there was talk that those employ- ees who attended "would be put in coventry," i.e., given the "silent treatment." According to Pease, he discussed these matters with Division Manager Quinn when he felt that the situation was "getting out of hand somewhat in the factory." Following the Union's internal election on May 15, 1963, several employees, including one Charles Garrod, protested the election by complaining to the Bureau of Labor Management Reports. On May 22, the Union distributed a bulletin, which reprinted and commented upon a letter Reed had received from the secretary of the union at the Colgate-Palmolive Company congratulating Reed upon being reelected to office and stating that the defeated candidates, "as true trade union- ists," would support and cooperate with the leadership of the Union. The bulletin then continued: In contrast to good sound labor unionism, we have Charlie Garrod. Having failed in his attempts to disrupt the Union through the election, this cancer- ous growth on the backs of Port Ivory employees is not satisfied that the will of the majority has been unmistakably shown by the elections. He con- tinues to play the Company's game and destroy the Union. He is often seen in the Company of Al Campbell. Why? He is only an employee like you; do you have an awful lot to say to Al Cambell, Buddy Boy Campbell? His latest efforts have been to get an employee to lodge a complaint with the NLRB about the elections. So far no sucker has bitten. What is Garrod's game? Stinemire [Reed's opponent ] came to Bob Reed and shook hands and repeated his feelings that now that the contest is over, every employee should get behind the new committee. Is it a personal axe or the Company's axe that Gar- rod is grinding? Why does he want to harass and destroy the Union? If he is such a stalwart unionist, why is it that in all his conniving, he does not come out for a position of leadership himself? In the last election Garrod jockied some good men to run for leadership, but he himself cautiously stayed in the background. In his present manipulations he is continuing his policy of "you do it, I'll stay in the background." This is not the first time Garrod has done this. Why is it that he is competent to pick those who should run for office but he himself is not competent to run? If Charles Garrod, Cost Dept. Clerk, is not an agent for the Company, recruiting dupes from honest employees to do his dirty work, he is surely doing the Company a service in trying to harrass [sic] and destroy the Union. On the morning of May 23 Garrod spoke to Raymond Coady, who had been vice president of the Union until he resigned in March 1963. Garrod and Coady worked in the same office. When Coady declined to answer Garrod's inquiry whether he (Coady) had written the above-quoted item in the bulletin, Garrod accused Coady of being "yellow." Thereupon a scuffle occurred between them in the office, in the presence of some 8 to 15 employees and several members of management, in the course of which Coady suffered a bloody nose and Garrod a slight cut. The two, 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were separated by persons present. Industrial Relations Manager Pease arrived in a few moments and caused the two to be taken to the first aid room, where they almost came to blows again but were prevented by Pease and the doctor. Later, on May 27, both Coady and Garrod were disciplined by being suspended-Coady for 4 weeks and Garrod for 1 week.25 On May 24, 1963 Division Manager Quinn wrote Union President Reed the follow- ing letter, which was posted on the company bulletin boards: Despite our letter of April 17, 1963, to the Union Executive Committee there has been distribution of scurrilous and provocative literature on Company property, which can and has jeopardized the orderly conduct of employees in this Division. Under the circumstances it is necessary to notify the Union Executive Com- mittee, and all other employees that further distribution of Union literature on Company premises is forbidden until we are satisfied that disturbances will not recur. The ban on distribution of literature continued until June 27, 1963. Coady returned to work on June 21, and Garrod had returned earlier; after a week passed without further incident Pease and Quinn decided that the ban could be lifted. Accordingly, on June 27 Quinn wrote to Reed in part as follows: It is now believed that the current situation in the plant will permit the dis- tribution of Union literature on plant premises. This shall not be construed, of course, to permit distribution of scurrilous and provocative literature at any time. I intend to post copies of this letter in order that all employees are so informed. While the ban was in effect, Reed requested permission of Quinn to distribute union literature in the plant cafeteria and to use union bulletin boards. These requests were refused. Union Vice President-elect Rogers was also refused permis- sion by his foreman to distribute union literature during his lunch hour or relief period. The Union did distribute its literature during this period at the plant gates on four occasions 26 The complaint alleges (paragraphs 31 and 34) that by Quinn's letter of April 17, 1963, to members of the Union's executive committee, the Respondent "threatened its employees with discharge and other forms of discipline unless they ceased engag- ing in concerted activities." In his brief, General Counsel argues that the Company illegally interrogated employees about the preparation and distribution of the Union's April 16 "scab" leaflet, and that the Union's letter "was a protected con- certed activity" and the use of the word "scab" therein did not warrant the Com- pany's threat of discipline . I find no merit in this contention. Granted that the pro- posed boycott was a protected activity, the Company's action in no way threatened employees with discipline for participating therein. Consistent with the existing rule against the use of "abusive or threatening language," the Company's letter warned that "use of scurrilous language such as `Scab' " or the use of "name-calling, insulting or inflamatory [sic] terms against another employee" was violative of the plant rule and subject to discipline. The Company' s concern that "the orderly con- duct of employees" might be jeopardized by the use of villifying language was not, in my opinion, misplaced or fanciful, as plainly appears from the subsequent Coady- Garrod episode. I am not aware of any rule that immunizes employees who refer to other employees as "scabs" from the enforcement of a plant rule against the use 25 Coady's discipline was alleged as a violation of the Act in the third and fourth amended charges filed by the Union on August 21 and 27, 1963 ; no allegation with respect to the discipline accorded Coady is in the General Counsel's complaint. 24 The General Counsel suggests that the Company timed the lifting of the ban on dis- tribution of literature to occur on June 27, just before the usual 2-week summer shutdown period beginning on June 29, so as to extend the ban as a practical matter, for an addi- tional 2 weeks This suggested inference, wholly speculative, is rejected. There is no evidence that the Union in 1963, or in prior years, intended to distribute or had distributed literature in the plant during the customary summer shutdown Quinn's letter of May 24 suspended distribution of "Union literature on Company premises . . . until we are satis- fied that disturbance will not recur " I accept Pease's testimony that when no incident had occurred in the week after the two combatants (Coady and Garrod) had returned to work, Quinn and Pease , consistent with Quinn 's letter of May 24, concluded that the ban should be lifted. PROCTER & GAMBLE MFG. CO. 395 .of abusive or threatening language 27 Nor do I find anything illegal in the inquiries made by supervision of Nerlino and Rogers, two members of the Union's executive .,committee, regarding the preparation and distribution of the "scab" leaflet. Paragraphs 32 and 34 of the complaint allege that the ban on distribution of union literature on company premises, between May 24 and June 27, 1963, was violative of Section 8(a)(1) of the Act. Without repeating the facts that caused the -Company to impose the temporary ban, the fight that broke out during working hours between Coady and Garrod on May 23 resulted from the union bulletin dis- tributed that day or the day before in which Garrod was called a " cancerous growth on the backs of Port Ivory employees," accused of "conniving," and, if "not an agent for the Company, recruiting dupes from honest employees to do his dirty work," then "surely [Garrod was] doing the Company a service in trying to har- rass and destroy the Union." I find, under the facts here existing, that the Com- pany's temporary ban on the distribution of literature was valid as necessary to maintain discipline within the plant.28 6. The operation of the "surplus pool" program For many years the Company has had a policy, not limited to the Port Ivory factory, of guaranteeing 48 weeks of work per year to hourly-paid employees with over 2 years of continuous service with the Company. During the latter part of 1961 it became evident that some Port Ivory employees entitled under this policy to guaranteed regular employment were becoming surplus in their departments. In August 1961, when this problem was being considered within management, it was envisaged that on January 1, 1962, the number of surplus male hourly production 'employees "will range between 27 and 40," and that on July 1, 1963, the "surplus hourly production men will number about 37 . or about 80," depending upon whether or not certain business stayed at Port Ivory. At this initial planning stage it was contemplated that the surplus pool would be relatively small and that the type of work performed by employees assigned thereto would be "principally of an appearance upgrading nature . . . landscaping, painting, sandblasting, dirt filling, track repair, pipe covering and general work of such nature." It was also thought that on occasion some employees in the surplus pool would be used on "regular operating jobs when needed due to special packs, unusual absenteeism, etc." In September 1961, Division Manager Holditch met with representatives of the Union, and discussed with them the creation of the surplus pool, stating that employees assigned to the pool would be used principally in work not subject to job bidding under the contract 29 and of a plant upgrading nature, but that job bidding procedures would be continued with respect to skilled jobs. When first established in September 1961 the surplus pool had only 5 employees, and accord- ing to Plant Manager Stettner, who was in charge of it, the number at any time until December 1962 did not exceed 15. Beginning in 1963, however, the size of the surplus pool increased so that by April 1963 there were 79 employees in it. Prior to February 1963, and as the number of employees in the surplus pool increased, the Company established a system of job assignment priorities for the utilization of surplus personnel, the effect of which was to reduce the earlier announced emphasis that such employees would primarily be used on "make work" projects. The manager of the surplus pool, under these revised procedures, was instructed to contact plant managers to determine their manpower requirements for the next week and, upon the basis of information thus received, work assignments were made to surplus pool personnel in the following priority order: 1. Budgeted production work to cover absentees, vacations, etc. 2. Budgeted nonproduction work, such as clean-up and maintenance. 3. Work covered by a special job authorization (JA work), which would not normally have been done at that time but for the surplus problem. 27 Stewart Hog Ring Company, Inc., 131 NLRB 310, cited by the General Counsel, is clearly inapposite. as See Walton Manufacturing Company, 126 NLRB 697, enfd. N.L R B v Walton Manu- facturing Company, 289 F 2d 177 (CA. 5). 29 A general labor classification with a rate equivalent to the highest unskilled rate was established for the surplus pool. Only jobs paying more than that rate were biddable under the contract. Persons coming into the surplus pool from jobs carrying a higher rate were transferred to the general labor classification but their rate was reduced gradually at the rate of 21/ cents per month until it equaled the unskilled rate. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The rate of pay for surplus employees doing budgeted work, whether production or nonproduction, was the rate for the job to which assigned. Those doing JA work were paid no less than the top unskilled rate and, if the work involved a recognized skill, the rate applicable to such job. The 1960 contract provided that vacancies in jobs above unskilled labor classification would be posted for bid, except that the Company could fill vacancies in biddable jobs temporarily, not to exceed 6 weeks From the inception of the surplus pool in late 1961, work that became known as JA work was not bid. When a nonbiddable budgeted job became vacant, surplus employees were convassed on a seniority basis and if senior employees did not want the job it was assigned to the junior man. All persons in the surplus pool were eligible to bid on biddable jobs. During the period March to May 1963 several meetings were held between the Company and the Union on surplus pool problems . These involved matters relat- ing to bidding JA work, whether surplus employees could be assigned to vacation relief for periods in excess of 6 weeks without bid, the application of seniority among surplus employees, and pay rates. With regard to a union suggestion that JA paint- ing work be bid, the Company took the position that, while painter's rates would be paid for such work, if the jobs were bid as the Union proposed then everyone in the plant would have the opportunity to bid and the basic purpose of providing work for surplus people would be defeated. However, the Company offered to bid 10 JA painting jobs on a temporary basis if the Union agreed that such jobs would' be open only to surplus employees. The Union did not agree to this suggestion, and the Company then established the procedure of offering the higher paying painters' work to senior surplus employees . The Company proposed that surplus employees who had warehouse experience be assigned temporarily to biddable warehouse jobs as vacation replacements , which assignments might last over 6 weeks by reason of one surplus employee successively replacing several absent regular employees. This policy was in fact followed during the summer of 1963, although the Union's posi- tion was that these vacation replacement jobs should be bid. Prior to that time, the Company had bid warehouse vacation replacement jobs if they were expected to last longer than 6 weeks. At a regular monthly meeting with the Union's executive committee on May 28, 1963, the several problems involving the surplus pool were again discussed. The agreed-upon minutes of that meeting summarize the discussion as follows: 30 Discussion Item:-The Status of Surplus Guaranteed People The subject of job assignments to the surplus guaranteed people was thoroughly discussed . The Union questioned the basic purpose of the group. The Company stated that it was to use these people as effectively as possible. The Company pointed out that following extensive discussions with Union repre- sentatives the Company's position was that when a "temporary" vacancy is created and the skill to handle the job is in "699," the Company may place the "699" person on this job. If the skill does not exist in "699" the job will be bid in the normal manner. However, because of the size and nature of the group, the Company cannot permit undue restrictions to be placed on the assignment of these people. Normally the higher paying jobs will be assigned to the more senior people when considered practical. Union Position:-Our old contract covers all employees regardless of what department they are in . Job bidding and seniority just to mention two agree- ments should be lived up to unless such agreement is waived by the executive committee. The contention of the General Counsel with respect to the operation of the sur- plus pool is (paragraph 19(c) of the complaint ) that from about February 25, 1963, the Company "created jobs without classifying them and assigned such jobs to employees from its surplus pool" without bidding the jobs, thereby unilaterally ter- minating "established rights and privileges of its employees ... to bid and apply for newly created jobs." It is further alleged (paragraph 19(a) of the complaint) that the Company, from about January 1, 1963, acted unilaterally with respect to jobs and job classifications "by eliminating , creating, reassigning , combining and rear- ranging" them. This latter allegation is related to the operation of the surplus pool to some extent, since the General Counsel argues that the 1963 job combinations and eliminations resulted in augmenting the surplus pool and, as a necessary result, 80 The reference in the minutes to "699" Is to the Company 's accounting designation used to described the surplus pool account after the latter part of March 1963. Thereto- fore it had been known as the 609 and later as the 622 account. PROCTER & GAMBLE MFG. CO. 397 the Company was able to utilize personnel therein on job assignments without observ- ing job bidding and other contract procedures. In short, the General Counsel in effect argues that by the operation of the surplus pool the Company in substantial part gained the flexibility it sought through its management prerogatives clause. It becomes necessary, therefore, to consider at this point the evidence relating to job combinations and eliminations. The 1960 contract contained the following provisions, as had earlier agreements: ARTICLE X Seniority BIDDING JOBS. All jobs above the classification of unskilled labor except supervision, supervisory training and confidential employee jobs, that are new or vacated (when a replacement is required) shall be posted by the Employer for bidding for three working days. The posted job shall show the name of the job, and pertinent information referring to the job being bid. It is the intent that jobs should bid as soon as vacancies exist, or the Union notified in writing of job discontinuance. The Employer reserves the right to fill any job vacancy temporarily for a period not to exceed six weeks, . 4. TRANSFERS. In case a job is discontinued due to a schedule change or other reason, selection of employees to be, transferred shall be from the job in the department where the job has been discontinued, except in crafts where plant seniority shall govern. Where ability and efficiency are approximately equal, the deciding factor will be plant seniority. If the job is re-established within one year the displaced employee, if qualified, may return to the job without the job being bid. The displaced employee shall have the privilege of staying within his department by taking the job of the person with least senior- ity in his department, provided he meets the requirements of the, job. This is the only time that the displaced employee being transferred may replace a guaranteed employee from an existing job. Employees transferred to new jobs retain their plant seniority for bidding on future jobs and all other purposes. In all cases under this section (article X, section 4) a Union Officer or Stew- ard in a department or craft shall be considered to have more seniority than any other employee in that department or craft. As indicated in the foregoing contractual provision, when biddable jobs were dis- continued the Union was to be notified. This was done either before or after the .actual discontinuance, the purpose being to apprise the Union of whether the par- ticular job would be filled or continued. An examination of the job discontinuance notices issued from January 1961 to May 1964 reveals that in 1961 there were 60 such notices (affecting 122 jobs), in 1962 there were 43 notices (affecting 55 jobs), and in 1963 and through May 25, 1964 (a 17-month period), there were a total of 88 notices (affecting 150 jobs). The form used provides that it "should be used in all cases of biddable job discontinuance such as schedule reductions, retirements, transfers terminations, death or any other causes." In the space provided for "per- tinent remarks," the entries on the notices in evidence, without regard to year, include all the above reasons as well as other related assigned causes, such as job combination, new methods and the like. During the same period, new jobs were created and biddable job vacancies were posted. The testimony of Industrial Rela- tions Manager Pease, which I credit, is that the procedure followed in this area after January 1, 1963, was no different than in 1961 and 1962, although it is clear from the transcript of the 1962-64 bargaining negotiations that the Union and the Company were in serious dispute regarding the extent and scope of the Company's unrestricted right to discontinue, combine and create jobs, and that the disagree- ment had existed since prior to the 1960 contract. 7. Administration of the time bonus plan The complaint alleges (paragraph 19(b)) that in January 1964 the Company `.unilaterally changed" wage rates and conditions of employment "by changing the basis of computation of wages" under the Company's time-bonus plan 31 The Com- 81 For this alleged violation, the General Counsel argues that backpay is due to the un- identified employees affected. Recognizing that the employees adversely affected, on his view of the facts, are not identified on this record, he suggests that this matter be resolved in a backpay proceeding. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany contends there was no change in the time-bonus plan but, rather, that what, occurred was a correction of faulty administration of time-bonus procedures by some frontline supervisors , a situation which was discovered in a routine audit. made in October 1963. Since 1928, the Company has maintained a companywide time-bonus plan which, is applied, as stated in the plan, "to any operation or work in a plant when the Company determines that such application is in the best interests of the business."" The published plan, which is made available to the Union and employees who par- ticipate in it, provides that the determination of the standards and allowances upon which normal job performance is based is made by the Company, as well as whether particular work should be placed under or removed from the time-bonus plan. The 1960 contract between the parties provided (1) that time-bonus stand- ards may be changed only as a result of a job study, (2) that an employee may- request a recheck or restudy of a job standard, if necessary with the aid of the Union's time-bonus representative, (3) that two employees, agreed upon by the Union and the Company, would be trained in the theories and practices of time study to represent the Union "in any disputes over Time Bonus arising in the fac- tory," and (4) that grievances arising out of the operation of the plan "shall be settled by the grievance procedure culminating in arbitration." Additionally, the contract provided that time-bonus earnings would not be included in computing base rates for purposes of wage surveys. Except for the foregoing provisions, the Company was not restricted by the terms of the contract with the Union in its administration of the time -bonus plan. About 500 of the employees at Port Ivory were employed on jobs to which I of 2 types of time-bonus applications are made. The largest number , about 350, are on jobs to which manual bonus applies, and about 150 are employed on jobs to which chart bonus applies. The chart application, referred to as manual-machine- quality (M.M.Q.), is confined to operators of equipment who are in a position toy obtain better than normal performance from the equipment they operate. The issue here involved relates to a portion of the 150 employees on chart bonus who were employed in the food and synthetic plants at Port Ivory. During October 1963, the Central Industrial Engineering Division of the Com- pany made an audit of the administration of the time bonus plan in the food and synthetics plants at Port Ivory. Such audits are customarily conducted every 18 months. The audit reports showed that in both plants the ratings on several factors involved in time-bonus administration were very low. The rating of the food plant for administration of manual-machine-quality chart (M.M.Q.) was zero, and the- rating of the synthetics plant for the same item was .20 out of a possible score of 1.00. Commenting upon the zero rating for the food plant on this item, the audit stated: M.M.Q.Design, Calculation and application Nothing of a positive nature can be said concerning the administration of M.M.Q. applications within this plant. Not only have new gross deviations been developed since the previous audit practically none of the deviations reported in the last audit have been corrected. By far the most serious situation is that which exists in the P.M. [pre- pared mix] packing department. Under the administrative procedures now is [in] use the incentive is to keep line efficiencies low. Since all downtime is allowed to the operators, it is possible for them to earn bonus while operating at 60% scheduled machine efficiencies and therefore at the same' time force the department (and associated departments) to hold overtime thus further increasing their premium pay while increasing the cost/case to the company. The basic, philosophy of all chart applications should be results- when results are poor there is no justification for maintaining bonus earnings. Regarding the same item for the synthetics plant, which was rated at .20, the audit stated that with the exception of two departments "all M.M.Q. chart applications are being poorly administered." The principal deviation noted here, as in the food plant, was that operators were being allowed "downtime" while not being assigned to productive work away from the line, contrary to the following provision in the time bonus manual: During machine or equipment downtime, regardless of cause, no reduction of hours on Job Standard will be made for purposes of calculating Time Bonus unless the Company assigns the employee work away from the machine or equipment. PROCTER & GAMBLE MFG. CO. 399 The manager of any particular department in which the time-bonus plan is in effect has the responsibility of determining whether to assign operators to other work away from the equipment when it is stopped for some reason. If the machine line is down because of some mishap or faulty operation, and the operators remain at the line while the defect is being corrected, proper administration of the time-bonus plan does not permit showing the operators as off standard and being given a downtime allowance. However, the audit revealed that in such a situation department managers were permitting crews to remain at the machine line during the time the line was down and at the same time being given down- time allowances which, according to the plan, should have been given only if the crews had been assigned to productive work away from the line.32 While the audit was being conducted, Division Manager Quinn informed the Union's executive committee at a monthly meeting on October 18, 1963, that preliminary information indicated that the time-bonus plan was being poorly administered and that he would have the plant managers take a close look at the problem. Thereafter, on November 19, 1963, plant managers and industrial engi- neers from the Port Ivory food, soap and synthetic plants met with Division Manager Quinn to consider correction of the deviations in time-bonus adminis- tration disclosed by the audits. The principal problem discussed was the practice of allowing downtime to employees who had not been removed from a line which was down and placed on other productive work. A schedule for corrections was set up, which provided for the training of managers and the construction of talks to be given employees during the period from December 2, 1963, to January 2, 1964, discussions with shop stewards on December 27, 1963, to advise them that employees would be given talks on M.M.Q. chart application, talks by managers to employees on January 2, and ultimate correction of deviations on January 6, 1964. In general, it appears that this proposed schedule was followed, although in some instances shop stewards first became aware of impending changes in time- bonus administration from the meetings managers had with employees shortly before January 6. The text of a prepared talk that the managers used in meetings with employees on chart bonus, placed emphasis on achieving good machine efficiency, and gave the following illustrations of the correct administration of downtime: Suppose a line went down for an hour due to being out of containers. Ans. If there is no work available at the line such as scrapping or repack, the crew would be removed from the line and assigned other useful work. This downtime would not reduce the machine efficiency. Another example would be if slide jams occurred in the warehouse causing the line to shut down for a 4 minute period. Ans. No downtime could be allowed unless the crew was removed from the line. However, during such a short period of downtime it is not practical to remove the crew from the line. In this case, machine efficiency would be reduced by the number of cases lost due to the 4 minute downtime. One last example. On an Ivory Freezer it was discovered during operation that the wrong perfume had been used for 2 hours. Ans. No manual or machine credit can be allowed for the bad production. Chart payment can be made only for results. The chart pays the operator to be alert for prob- lems of this sort. A number of employees testified to the effect that in addition to changes involv- ing the administration of downtime there were changes also in the practices relating to other aspects of time-bonus administration, such as combining or not combining 32 While a machine line is down (i e., stopped), operators are for that period assured of being paid their basic day rate. The critical point is whether during machine stoppages the operators are to be shown as on or off standard If they are shown as off standard, then the earlier rate of production per unit of time is protected and consequently there is no adverse effect on bonus earnings To Illustrate, if for the first 7 hours the operators and the equipment have produced at a rate sufficient to earn an hour of bonus (that is, 8 hours of production in 7 hours), then in the event the machine is down for an hour and down- time is allowed the result is that for bonus calculation purposes the operators and the equipment are regarded as having been on standard for 7 hours rather than 8, and they would receive 9 hours pay for the 8-hour shift On the other hand, if they are shown as on standard (no downtime allowed) for the full 8 hours, bonus earnings, if any, would be less than 1 hour. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD overtime with regular time for bonus calculations and permitting a training allow- ance to all members of a crew which was training a new employee. These latter matters are not discussed in the audit reports nor were they considered in the November 19, 1963, management meeting. Considering all the testimony regard- ing these other areas of time-bonus administration, I am satisfied that the most that can be said is that some managers, coincident with the correction of devia- tions in downtime administration, may have "tightened up" somewhat in these other areas. The evidence, however, does not in my opinion warrant a finding that the time-bonus plan was changed in these other respects in January 1964. Several employees testified that they lost bonus earnings as a result of the cor- rection in the administration of downtime. At best, the testimony is vague and inconclusive. The Company introduced an exhibit making a comparison of bonus earnings of representative employees in the affected departments during the last quarter of 1963 and the first two quarters of 1964. In this exhibit bonus earnings are shown as a percent of paid hours worked in order to rule out variations based on factors other than the corrections, made. These calculations show that there is no fixed pattern of increases or decreases in employee bonus earnings, although the number of increases considerably exceed the number of decreases 33 At the January 15, 1964, monthly meeting the Union brought up for discussion the changes in time-bonus administration, contending that before the changes were effected on and after January 6, the Company should have negotiated with the Union. The Union also claimed at this and succeeding meetings on January 21 and February 6, that the change was one in application rather than administration of the time-bonus plan, was contrary to prior agreements, and resulted in loss of bonus earnings. Division Manager Quinn took the position that in view of the particularized nature of the corrections the Union should discuss specific prob- lems with the plant managers involved. At the February 6 meeting, attended by the full executive committee and the Union's time-bonus representative, and also by plant industrial engineers, the Company explained the corrections that had been made in time-bonus administration, although Quinn still maintained that any problem could better be handled by the plant managers on an individual basis. President Reed of the Union raised the question, apparently in the context of the Union's claim that individual employees were losing take-home pay because of the changes, whether the Company would consider granting "red allowances" to minimize the effect of the changes on particular employees.34 Quinn indicated he would consider that possibility for particular cases, but the Union did not further pursue this.35 After carefully considering the extensive testimony and exhibits regarding the Company's changes in time-bonus administration effected in January 1964, I am not persuaded that these were of a nature, in the circumstances of this case, as Of the 20 employees considered in this exhibit, 12 had an increase in bonus earnings (expressed as a percent of paid hours) in the first quarter of 1964 as compared with the last quarter of 1963, and 8 had a decrease In the second quarter of 1964, 12 employees showed an increase in percentage over the first quarter of 1964, while 7 showed a decrease The percentages during the third quarter of 1963 ranged from 2 4 to 29 7, and averaged 14 2. For the first quarter in 1964, the percentages ranged from 3 4 to 29 6 and averaged 14.4. For the second quarter in 1964, the percentages ranged from 8.3 to 27 3, and averaged 15 8. 34 The time-bonus plan provided that when a job standard "is corrected because it was incorrectly calculated or applied, for an extended period, and reduced earnings result from the correction, the Company may make special allowance (called Red Allowance) to the employee involved." 35 The only specific testimony as to loss of bonus earnings related to employee J. E. Coppolo, a machine adjuster, whose pay slips for a 7-week period beginning in June 1963 and the same 7-week period in 1964 were received in evidence. During the first period, he worked 321 clock hours, had regular hourly earnings of $1,334.99 and bonus earnings of $196.52. During the 1964 period, he worked 2991/4 clock hours, had regular earnings of $1,277 12 and bonus earnings of $73 56. Expressed in terms of percent of paid hours, Coppolo's bonus earnings were as follows . first quarter 1963, 15 6 ; second quarter 1963, 16.4 ; third quarter 1963, 12.2 ; fourth quarter 1963, 14 4 ; first quarter 1964, 12 5 ; and second quarter 1964, 10.2 There is credited evidence that both during the third quarter of 1963 and in April 1964, new equipment was installed on the line serviced by Coppolo which did not function up to expectations, thus depressing bonus earnings of machine adjusters. It cannot be inferred from all the evidence regarding Coppolo's bonus earnings that changes in downtime administration caused the smaller bonus earnings in the 7-week period in 1964 as compared with bonus earnings in the like 1963 period. PROCTER & GAMBLE MFG. CO. 401 which required advance notice to and bargaining with the Union before being put in effect. That time-bonus administration by certain firstline supervisors had become faulty and represented clear deviations from the provisions of the time-bonus plan is apparent from the October 1963 audits. The main defect was in the area of allowing downtime. Whether or not to allow downtime and assign machine crews during such periods to productive work elsewhere was a decision committed by the time-bonus plan and the expired bargaining contract to management. Having found as a result of the October 1963 audits that the provisions of the time-bonus plan with respect to allowance of downtime were not being adhered to by first- line management, the Company decided to correct this faulty administration. The corrections in administration were not "unilateral changes" in the plan itself, although there can be little doubt that the effect of the corrections was to reduce the opportunity of employees to benefit by having bonus earnings calculated upon an erroneous basis. I find that by tightening the administration of the time-bonus plan in January 1964 to bring it into closer conformity with the terms of the plan, the Company did not default in its collective-bargaining obligation or other- wise transgress any of the provisions of Section 8(a) of the Act.36 H. Written and oral communications allegedly undermining and bypassing the Union and disparaging its leadership The complaint alleges (paragraph 14) that during all times here material, the Company "engaged in a course of conduct in derogation of the Union's status as representative ... and with a purpose to bypass and undermine the Union thereby as such representative." All actions of the Company elsewhere alleged as violations of the Act, as well as some 13 other allegations,37 are here included as integral parts of the alleged unlawful "course of conduct." In the present section we shall summarize the evidence relating to two elements of this "course of conduct," set forth in subparagraphs (d) and (e) of paragraph 14 of the complaint: that the Company (d) Communicated orally and in writing to its employees, attacking and disparaging the competency and integrity of the Union's leadership in bargain- ing, and repeatedly asserting doubts concerning the Union's identity and majority status. - (e) Conferred, with respect to Respondent's bargaining proposals and posi- tions, with employees individually and in group meetings with employees, and solicited employees' opinions on such proposals and positions. Written communications issued by the Company during the period from Septem- ber 1961 (a year before the Section 10(b) limitation date) through June 1964 were received in evidence, as were bulletins issued during the same period by the Union, which in general were related to the literature put out by the Company. The types of literature distributed by the Company include: (1) Communications generally distributed to all plants, usually on an annual basis, dealing with employee benefits such as profit sharing, guaranteed employment, and the like. In this category are the "Employment Security Talks" and personal information reports. (2) Promotional advertisements, seven in number, placed in a. Staten Island newspaper as part of the tercentennial anniversary of Staten Island, which stressed the good will of the Company. These were sent, with covering letters, to employees' homes during the period October 1961 to September 1962, and did not discuss bargaining issues or positions. (3) Reports on the status of bargaining were contained in "Negotiations News".and "Management Letters," and a bulletin series entitled "In Answer to Union Bulletins" more pointedly commented on bar- 5 In so finding, I have not overlooked the sorcalled past "understandings" regarding time bonus as reflected in prior discussions with the Union and in the consideration of specific grievances, all collected in a memorandum written by Industrial Relations Man- ager Pease to Division Manager Quinn on November 13, 1963. ar Among these other 13 allegations, not specifically discussed in this section but dealt with elsewhere, are: refusing "to accord the Union full recognition," refusing to discuss substitution of a company in the wage survey at monthly meetings and refusing to sub- stitute a company in the wage survey, "insisting" on a number of specific bargaining proposals, withholding use of bulletin boards, discontinuing the checkoff, refusing to in- corporate agreed upon working conditions in the new contract, and adopting and main- taining "take it or leave it" positions on subjects of bargaining. 257-551-67-vol. 160-27 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining- positions and literattirerissued by the Union.' (4) - Letters relating, to the differences and litigation" between the. Company and the Union over the scope of arbitration.,- - ' , - 1. Letters and talks. on employment security In a letter to employees dated September 26, 1961, then Division Manager Holditch noted, that the Regional Office of the Board had dismissed certain charges filed by the Union regarding "several recent actions" taken by the Company, including "combining certain clerical jobs." Holditch stated that the "real prob- lem" apparently was the "difference of opinion between the Company and the Union on how to provide individual security," and that in the Company's view security required meeting the changing needs of customers, which necessitated changing processes, equipment and brands and, in turn, on occasion "some jobs must be discontinued, duties have to be conbined." He then said: "I get the feel- ing that the Union thinks security can be provided by job restrictions and rigid rules to prevent jobs combinations and discontinuances." In a bulletin dated Octo- ber 2, 1961, the Union commented that "the one serious point worthy of an answer" in Holditch's letter of September 26 "is the problem which exists between the Management and the Union on the matter of job security." The Union stated that "your job, or job classification, is the foundation stone of the contract-Take away the integrity of the job classification and the contract becomes a farce." The suggestion by Holditch that "the Union thinks security can be provided by job restrictions and rigid rules to prevent job combinations and discontinuances" was characterized as "a wicked trick" to get employees "to think, that is what the Union wants." The bulletin stated that the Union "has never objected to reason- able and necessary job combinations" but had objected and would continue to object to "capricious, poorly planned job combinations and job discontinuances." In a further bulletin on November 5, 1961, the Union characterized the Com- pany's concept of employment security as "the right to hold a job at Port Ivory as opposed to rights to a particular job at Port Ivory." Referring to the following sentence in a company leaflet discussing employment security, issued in mid- October, "People who have a free choice of Employment Security or rigid Job Security, choose Employment Security," the Union stated: "They mean you, the Port Ivory employees, are satisfied to surrender any rights you might have to your classification or your craft, and that your Union is fighting to protect these rights against your wishes." The bulletin provided a space for employees to vote "yes" or "no" on whether they approved the Union's "continuing efforts to protect job classifications." Thereafter, in a bulletin dated January 17, 1962, the Union reported that the results of the poll showed "871 Port Ivory employees approved of the Committee's continuing efforts to protect their job classifications" and 137 did not. In January 1962, department managers gave Port Ivory employees a uniform talk on employment security, adapted from a talk prepared by the Company's Central Industrial Division in Cincinnati. It outlined the Company's history of employment security provided by the guarantee of regular employment, stated that such security was not possible without profit, growth, change, and flexibility, and contrasted the Company's employment security with "rigid job security that slows down and prohibits change" and "often sacrifices employment security." 2. Letters concerning the scope of arbitration As has been noted in an earlier section (see section III, B), early in 1962 the Company and the Union engaged in a public debate over the proper scope of arbitration, the Company expressing the view that "operating decisions" should not be subject to arbitration while the Union accused the Company of having entered into the 1960 contract in bad faith and with "no intention of living up to what you promised." In a letter to employees on January 12, 1962, the Company stated that arbitration "may be helpful in non-operating matters" but termed it unfortu- nate that "some of the union officials" had sought arbitration of a job-combination decision, which the Company held was a matter outside the proper scope of arbitration. After Union President Reed had disputed the Company' s views on arbitration in a long public letter dated January 31, 1962, Division Manager, Hol- ditch replied on February 8, as quoted in section III, B, above, and in a covering letter to employees implied that Reed "is not interested in solving problems but only in causing unrest and discord," and expressed "disappointment in his current inflammatory approach." . PROCTER & GAMBLE MFG. CO. 403 In a personally signed open letter to Mr. Holditch 'dated February 21, 1962, the 10 members oft the 'Union's executive committee other than Reed, stated they "were shocked and discouraged by your unwarranted and slanderous attack upon the president of our union" in the Company's February 8 letter, adding that the Company was "besmirching Mr. Reed's character." The letter made these further observations: In your letter "To all Port Ivory Employees" you state that you do not believe that a highly emotional exchange of letters will accomplish anything in the way of better understanding or the promotion of good will among all of us. And you compliment yourself that you have expressed your thoughts "somewhat less emotionally than he did." In a matter less serious it would be almost comical to read these state- ments in a letter in which in three short paragraphs you (1) accuse the Union president of bad taste; (2) charge that he is "not interested in solving problems but only in causing unrest and discord," and finally, (3) that he is using an "inflammatory" approach, in pious comparison to what you claim to be your , own "willingness . . . to approach our differences in a logical and constructive manner." Mr. Holditch, what manner of men do you think your Port Ivory employ- ees are when you make the bare-faced statement to them that you are willing to approach our differences in a logical and constructive manner and at the same time bombard them at home and at work with relentless criticism of union officers, of arbitration and arbitrators, and even of the Federal courts, in short, of anything or anyone standing in the way of your goal of: "No restrictions." 3. The bulletin barrage relating to negotiations During the prolonged course of bargaining both the Union and the Company published many bulletins summarizing the status of negotiations, explaining the meaning and effect of particular proposals, and commenting upon the objectives and tactics of the other. At times the debate became bitter, with each side ques- tioning the motives, good faith and judgment of the other. It would unduly extend this Decision to attempt to do more than give a fair ,sampling of the tone of the literature and its content, in an effort to discover whether the Company's com- munications are, as alleged, an integral part of a course of conduct derogating the Union's status as bargaining representative and evincing a purpose to bypass and undermine the Union as such representative. In order properly to appraise the Company's communication program, it seems not only necessary but also appropri- ate to take note of the Union's related literature. The first company bulletin dealing with the bargaining, after negotiations began on April 10, 1962, is dated June 12, 1962, entitled "Negotiations News." It listed and briefly explained the changes the Company had requested, in the contract and what it had offered. Prior to this time the Union had issued several bulletins in which it had repeatedly characterized the Company's proposals as "take away bargaining," a slogan which recurred frequently in subsequent pronouncements by the Union. Thus the May 28 union bulletin, in listing proposals made by the Com- pany, began each one with words similar to: "The Company wants to take away your right . . . ," and on June 4, a union bulletin under the caption "TAKE- AWAY BARGAINING," stated that management "has embarked on a course of take-away bargaining which could result in the loss of many protections now guaranteed in the contract," and again listed the specific "take-away" proposals. The June 6 bulletin was entitled "TAKE-AWAY BARGAINING," stated that "In each of its proposals the Company seeks to take away from you, the employees, a benefit which you now enjoy," and posed seven questions for employees to answer, of which the following two, with related comment, are typical: 4. Do I want to surrender all of my rights to my job, the job I bid, and give Management the exclusive right to create, combine and discontinue job classifications with "no restrictions" of any kind? 7. Do I want the Union to accept the Company's proposals which would destroy the only effective step in the grievance procedure-arbitration? Your right to your classification and the duties of that classification is your most valuable job right. It is supported by your right to go to arbitration with any grievance concerning it. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If Management gains the right to manipulate jobs and job contents, and to contract out with "no restrictions" it can result in the down grading of jobs and pay rates. Your job and your pay rate! If you are one of those who "don't care what I do as - long as I get paid," you can work considerably -harder and get paid considerably less if you per- mit the benefits of your present contract to be taken from you. The June 8 bulletin reported that at a special meeting that -day the union mem- bership had voted 424 to 36 in favor of a strike vote, and had thus "demon- strated their ability to find their own answers to their problems, and the answer to the question, should the rights and protections of the present contract be reduced as proposed by the Company, is a clear, firm `No."' 38 In a June 12 bulletin, the first of a series entitled "In Answer to Union Bulle- tins," the Company stated that "Union bulletins have told one side of the negotia- tions and have tried to establish a slogan of `take-away bargaining."' The bulle- tin continued: There is no such thing as "take-away bargaining" in these negotiations. Bargaining is a two-way-street. We have always looked at it this way .. . Many times in the last couple of years the Union told the Company to bring items up in negotiations, if we felt something needed straightening out. This year we did, as we have done before .... However, the Union' s reaction now seems to be that the Company is being unfair. Already-even though we are in the middle of day-to-day bargaining-we hear talk about a strike and we see newspaper publicity about a strike-vote. In the issues of "Negotiations News" of June 15 and 22, 1962, the Company summarized the current status of the negotiations, and in particular discussed the Company's proposals concerning grievance procedure and arbitration. The added proposed step in the grievance procedure, providing for consideration by a repre- sentative of the president of the Company if the Union was dissatisfied with the answer given by the division manager, and the addition of a separate board of arbitration to determine issues of arbitrability, were described as designed to use "P & G experience to solve as many problems as possible" and to provide "an orderly way to settle disputes over arbitrability." On June 22, 1962, the Union issued a bulletin limited to a discussion of the Company's grievance procedure and arbitration proposals, stating that these "would result in some grievances being involved in two arbitrations instead of one" and, because of the "express provision," would "mean that we can't arbitrate grievances based on procedural items, official interpretations of the contract agreed to by the Company and the Union, agreements made in monthly meetings, or any other agreements made between the Union and the Company." On June 25, the Union's bulletin reported that the contract, expiring June 23, had been extended to July 26, 1962, and that attendance of a Federal mediator had been requested by the Union because the "committee is convinced that negotiations have reached the stage where outside assistance would be beneficial." The bulletin further charged that the Company, in its June 15 publication discussing arbitration of arbitrability, "mislead[s] you when they claim to be printing a `factual summary' but do not make clear the hidden significance of their words `express provisions' of the contract"; and that the Company had "admitted to your bargaining com- mittee that under their proposal, they want to TAKE AWAY your right to arbi- trate grievances" based on past agreements, procedural items, official interpretations and agreements made in monthly meetings. The Company responded to these assertions with a bulletin on June 28, 1962, in which it undertook to answer several typical questions about its arbitration proposal. Concerning "agreements made at monthly meetings" and the like, the Company stated that under its " express provisions" proposal these "as such, would not be arbitrated" but they "could be offered to the arbitrator as evidence in arbi- trating express provisions of the contract." A company bulletin of July 16 termed the contract proposed by the Company "the best Union Contract in any plant in the United States" and stated that without a new contract "there is little promise of relief from the daily bickering that has hurt operations-little hope that Port Ivory can become the friendly, cooperative place that all of us want it to be." On 18 This' was a preliminary vote approving the taking of a strike vote. The vote to authorize the Union's executive committee to call a strike was taken on August 15, 1962, and carried by a margin of 6 to 5. PROCTER & GAMBLE MFG. CO. 405 July 18 the Company stated in another leaflet that "Union writers are giving the impression in their bulletins that the Company's arbitration proposal would `take away' something from employees," and that this was "a far cry from the facts," and that "Anyone who claims that something is being `taken away' either is not aware of the Court decisions, has been misled, or is deliberately trying to mislead people." As noted earlier herein (supra ), the July 18, 1962, negotiation meeting was adjourned shortly after it began by Division Manager Holditch following a bitter attack upon the Company by Union President Reed, who, in undertaking to sum- marize the status of negotiations for the benefit of Mediator Wilson, charged that the Company was "one of the biggest antilabor outfits in the country" and "insists on this take away bargaining because they are antilabor." On July 19 the Union's bulletin reprinted the full text of the bargaining transcript of the day before, and, referring to the termination of the meeting by Holditch, said: "The Executive Committee feels that this melodramatic action by management [in terminating the meeting] on such flimsy grounds was designed to create an incident which would appear to put your Executive Committee in a bad light." Two bulletins of the Company, issued July 23, summarized the status "of the requests and offers which have been made in negotiations," and again argued that the Company's arbitration proposal was not a "take away" proposal. On July 24, the day before the Union's scheduled meeting to consider the Company's contract offer, the Union published a bulletin stating that "the true, unalterable, objective of the Company . . . as shown in the last Company paper, is to make the arbi- tration procedure so expensive, time-consuming, and complex that it will be impractical for any useful purpose." Employees were told that they had two deci- sions to make: the first, whether to "put your faith in your Union" or "in a Management trying desperately to strengthen its grip on you," and whether to "believe your own Union Bulletins which are factual reports plus interpretations from the employee's point of view" or "believe the professionally written com- pany papers which have as their main objective . to destroy your faith and confidence in your Union and your Union officers" by trying "to sell you the preposterous proposition that their take-away bargaining will result in even greater benefits to you"; secondly, whether the existing arbitration clause, regarded by the Union's executive committee as "the most important single provision of the con- tract," was "worth fighting for." In its bulletin of July 25 the Company referred to "union accusations [that] make it sound like Procter & Gamble is ruthless, heartless, and anti-labor" which it termed "familiar elements of a `fear campaign,"' and reproduced "a few of the Union's `fear' statements in recent months," which it then undertook to answer. The bulletin concluded as follows: The Union has said, in effect, who do you trust-the Union or the Company? "Choosing up sides" hinders the mutual success of the employee and the Com- pany. Employees should be able to trust both their Union and their Company. Only you can decide what to believe. Only you know how you personally have been treated through the years. Only you know whether or not you con- sider Procter & Gamble a good place to work. The 1960 contract, after having been extended twice, expired on August 3, 1962. On that date, both the Company and the Union issued bulletins. The Com- pany's was limited to a comparison of the grievance procedure and arbitration provisions of the existing and proposed contracts. The union bulletin commented that acceptance of the Company's management rights clause "would mean an almost total surrender of your rights to your job, your wages and your working conditions," and that while "decisions affecting jobs and contracting out of jobs must naturally originate with Management," in situations "where such decisions are unfair and in violation of the contract, the employees and the Union must have the right to question such decisions and have the merits of their question judged by an impartial arbitrator." On August 10, 1962, the Company sent to employees' homes a letter with an attachment discussing their status, pay and participation in company plans in the event of a strike, a vote on which was set for August 15. Among other things, the Company stated that in an economic strike, "such as is being discussed at Port Ivory, you, as an 'employee, choose not to work by going out on strike," and noted that the Company "can choose to replace you permanently" and that "you receive no pay from the Company" while on strike. The Union, on August 14, 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issued a bulletin stating that the Company's August 10 letter "implies that the purpose of the strike vote is `to put pressure on' the Company," a purpose which the Union denied. It also stated that the Company told "only part" of "what could happen in the event of an economic strike," adding that employees "were not told 'that at many plants which struck over unfair practices , the workers were re-instated to their jobs with back pay for the time they were out on strike." The same -date -the Company issued a bulletin pointing out that it "makes no difference whether a strike is economic or because of unfair labor practice as far as loss of pay for strikers is concerned," and that "the only time employees get back pay is if they want to come back to work and the Company will not let them." In a separate bulletin of the same date (August 14) the Company, noting that a spe- cial union meeting had been called for that afternoon and evening prior to the strike vote the following day, stated that the decision to strike "should not be an emotional , spur-of-the moment decision," and then listed "some possible [Union] statements that "may be made at the meeting" "followed by Company comments." The strike vote on August 15 carried by a margin of about 6 to 5. Thereafter, the parties continued to meet in negotiations and, during the balance of the year 1962, the volume of bulletins issued by each side markedly diminished. - In his brief, the General Counsel argues that "most clearly the Company's literature to employees crossed the line between permissible free speech and improper restraining communications during the period from January 1963 through May 1963." It is contended that the Company during this period sought to influ- ence employees in the forthcoming May 15 election of union officers by question- ing the competency, judgment, and tactics of the incumbent leaders of the Union. On December 13, 1962, the Union published a bulletin stating that "since the beginning of negotiations" the Company "has been fixed in their thinking and have made no modifications whatsoever" in the management rights clause "which is the main roadblock to the signing of a new contract ." The bulletin then stated that the. "favorite theme of a few of our good (?) union members" was that the "pres- ent poor state of labor relations at Port Ivory is due solely to the policies and personalities of the present Executive Committee ." There then followed a discus- sion of labor relations elsewhere within the Company and this question : "In view of the foregoing doesn't it look like the new breed of Procter and Gamble man- agement has decided on a short-sighted get-tough policy than it does that the Port Ivory Union or any P & G Union is responsible for all the difficulties?" On January 14, 1963, the Company reported, under the .headline "NO ARBI- TRATION AT PORT IVORY WITHOUT A CONTRACT" that the Court of Appeals for the Second Circuit had decided,39 in a case brought by the Union, that a grievance arising during a no-contract period after the expiration of the 1959 contract was not arbitrable under that agreement , reversing the lower court which had held the issue arbitrable. The Company's bulletin stated: This case is another example of the Union leaders trying to claim in court what they have plainly not gained in bargaining. We question their judgment in using this kind of tactic. A Company which is constantly confronted with unreasonable issues, must make sure in later bargaining that all such issues are cleared up. The January 14 bulletin also commented that while union bulletins "often talk about problems at other P & G plants" the "real problems are here and the Union leaders might do well to be concerned with the home problems." In a bulletin dated January 15, 1963, the Union explained that it "has not pub- lished a bulletin for some time now" for three reasons: (1) "negotiations had slowed down to the point where there was very little to report," (2) "to insure that no unintentional word would impair the atmosphere in which Mr. Morgens [president of P & G] would consider" the petition from employees theretofore submitted and apparently seeking his personal intercession in management-union problems at Port Ivory and other P & G plants, and (3) to give Mr. Quinn, the new chief company negotiator, "every opportunity to start off in an atmosphere of his own choosing." These reasons had passed, the bulletin stated, because (1) in negotiations on January 10 and 11 the Company "showed a new and much stiffer posture," (2) the petition sent to Mr. Morgens had been ignored, and (3) while Mr. Quinn was "pleasant and likeable enough," he "thinks God, blessed "Procter & Gamble Independent Union of Port Ivory, N.Y. v. Procter & Gamble Hanu- facturang Company, 312 F 2d 181 (C A. 2) I ' - ' PROCTER &^ GAMBLES MFG. CO. 407- Pf6cter'& -Gamble''principally for the' benefit' of, Management."•'A )union bulletin on January 23- depicted two "cheerful pallbearers carrying "Port- Ivory employee rights" iii a 'casket,' and said that ' whereas management' in the past "was note- worthy- for its independent thinking," that was not true of "the new style" manage- merit which "parrots" the "party line of the N.A.M." ' On January 24, 1 1963, the company bulletin noted that ."Union 'leadership-in their bulletinswork hard at trying "to 'run-down' the Procter &' Gamble manage- ment," and stated that "when it comes to real progress, the Union's record for the people is not as good." The bulletin further stated that "the Union is trying to prevent the Company from taking' the actions essential to real employment security," that with respect to wages and wage survey "Union tactics have made it difficult for us to see why the high wage levels of the past should be maintained," that while "Union leaders are trying, to force P & G to arbitrate operating deci- sions, they are leaving employees with no arbitration on anything when we are without a contract," and that "as a result of the Union's effort to get arbitration of operating decisions, the Company's offer of added benefits is being turned down by the Union. The bulletin concluded:- In our opinion, all of this-the insulting remarks, the attempt to get arbitra- tion of operating decisions, and the "shot-gun" approach of sending anything and everything to arbitration-adds up to a case of poor judgment. This approach has not produced results in the last 3 years, and cannot be expected to produce results in'the future. On January 29, 1963, the Union stated in a bulletin that the Company "has been using every device that could be invented by its million-dollar Industrial Relations Department to sugar coat its take-away bargaining," and then reprinted a,portion of the text, of the bargaining transcript of January 10 to "give you some idea of how the Company's proposals appear without the sugar-coating." In a February 1, 1963, bulletin the Company said that with respect to the "major disagreement on the meaning of the arbitration clause" the Company had offered possible solutions, but that the "Union officers have not offered a constructive solution to any of our serious differences." It accused the Union, by quoting some of the January 10 bargaining transcript, of "trying to lead people to falsely believe that the Company stated it would change over-night and start mistreating everyone." The -bulletin argued that P & G was different from other employers because its policy of guaranteed regular employment assured employment security. It stated "the P & G Union leadership takes guaranteed employment for granted" and "want lob„duties maintained" which "would be sheer suicide" and "take away from management the very basis for being able to maintain guaranteed employ- ment." It defined the basic issue as whether management should "continue to have the freedom to make final decisions in such areas as contracting,out work, assign- ment of job duties, and job combinations," and reiterated that the Company had agreed to arbitrate contract matters. The bulletin concluded: YOU HAVE A CHOICE TO MAKE This can't go on forever. Clearly, every person in -this plant has a choice to make. It is a choice between-the kind of leadership P & G has provided throughout the years and hopes to be able to continue; "and the kind of Union leadership that you have seen in the last few years. The Union leaders-in a bulletin-accused the Company of relying upon the "blind trust" of employ- ees. We have never asked for blind trust and never will. Your eyes are open and you know how you have been treated and what you have . For three years now, the Union leadership has blasted away with the same kind of tactics used by outside unions. We think this judgment is poor. The present Union leadership's record for the people shows fewer jobs, a declin- ing wage survey, no arbitration at all at the present time, and good benefits being turned down with a money loss for everyone. Ironically, this comes at a time when the rest of the Company is moving forward. The next company bulletin, dated February 13, 1963, summarized the letter of February 11, sent by Chief Negotiator Quinn to the Union and quoted above (supra), closing the bargaining until' "convincing evidence" appeared that the scheduling of a further bargaining session "would be worthwhile in reaching agreement on our major points of difference." The bulletin stated: WHY HAS IT COME TO THIS? • The Union leadership, by using destructive and harassing tactics, has forced us to defend the very principles which have helped make P & G successful. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Our only choice has been to spell out in black-and-white detail what managers and employees have known for years. For example, it is a well known fact that much of P & G's success has been due to good operating decisions. These decisions include the contracting out of work, combination of jobs, and assignment of job duties. The results cannot be denied. P & G people have shared in P & G's success through profit sharing, guaranteed employment, and by getting wages and benefits far beyond the rest of our industry. The Union leadership knows full well that the Company has maintained the full responsibility for these decisions throughout the years. Even in the face of this, we are convinced that the Union officers seized upon a court decision involving other companies and other situations to try to limit P & G's formula for employee and Company success. The Union has thrown sand into the wind, not caring where it lands or who it hurts. YOU HAVE A PERSONAL RESPONSIBILITY Every person in this plant has a responsibility that cannot be dodged. This current situation is not a run-of-the-mill difference between the Union and management. It is apparent that the present Union leadership's thinking and tactics are not compatible with what P & G knows by experience is needed to keep the business healthy. You have to make a choice. The tactics the Union leadership is using are the same kind of tactics used by unions outside P & G. The difference is that P & G is not an "outside" Company. We are a company that believes in having people share in the Company's success. We believe in steady employment. We believe in the kind of good operation which makes possible high wages and benefits. But we can't accomplish all of these things when we have to overcome the obstacles built by this kind of Union leadership. On March 1, 1963, a company bulletin quoted some statements by then Division Manager Quinn made in the bargaining sessions, in which he said that the "over- all labor management relationship ... has a bearing on some of this work going elsewhere." The bulletin continued: Union cartoonists can draw all the "Moneybag" cartoons they want. This is just another example of shallow thinking. The fact remains that 2 out of 3 people at Port Ivory buy P & G stock with their own money (through the Stock Purchase Plan)-a clear evidence of confidence in this Company. Just ask yourself if you would rather place your trust and money with Procter & Gamble or with the present Port Ivory union officers. While P & G was making a profit, how did the union officers manage your Union fund? Did the officers let their program of strife and litigation eat away the approximately $130,000 you have paid in dues since the last Contract was signed? THE RECORD The Union officer's record in the last two years is not changed a bit by imported letters campaigning for the re-election of the present officers at Port Ivory. Campaigning is one thing, but doing it in a Union Bulletin which is supposed to be factual is quite another. No matter how you slice it, the record of the present Union officers shows that their approach to problems has not obtained results, and will not obtain results in years to come ... . The Union officers like to take pot-shots at the economics of our business. Per- haps they should first look at the economics of their union organization and the results. Union dues have been increased over 250% since 1959. The results for the people?: JOBS-Fewer jobs. The 609 (surplus) department is the fastest growing department at Port Ivory. The Union is trying to prevent the Company from taking the actions essential to real employment security. WAGES-There is a wage problem because some P & G wages are far above the averages of other companies. ARBITRATION-There is no arbitration on matters arising when there is no Contract. While Union officers try to force P & G to arbitrate operating decisions ... they are leaving employees with no arbitration on anything .... PROCTER & GAMBLE MFG. CO. 409 BENEFITS-By turning down the Company's offer of added benefits, there has been a money-loss to every employee for the last eight months ... . YOU HAVE A CHOICE TO MAKE As, we have said before, you as individual employees must make a choice. This can't 'go on forever. The Company's bulletin of March 13, 1963, was devoted to arbitration, and argued that the "Union officers used poor judgment" when they "tried to get unlim- ited arbitration into the Contract by using legal action against P & G." It sum- marized six completed and two pending arbitrations, and concluded that "it is high time for the Union officers to realize they haven't gained anything with this approach in the past, and they can't expect to in the future." At the end of the bulletin was the following: Note: Issues have been raised about the Procter & Gamble Independent Union of Port Ivory, N.Y., which will be resolved in litigation pending against the Company 40. As has been set forth above (supra), in April 1963 company bulletins termed the Union's boycott of Dividend Day as "another example of immature and irre- sponsible Union leadership" and stated that the Union's "officers must be stoop- ing to a hollow threat" in stating in a union bulletin that the construction and bylaws "state that all members are bound" to support the decision to boycott Dividend Day. On May 14, 1963, the day before the union election, the Company issued a bulletin in answer to a union bulletin dated May 10 which had stated that the Company "have had to continue bargaining" because of the unfair labor practice charge filed by the Union (the first charge was filed March 4, 1963), and that in the' litigation in which the Company had sought to probe the incorporation of the Union and its true identity the Company's request "to see all our records, financial and otherwise, . was refused by the Courts . ." The Company's bulletin of May 14 denied that the filing of the unfair labor practice charge forced the Company to resume negotiations and stated that the court, 2 days before the date of the union bulletin, had ordered the Union to produce documents (a copy of the court order was attached). Further, the Company listed what it termed "serious questions which must be answered and inconsistencies which must be reconciled" concerning "the facts about the Union's incorporation." These were related to actions taken in the name of the unincorporated association following incorpora- tion, which the Company stated showed that "for the last 3 years the `Union' has been leading a `double life' for unrevealed reasons." The bulletin concluded with this: These Union activities may require the further attention of the U.S. Depart- ment of Labor, the U.S. Department of Justice, the Federal Courts, the National Labor Relations Board, and the State of New York. And the Union Bulletin had the nerve to accuse the Company of "hocus pocus" ! ! ! On July 24, 1963, the Union issued a bulletin sharply critical of the Company's alleged actions with respect to disciplinary cases, the wage survey, and overtime distribution. The bulletin stated that in "the year without a contract the Company has gone ahead and applied the Absolute Right without bothering with collective bargaining," and accused the Company of "ignoring all the ground rules" and using its "tremendous wealth and power" "to crush the independent spirit of its employ- ees and their unions." The bulletin continued: WHERE DO WE GO FROM HERE? Your last Union Executive Committee new the problems faced by the Union. The new Committee is .quickly becoming aware of them. The question now is what do we do. Only the members can decide. There are several courses open . To sign the contract giving the Company their "absolute right" 40 The reference, the first in a series, was to the litigation in which the Company had raised questions concerning the Union's incorporation and name change. Beginning with the bulletin of March 22, and until the Board on August 14, 1963, amended the Union's certification to substitute the Union's current corporate name for the name under which the Union had been certified originally and had carried on business, company bulletins uniformly carried a note stating that there "are questions" about the Union' s name "be- cause a union was incorporated in 1960 " 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has been flatly rejected by the membership in every case. Do we continue as we are without a contract and let the Company force its "absolute right" on us without benefit of collective bargaining; do we affiliate with the A.F. of L. or with the Teamsters in order to be able to meet with the Company on something like equal terms? It is the responsibility of your Executive Com- mittee to get all information to you pertaining to such moves. Only after you get this information can you decide which is the best course to take .... The Company replied in a bulletin dated July 30, 1963, regretting the "strong feeling against the Company" expressed in the July 24 union bulletin, stating that the "bitterness" therein shown "is a very bad sign" and that the bulletin contained "a mass of misstatement, distortion, exaggerations, and provocation against the Company," giving examples. The bulletin continued: Why was the Union Bulletin written when it is so obviously a misrepresen- tation? We think the Union Bulletin makes it apparent where some of the union officers have really been leading you with their program. They want you to abandon your independent union. Way back in January, 1962, we predicted that some union officers would try to take you into an outside union. The officers vehemently denied this at that time. However, as you can see, the Union Bulletin is now trying to make it appear that A.F.L. or Teamsters is the only way. The pattern of buildup for a move to an outside union is clear. 1. The union has insisted on discord. Instead of trying for agreement, the union has relied on court actions, arbitration, unfair labor practice charges, disagreements, no contract. 2. The union has inflamed-accusations, slogans, false statements, scur- rilous and provactive literature, hatred. 3. The union has tried to get you accustomed to action-strike vote, boycott of Dividend Day, amalgamation with some other P & G plants. These were supposed to be merely harmless action to help the union in bargaining. Now the Union Bulletin is preparing you for the real action- an outside union. As far as an outside union is concerned, we wish to make only one point, your representation is your business. But changing your representation to an outside union, be it AFL-CIO or the Teamsters, in no way changes the differ- ences to be resolved or the basic rightness of the Company's position. Threat or scare tactics do not produce sound, lasting relationships and the Company has not and will not yield to such tactics. Our objective, and we think yours, is to arrive at a sound contract with mutual advantages for both the Company and its employees. We think the best way to get such a contract is to get rid of prejudice, bitterness and per- sonal feeling-not increase it, as the Union Bulletin tried to do. The Union responded to this with a large fold-out bulletin reproducing the company bulletin of July 30 and the Union's bulletm of July 24, with marginal comments skillfully arranged and presented, and designed to support the statement on the outside of the bulletin that "Union Bulletin is conservative and informative. Company paper is full of accusations and wild guesses." The Company replied by a letter on August 9 to employees, stating that the "king-sized tabloid written in a highly professional manner . . . does not change the basic truths" of what was said in the Company's July 30 bulletin, and repeated the last two paragraphs thereof set forth above. The day after the September 5, 1963, bargaining meeting, at which the Com- pany gave the Union a complete contract proposal, the Company published a bulletin reporting the changes contained in the September 5 offer and expressing the view that it "appears that the 18 months of bargaining should soon be brought to a successful conclusion." On September 9 the Union published a bulletin, the cover page of which depicted a funeral wreath and carried the caption "Is Hope Dead for P & G Ever Again Bargaining in Good Faith?" The bulletin criticized the Company's proposals and expressed the view that the statement in the com- pany bulletin of September 6, that bargaining appeared to be reaching "a success- ful conclusion," could not have been made with sincerity in view of the fact that PROCTER & GAMBLE MFG. CO. 411 in the bargaining meeting on September 5, union representatives expressed shock at the Company's proposal .41 On September 13, the Company issued a bulletin answering the points made by the Union in its bulletin of September 9, and attrib- i ted the rejection of the Company's September 5 proposal to "the desperate efforts of some Committeeman who . . . do not want a new contract for your Union because a contract would stop any deal with the Teamsters or another outside Union." 42 On April 15, 1964,43 the Company presented to the Union a new complete con- tract, proposal reflecting a number of changes from the previous complete proposal of September 5, 1963. This proposal was rejected by the Union at the April 22 bargaining session, for 13 stated reasons, which were publicized in succeeding union bulletins. On May 12 the Union issued a bulletin announcing that its execu- tive committee had "voted unanimously to support the affiliation vote with the Teamsters." The bulletin of May 22 announced that the affiliation vote would be held June 16 and stated that with affiliation "we can get the benefits due us plus keeping our representation rights" while without the Teamsters "we will have to accept the Company's `exclusive rights."' The Union's bulletin of May 26 again listed the "principal obstacles standing between us and the signing of a fair con- tract," although reducing the number to 11, and stated that acceptance of the Company's proposed contract "would provide absolutely no protection to the employee as far as his job or his wages are concerned." On May 28, the Com- pany published a bulletin terming some of the "obstacles" listed by the Union as "distorted or untrue." The Company's bulletin stated: It is quite clear to us that the only reason we don't have a new contract signed is because your Union officers do not want a new contract. Why don't they? Because if a contract is signed they can't deliver your "affiliation" with the Teamsters-and that seems to be even more important to them at this point than getting greatly improved benefits for you in a new contract. On May 27 the Union issued a bulletin containing various arguments in favor of Teamsters affiliation. On May 29, the Company reprinted this bulletin with marginal and interspersed handwritten comments, the burden of which was to cast doubt on the wisdom of affiliation with the Teamsters. On June 8, 1964, the Company issued a bulletin defending its management rights proposal and arguing that employees "would have every job, wage and security protection you have ever had, plus added benefits." The Union answered this with a bulletin dated June 12, stating that Division Manager Quinn was "two-faced" and "has made a practice of saying one thing to your Executive Com- mittee in negotiations and another in his letter to employees," and that Mr. Quinn was "bargaining in bad faith" and "lying to the people." The Company's reply bulletin on June 15, the day before the union membership voted on affiliation with the Teamsters, denied these accusations and repeated the statement, quoted above, in the May 28 bulletin that the reason a new contract had not been signed was because the Union's officers wished to achieve affiliation with the Teamsters. u During the September 10 bargaining session, the Union complained bitterly about the Company's September 6 bulletin, contending that, in view of the Union's expressed dis- appointment with the September 5 package offer the Company's optimistic publication suggested bad faith. "The Union's bulletins of August 16 and 23 had announced that there would be special meetings on August 25 and September 15, to hear speakers from the Teamsters and the AFL-CIO, respectively. The August 23 union bulletin stated there were "many employees who feel that Hoffa's Teamsters are the only ones strong enough to be of assistance" while others "lean to the AFL-CIO." 43 After the September 10, 1963, bargaining session, the parties met for negotiations only twice during the balance of the year-on December 5 and 18, 1963 The next negotiation meeting was on February 18, 1964. Between mid-September 1963 and the end of April 1964, the Company issued, so far as the record shows, six bulletins and two letters : during approximately the same period the Union distributed eight bulletins. It seems unnecessary to discuss these in any detail, except to observe that in general they follow the pattern previously established insofar as negotiation matters are concerned. Those issued by the Union devote substantial space to efforts to amalgamate various P & G unions and to affiliate the Union with some AFL-CIO International or Teamsters. On February 26, 1964, so Union President Reed testified, the union membership voted 719 to 110 in favor of amalgamation. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Conversations between supervisors and employees relating to bargaining issues- The General Counsel presented some 20 employees who testified regarding vari- ous conversations and discussions with 14 supervisors, generally concerned with the status . of negotiations , specific proposals of the Company already made in bargaining with the Union and which were the subjects of extensive comment in the written communications dealt with in the preceding section, and the general economic situation at the Port Ivory plant. Two supervisors called by the General Counsel testified to discussions they had had with individual employees and groups of employees. The General Counsel asserts that these conversations were part of the course of conduct of the Company in undermining and bypassing the Union and also contained threats of job and other economic reprisals and promises of benefits unless or if the Union changed its position in negotiations, and included suggestions that employees select new officers of the Union to replace incumbent officers. Ralph Arentsen, a hardening operator who worked under Department Manager William Hart, testified that during Hart's period as department manager, which covered the period from November 1961 to December 1963, he had "quite a few discussions" with Hart, averaging about one per week, concerning "the union posi- tion and the company position during the contract negotiations" which were "included in union bulletins and management letters." Hart, according to Arentsen, stated, "about five or six months after he became department manager," that the Company "had never intended that everything should be arbitrable." On another occasion, which Arentsen placed in May 1963, before the union election on May 15, Hart, while distributing some company literature, stated to Arentsen and another employee, Al Lendezian, "that if the incumbent officers were unseated . it might have a bearing on union-management relations . that with new union- officials, it, would be quite possible that the attitude of the Union would change" and that "he [Hart] felt that the present union officials had a die-hard, unbending attitude." Arentsen and Lendezian replied that they did not think a change in officers would alter "the manner in which the Union would conduct its affairs." At a time which Arentsen placed in about August 1963, when there was `•`a good deal of discussion throughout the plant . . . about whether or not guaran- teed employment could be done away with," Hart and Arentsen had a conversa- tion in which they "were discussing union matters," during which Hart stated that guaranteed employment was a "company prerogative" and "could be done away with"; Arentsen replied that he did not believe "they would do away with guaranteed employment at Port Ivory." A "few months" before the June 1964 vote on affiliation with the Teamsters 44 Hart, according to Arentsen, told him and Lendezian "that if some of the union members would try and influence the officers, it might have a bearing in the negotiations insofar as . . . their attitude was concerned." Arentsen and Lendezian said they would not attempt to "influence anyone in this manner." Hart testified that during the period he was department manager he spoke about contract negotiations about once a month to each of the approximately 11 employ- ees in his department, initiating the conversations about half the time. He admitted asking employees how they felt about the Company's proposals and defending them as proper if employees expressed disagreement . He participated in conversations with employees about the lack of new products at Port Ivory "a very common question at that time," and expressed the view that the high cost of production and lack of a contract were responsible for this condition. He denied that he urged employees to put pressure on officials of the Union to accept the Company's proposals or expressed any opinion about Union President Reed. Three employees, Michael Zawada, Edna Fama, and Lawrence Popp, testified to conversations with David Pyle, a mechanical manager in the prepared mix depart- ment of the food plant. According to Zawada, who was a machine adjuster under Pyle's supervision, on an occasion in "about the middle of September of 1962" as he and Pyle were having a general discussion in the mechanical shop, Pyle "out of the clear blue sky" said that he could not understand why the Union did not accept the Company's contract proposal and that the situation the Union was creating was one reason the Port Ivory plant was experiencing layoffs and losing new products. 44 Arentsen testified Hart was his department manager from about March 1962 until July or August 1963. I have accepted Hart's testimony, that he was in that position from November 1961 to December 1963, as more reliable PROCTER & GAMBLE MFG. CO. 413 On cross-examination, Zawada stated the conversation occurred in March 1962, and on redirect corrected the date to "the latter part" of 1962, a "matter, of a few months" after the contract had expired, which on recross he placed at the end of April 1962; on further redirect he said that the conversation occurred "somewhere around" the time the strike vote was taken (August 15, 1962), "a little before that or a little after it." I find the testimony of Zawada as to the time of this conversa- tion too uncertain to warrant concluding that it occurred after September 4, 1962, the cut off date under section 10(b). Fama and Popp testified to a conversation with Pyle on March 28, 1963, in the recreation room in the basement of the plant cafeteria during a coffee break. As Fama, Popp, and another employee, Alice Janeczko, were seated talking, Pyle approached and joined their conversation. Some remarks were made about modern- ization of the plant and shrubs being planted, whereupon Fama said that "the decor was certainly improving but the policy toward the employees was going backwards." Pyle, who was not Fama's supervisor or previously known to her, rejoined that the Company was not going backward but was falling in line with other plants. Fama said she felt the Company was taking away employee rights. According to Fama, Pyle stated that a company with a choice of two plants in which to place a new product would choose the one with a signed contract as against the other where there was trouble; when Fama asked if Pyle was "trying to say it is because of our union that we are not getting any new products" Pyle replied "Right." She said the employees "would fight for our rights," and Pyle then said the plant would shut down. She replied that she would rather see the plant close than for the Union to sign the contract being offered. Pyle then asked Fama why she did not quit. Popp's version of the portion of the conversation that he heard was that Fama said to Pyle that it was not the Union's fault that Port Ivory was losing products, to which Pyle replied that it was definitely the Union's fault and said that the plant "would shut down if the Union kept fighting the situation." Mrs. Lucy Patino testified that she had approximately four conversations between January and March 1963 with her department manager, Robert McIntosh. In Jan- uary 1963, McIntosh joined Patino and another employee, Julia Biscopo, at lunch in the cafeteria. According to Patino, McIntosh "explained that they were going to eliminate jobs on account we were not getting any orders "and, in response to her inquiry why Port Ivory was not expanding, said it was "on account of the Union striking." Patino replied there would be no strike. Later, on March 14, 1963, McIn- tosh told Patino, in a conversation about job eliminations, that "because on account of the Union striking, that's why we canot get any more jobs." On another occa- sion, while the line was down, McIntosh called the group of employees together in the smoking room, passed out some company pamphlets "and then he was telling us about elimination of jobs and the cutting of costs and that there were going to be a few changes made in the department." Finally, Patino related that on another occasion McIntosh spoke to the four women in the department while the machines were down, "explained to us why they were cutting down, we have to cut down on cost, eliminating jobs, changing the working conditions," and said that the reason "we weren't getting any orders" was because of the "labor troubles." 45 Julia Biscopo testified that in about January 1963 she asked McIntosh why another job bid had been posted, stating she felt another girl was not required and that filling another job "would mean that I would lose my job eventually." McIn- tosh, according to her, "said that we had guaranteed employment there and I would still hold a job," and remarked that if the Company and the Union signed a con- tract more products would be brought to Port Ivory and more jobs would be available. Stanley Putkowski (also spelled Butkowski in the transcript), a mill operator in the milled soap department and a shop steward, testified that he and David Lord, manager of the department until January 1963, quite often discussed the collective- bargaining negotiations. Lord came to Putkowski, who was the shop steward, to discuss work problems. On one such occasion, which Putkowski placed as "probably October" of 1962, after they had discussed a shop problem, Lord remarked that "it is a shame to go through all this stuff . . . if we had a new slate of officers in the coming election, we would probably get a decent contract." It appears that Lord ''On cross-examination Patino said that the strike vote was "sometime in 1963," be- fore her conversations with McIntosh. She also stated, at variance with her direct testi- mony, that she could not remember McIntosh saying anything about the necessity of reducing costs. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Putkowski from time to time argued the merits of the Company's management rights proposal, Lord stating that "it is not so bad after all, you still have your job," and Putkowski expressing the view that if the proposal were agreed to "we wouldn't have any jobs left." James Lathrop, formerly a training -specialist in the industrial relations depart- ment, replaced David Lord as department manager of the milled soap department as of January 1, 1963. Thereafter, Lathrop and Shop Steward Putkowski had fre- quent occasions to discuss shop problems and matters relating to negotiations. According to Putkowski, on a particular occasion in January 1963, Lathrop "said if you guys would only accept what's being offered to you, we might get some new product around here and more work." He then testified as follows: Q. You said you had many conversations with Mr. Lathrop. A. Almost every day. As a steward, it was required. Because we were going through a difficult period. Q. Did you discuss contract negotiations in these discussions with Mr. Lathrop. A. Almost all the time. Q. Who would raise the topic? A. He would raise the topic. It was always him raising the topics, about the topics, about the clauses, the union contract, the officers. Q. And did he raise the subject of contract negotiations in all of these discussions? A. Well, not all the time, but most of the time. * * * * * * * Q. Do you have a definite recollection of individual discussions on contract items? A. Well, these talks took place every day. I couldn't say what took place on a specific date, when you are just talking to someone, but there were times when he comes on the platform and we discussed a soap problem or a union problem and invariably, he would bring up the subject of the contract and the union officers and the working conditions. This occurred almost daily. Q. When you say he brought up the subject of union officers, what do you mean? A. Well, he wasn't happy with the officers we had in office right now, who were in office at that time, although he didn't mention specifics. He said if there was a new group in there, maybe we'd be getting something done or if this would happen or if that would happen. It was so vague that it was very hard to put your finger on anything, actually. As a customary practice, department managers held monthly meetings with employees in their departments to discuss safety matters. After he became manager of the milled soap department in January 1963, Lathrop conducted such meetings in January, February, and March and during the latter part of each meeting he and his employees engaged in a discussion of the Company's contract proposals.46 Lathrop took the initiative in these discussions, according to the testimony of a number of employees 47 who were questioned about them; Lathrop testified he talked to employees (apparently on an individual basis, apart from the safety meetings) about contract negotiations if an employee had previously indicated an interest in talking to him about that subject. At the January and February safety meetings, after concluding the discussion of safety items, Lathrop invited questions from the employees about contract negoti- ations, the state of the business, and working conditions. In each instance, employees asked questions indicating concern about the effect of certain company proposals such as the management rights clause as it affected job rights. Lathrop defended the proposals and sought to reassure employees, in general using arguments similar 49 His predecessor Lord had not discussed negotiation issues in safety meetings. 471n addition to Putkowskl, the following employees testified about the meetings con ducted by Lathrop : George Bernard, Anthony Caputo, Pasquale Danna, Frank Lignori, and Raymond Meurer. Lathrop was also called as a witness by the General Counsel. The find- ings as to the statements made at these meetings are based upon a synthesis of the testi- mony regarding them, which is generally consistent in broad outline although the witnesses differed as to some details. PROCTER & GAMBLE MFG. CO. 415 to those in bulletins distributed by the Company during that period. Questions were asked, both at the meetings and in conversations following them, about guaranteed employment and why, if the Company' stressed it so much as a protection for employees in their jobs, it was not written into the contract.-At the two safety meetings on March 28, 1963, Lathrop reviewed with employees whether they thought specific matters involving conditions of employment were or were not arbitrable under the Company's contract proposal, as this was a subject on which, in -Lathrop's words, there was "a good deal of confusion in everybody' s mind." 48 As he covered each of the various topics, Lathrop would ask employees generally whether they thought the matter would be arbitrable under the Company's proposal, different answers were given in some instances, questions were asked, and Lathrop expressed his opinion not only on whether items were susceptible to arbitration but on other questions raised by employees. After the meeting, employee Caputo spoke to Lathrop about why guaranteed employment was not placed in the contract, the extent to which the Company could contract out jobs under its proposal, and other like issues in negotiations. Lathrop made no reply to his inquiry concerning guaran- teed employment or to Caputo's further question whether the Company, by its arbitration proposal, was attempting "to restrict the union officials, or . . . to hurt the people and not let them get good protection." Caputo, a strong union adherent, who said he had no hesitancy in discussing these matters with Lathrop, plainly was not particularly impressed with Lathrop's exposition of the Company's proposals for he testified that Lathrop "has never given me a definite answer on any questions that I have ever asked him." Employee Dana, in November 1963, shortly before the rerun election on November 20, had a conversation with Lathrop in which Lathrop asked him how he thought the election would come out and who he thought would win. Danna said he thought Union President Reed would win, that he believed in what Reed was doing, and that anti-Reed members of the executive committee, whose opinion of Reed he had solicited, all agreed "that Reed was putting out the truth in the bulle- tins." Lathrop, according to Danna, "said that Reed has a very strong and per- suasive personality and he had convinced these people to his way of thinking" but that he (Lathrop) thought "that Reed was leading the people astray." Danna testi- fied he then asked Lathrop "are you trying to say Reed is some sort of Svengali?" to which Lathrop replied in the affirmative and Danna "looked at him and just walked away." - I have not overlooked the testimony of a number of other employees regarding conversations with supervisors 49 These were of no special significance and, in my opinion, contain nothing that impinged upon the Section 7 rights of employees. Beyond noting that I have considered the testimony, which I credit, as to these conversations and that I find nothing therein violative of Section 8(a) (1), it seems unnecessary to make more detailed findings with respect to them. 5. Conclusions as to communications In my opinion the Company's written and oral communications to employees, considered as a whole and in the factual context in which they were made, were protected by Section 8(c) of the Act and were not, singly or in totality, independ- ently violative of Section 8(a)(1) of the Act. I so find. 4e Two days prior to the March 28 safety meetings Lathrop had attended, with two other department managers and three industrial engineers , a meeting with his group manager, Richard LaGreze. At that time LeGreze had reviewed with the management personnel the Company's arbitration proposal and the arbitrability of various items. Lathrop made notes and used them in the subsequent discussion he had with employees. On March 18, 1963, the Union had published a bulletin quoting the complete text of the bargaining session of July 30, 1962, primariy devoted to a discussion of the Company's management rights and arbitration proposals. The Company's bulletin of March 13 , 1963, as noted above, was devoted to arbitration , and argued that the "Union officers had used poor judgment" in attempting to "get unlimited arbitration" by."using legal action." The same theme was used in the Company's bulletin of March 22, 1963, and said we have stated we would agree to arbitration on Contract matters." 49 Specifically, the testimony of conversations between Chester Antczak and August Holderried, and Department Manager Robert Davidson ; Holderried and his foreman, Michael Zagurek ; Edgar Jotzat and his foreman, William Beckmann ; Thomas Brown and Group Manager Jack Boom, and Louis Rivera and Department Manager Wickermeyer (these occurred prior to the Section 10(b) period) ; Anthony LaGotta and Kenneth Foster, a mechanical group manager ; and LaGotta and Manager Charles Slosser. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The record here *shows that both the Union and the Company have customarily and over the long period of contractual relations engaged in public discussion of matters bearing upon their collective-bargaining relationship, freely communicating to employees their points of view and opinions. Indeed, the parties had a practice, as Union President Reed testified, of giving each other copies of literature that each was distributing to employees. An employer is not foreclosed from com- municating to his employees his positions on subjects involved in bargaining, nor is it illegal for him to report to employees on the progress of bargaining, to express opinions regarding the proposals and positions of the collective-bargaming represent- ative, or to criticize the Union with which he deals or its leadership. To be sure, a communications program, while not illegal per se, may reflect a bargaining frame of mind not compatible with the good-faith collective-bargaining obligations of the Act-and in later weighing this aspect of the case it will be necessary to consider the Company's literature and oral communications as they bear upon the issue of good or bad faith; presently, however, the question is whether the written and oral statements interfered with, restrained, or coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. I find no express or implied threat of reprisal or promise of benefit in any of the written or oral statements set forth above, considered singly or in combination. Accordingly, I find that the Company's communications to employees were not violative of Section 8(a)(1) of the Act. I. Analysis and concluding findings as to alleged overall bad-faith' bargaining We come then to a consideration of the board allegation of the complaint that the Respondent, from and after September 4, 1962, the earliest date that conduct can be found violative of the Act under the limitation provision of Section 10(b), negotiated with the Union in bad faith. This allegation places in issue the Company's overall course of conduct, both at and away from the bargaining table, as it bears upon the Company's frame of mind during the legally cognizable period of negotia- tions, and, as well, requires assessment of conduct anterior to the statutory cutoff date insofar as relevant to what transpired thereafter. Included within the frame- work of this broad issue are the numerous specific allegations of the complaint setting forth independent violations of the Act, some of which have been considered and ruled upon in preceding sections of this Decision. We first deal with the allega- tions that the Respondent's bargaining procedures were violative of the Act. 1. Alleged refusals to meet, requiring concessions and answers, and delaying negotiations pending internal union elections The amended complaint alleges (paragraph 15) that since about January 11, 1963, the Respondent unlawfully "refused to meet and negotiate with the Union for periods of time after having made new proposals . . . , has required concessions and changes in the Union's bargaining position as a condition of holding collective- bargaining sessions with the Union, and has required and insisted that the Union give answers to new proposals . without affording the Union adequate oppor- tunity to consider such proposals." Paragraph 16 alleges that from January 11, through June 20, 1963, and from September 10 through December 5, 1963, the Respondent unlawfully "delayed meeting and negotiating with the Union until internal Union elections were held." The January 11, 1963, bargaining session was the 50th negotiating meeting of the parties. On that day and the meeting on the preceding day, the parties reviewed all their outstanding proposals, but devoted most of their discussion to the Com- pany's management rights and arbitration proposals, which for months had been the fundamental issues between them. As summarized above (section III,E, et seq.), when the January 11 meeting ended Quinn for the Company declined to set a specific date for a further meeting "unless there is some modification or change of position anticipated by either side of the table," adding that while he was not "proposing suspension of these negotiations" and was available to meet, he felt that "to continue to go over the same thing time and time again, as we have done, serves no useful purpose." In a letter to Reed dated February 1, Quinn advised that with respect to the problems involved regarding wage survey, which had been the subject of discussion at the last two meetings and of subsequent correspondence, the Company was "perfectly willing to bargain with the Union about any point connected with wage survey" and suggested that since "another date for a con- tract negotiation meeting has not been established that the Union should write to 'PROCTER & GAMBLE MFG. CO. 417 me any proposals which it has about wage survey," so that he could "determine what further bargaining arrangements should be considered in order on this subject." On February 11 Ouinn wrote a lengthy letter to the Union, quoted above, in answer to the Union's February 6 letter requesting resumption of negotiations. Quinn expressed the view that the major points of difference were such that "no good purpose would seem to be served by establishing another meeting date." He said that it was doubtful that the Union's economic requests, to which the Com- pany had not agreed, "can be considered major differences," but that the significant issues "must be considered as those in the areas of management's operation of the Port Ivory plant." He concluded that he was willing to meet "when convincing evidence is presented . that to do so would be worthwile in reaching agree- ment on our major points of difference"; and that until such time "we must con- sider our bargaining closed" as bargaining "does not require endless and fruitless argument." The Union did not answer Quinn's February 11 letter until March 1, when Reed wrote that he did not believe the state of negotiations "indicated an impasse," requested resumption of meetings, and without particularization stated that the Union was "prepared to drastically modify" its proposals. Quinn replied on March 11, urging that the Union "set forth in writing what specific modifications of position" were contemplated. In an answer on March 18, the Union listed five of its economic proposals it was prepared to withdraw, but made no comment about the key arbitration and management rights issues. On March 20 the Com- pany proposed a meeting on March 28. When the parties met on March 28, 1963, Quinn submitted a written summary of the Company's proposals and suggested that the parties "recess for forty-five minutes while you consider these proposals, and at that time we will resume our negotiations." Upon resumption of the meeting after the recess, the Union pro- tested that it had not had sufficient time to consider the proposal; Quinn stated that if the Union had questions about the March 28 written proposals (which were essentially the same in substance, aside from some explanatory wording, as the Company's prior proposals, except for the wage survey item), he was present to answer them and urged the Union to make the questions "specific and let's proceed with our bargaining." Very little time was spent in questions about the Company's proposal, as Reed for the Union then read into the record the full text of some 19 `.official interpretations" and indicated his intention to do the same with the side agreements the Union wished to have incorporated into the contract. After Reed had read the official interpretations, all but one of which Quinn agreed to consider for inclusion in the contract, Quinn suggested that the better procedure would be for Reed to submit the side agreements in writing for consideration. When Reed persisted in reading them into the negotiation record, Quinn adjourned the meeting. As outlined in a preceding section (section III, E), the Union on April 9 and 12, 1963, submitted a list of some 69 side agreements. On April 9 the Company wrote the Union stating its position on the 19 "official interpretations" read into the rec- ord on March 28, and on April 17 the Company wrote that it would "proceed as rapidly as we can" to consider the side agreements. Quinn closed his April 17 letter by asking to be notified at once if he was incorrect in assuming that "even if I were to agree to include your requested ` agreements' we would still be far from reaching agreement on a new contract." In a reply on April 30, Reed argued that the "only road block is the Company's insistence on its unilateral right to contract out work of the bargaining unit, change jobs, change classifications or discontinue classifications without the Union having the right to grieve," and said that Quinn's assumption concerning remaining areas of disagreement was correct "only if the Company continues to insist that the collective bargaining contract when signed, will free the . . . Company from the obligations of genuine collective bargaining." On May 28, 1963, as set forth above, the Company in a letter stated in detail its position on the 69 side agreements, and advised the Union that it was available for a meeting. In his response on June 5, Reed declined to request a date for a bar- gaining meeting , but stated he was available "at the plant at your convenience for the purpose of reviewing negotiations with the hope that perhaps at this late date bargaining in good faith might appear." Quinn responded on June 11, suggesting a meeting on June 20 or 21, and declining to comment on Reed's "baseless charac- terization of the Company's bargaining posture" because he felt "it is more impor- tant to take any possible positive step toward reaching agreement on a new contract." 257-551-67-vol. 160-28 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The parties met on June 20, and in a full day session discussed various aspects of their differences. On adjourning, they set no date for resumption of negotiations, but Quinn agreed to get in touch with the Union regarding further bargaining after the first of July.50 They next met on August 22 and 28; so far as the record shows, there were no requests made by either party for resumption of negotiations in the 2-month interval after June 20. As has been summarized in an earlier section, at the two August meetings the parties discussed the possibility of modifying the grievance procedure to provide that the Company "agrees" that unfairness shall not exist and to incorporate some form of arbitration as to "unfairness" issues. They recessed on August 28 with the understanding that at the next meeting on September 5 the Company would state its position on the several issues separating them and particularly the proposal that it "agree" not to be unfair and that "unfairness" issues be arbitrable. The Company did set forth a complete written proposal at the September 5 meeting, which was discussed in considerable detail at this and the succeeding meeting on September 10. At the conclusion of the latter session, Quinn stated that if the Union had a counterproposal to make he would be happy to receive it, but that "at this point in time, in view of everything that has happened here, I fail to see where we could gain anything by continuing tomorrow," in the absence of "some assurance of a constructive modification of position on one side or the other." Eight days later, on September 18, Quinn wrote to Reed suggesting a meet- ing after September 25 if Reed felt that "a constructive purpose would be served by such a meeting." In his reply of September 25, Reed avoided mentioning a date for meeting, although he suggested that the Company "set forth clearly any changes it desires from the expired contract" and said that the Union was willing to meet. The next communication relating to a bargaining meeting was on October 15, 1963, when Quinn wrote to Reed stating that Reed "should notify me of what you have in mind to negotiate and the date you wish to meet." Reed answered on Octo- ber 22,-again avoiding setting a date although stating that the Union was ready to bargain "at any time and any place that is convenient to you." In his letter of Octo- ber 15 Quinn had stated that a review of recent negotiation sessions and the Union's recent correspondence and publications indicated that the Union felt that the parties could not "reach agreement in negotiations for a new contract at this time," a statement which Reed in his reply characterized as a demand by Quinn that the Company be subjectively satisfied that the Union was being constructive before bargaining could be resumed. On November 25 Quinn wrote Reed suggest- ing the parties meet on December 5, and Reed accepted. At the two meetings on December 5 and 18, 1963, alternative proposals by the Union in the area of managements rights and arbitration were discussed, as well as the Company's no-strike proposal. The parties agreed to meet after the first of the year, the exact date to be arranged, at which time the Union would present its modified no-strike clause. No January 1964 meeting was held, as the Union desired to postpone negotiations until after the Company had met with representatives of the General Counsel on the Union's then pending charges. After the original com- plaint was issued on February 4, 1964, the parties met on February 18 and there- after as outlined in section III, F, above, et seq. 'Considering the facts relating to the specific allegations in paragraphs 15 and 16 of the complaint in the total context of the negotiations between the parties and the events attending these negotiations, I find that the Respondent has not violated the Act in the particular here alleged. Wholly aside from the question whether the parties had reached a bargaining impasse prior to January 11, 1963, the facts in my opinion do not establish that thereafter the Respondent "refused to meet and negotiate . . . for periods of time," "required concessions and changes" on the part of the Union "as a condition of holding collective bargaining sessions," or "required and insisted" that the Union answer company proposals "without affording the Union adequate oportunity to consider such proposals." The 50th bargaining session ended on January 11, 1963, with Quinn declining then to set a particular date for further negotiations, as he felt that "to continue to go over the same thing . . . serves no useful purpose"; he stated he was not refusing to meet, but was of the opinion that it would be fruitless to do so until "there is a possibility of either side making a modification in position which will be constructive in reaching a new agreement." Later on January 25 and February 1, Quinn wrote to Reed on the wage survey and what he termed the w The annual 2-week shutdown period occurred the first 2 weeks in July. PROCTER & GAMBLE MFG. CO. 419 Union's "new and different bargaining approach" on the, matter, requesting that the Union state its proposals on that issue in writing. The Union's letter of February 6, requesting resumption of negotiations, did not indicate ;wherein the Union had altered its position after the January 11 meeting but expressed the general view that "continued meeting would serve a constructive purpose." To this the Company replied at length on February 11, outlining the major areas of dispute and express- ing willingness to meet "when convincing evidence is presented . . . that to do so would be worthwhile in reaching agreement," but stating in effect that until either side made a move in the area of the "major points of difference" the bargaining should be considered closed. Although the Union did not, in its subsequent requests to resume bargaining, indicate any change of position on the key issues, neverthe- less the Company on March 20 proposed that negotiations be resumed on March 28, at which time the Company gave the Union a written summary of its proposals. Viewed against the extensive background of negotiations over a period of 10 months and 50 meetings, and also in conjunction with protracted meetings that thereafter occurred, involving substantial alteration in its position, the Respondent's posture during the period immediately after January 11, 1963, cannot properly be regarded as violative of Section 8(a) (5). The Respondent did not foreclose further meetings, although it did express the view both at the end of the January 11 meet- ing and in its letter of February 11, that until and unless either side modified its position in the management rights arbitration area, further meetings seemed fruitless. In point of fact, the Respondent did arrange to meet on March 28 although the Union had not indicated that it was altering its position on the fundamental issues. In sum, the facts do not support the allegation that the Respondent "refused to meet and negotiate" or "required concession and changes . . . as a condition of holding collective bargaining sessions." Equally without support is the concluding allegation in paragraph 15, that the Respondent "required and insisted" upon union answers to company proposals with- out affording the Union "adequate opportunity to consider such proposals." As I understand this allegation, it relates to what transpired at the March 28, 1963, meeting. As has been set forth above, Quinn for the Company handed the Union a 4-page summary of the Company's proposals, and suggested a 45-minute recess while the Union's negotiators considered them, after which, he said, "we will resume our negotiations." After the recess, Quinn asked whether the Union accepted or rejected these proposals. When the Union objected to the short time given to consider them, Quinn made clear that he was ready to answer questions. There followed relatively brief discussion of the 4-page summary, as Reed for the Union began reading.into the negotiation transcript the "official interpretations," 19 in number, which the Union desired to have incorporated into the contract. When Reed made clear that he proposed to follow the same procedure regarding the much more numerous "side agreements," and refused to accede to Quinn's sug- gestion that he submit them in writing for consideration, Quinn adjourned the meet- ing. I think this episode falls far short of amounting to a requirement or insistence on the part of the Respondent that the Union answer its proposal after the 45- minute recess. Paragraph 16 of the complaint alleges that the Respondent unlawfully delayed meeting and negotiating with the Union from January 11 through June 20, 1963, and from September 10 through December 5, 1963, until internal union elections were held. The elections took place on May 15 and November 20, 1963, the second being a rerun of the first, made necessary because the earlier election failed to comply with the requirements of the Labor-Management Reporting and Disclosure Act of 1959. Following the negotiating meeting on January 11, there was only one meeting-on March 28-prior to the meeting on June 20, 1963. After the meeting on September 10,, there was no meeting-until the one on December 5, 1963. The lack of bargaining sessions during these two periods, according to the General Counsel, is attributable to the Respondent's desire to delay further meetings until the results of the Union's internal elections became known. I find no support in the record for so concluding. Following the March 28, 1963, meeting, the Union by letters dated April 9 and 12 submitted to the Company 69 "side agreements" which it'desired to have incor- porated in the contract. On April 17, the Company advised that it would proceed as rapidly as possible to consider them. On May 28, the Company wrote to the Union stating its position on the 69 "side agreements" and expressing its willingness to continue negotiations. Between April 17 and May 28 the Union sent three letters to 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Company, but in none of them did it press for a resumption of negotiations. In reply to the Company's May 28 letter, Reed stated he was available for negotia- tions, but did not suggest a date therefor. It was Quinn, in a letter dated June 11, who suggested meeting on either June 20 or 21. After two meetings in August, the Company on September 5 submitted a com- plete written contract proposal, which the Union rejected at the September 10 meet- ing. The session on September 10 ended with no arrangement for a further meet- ing. However, Quinn on September 18 wrote to Reed stating he was available for bargaining after September 25, to which Reed replied on September 25 stating the Union was available for meeting but refraining from suggesting a date. On Octo- ber 15 Quinn wrote to Reed stating "when you wish to bargain again for a new contract, you should notify me of what you have in mind to negotiate and the date you wish to meet." In his answer of October 22, Reed said the Union was "ready to bargain at any time and any place," but again did not suggest a date. On November 25, Quinn suggested a meeting on December 5, which Reed accepted. In sum, I find that the record does not substantiate the allegations of the com- plaint that the Company refused to meet and negotiate with the Union during cer- tain periods, required concessions and changes in the Union's bargaining position as a condition for further meetings, insisted upon answers to company proposals without affording adequate opportunity for their consideration, or delayed meeting and negotiating pending the holding of internal union elections. 2. Alleged refusals to bargain on specific proposals, and unilateral actions a. Specific proposals The General Counsel, in paragraphs 17 and 18 of the complaint, alleges that the- Company, since September 4, 1962, refused to negotiate with respect to inclusion in the new agreement of (a) the guaranteed employment plan, and (b) the various "agreements, understandings, and interpretations arrived at in meetings between Respondent and the Union, which had been proposed for negotiation by the Union at the bargaining session of March 28, 1963, and in the Union's letters to Respond- ent dated April 9 and 12, 1963." Although the facts relative to these subjects have been set forth in earlier sections, at this point it becomes necessary to evaluate the thrust of the specific allegations. As we have seen above (supra), the Union's initial proposals did not seek to, incorporate into the contract the Company's longstanding, companywide plan of guaranteed regular employment. Indeed, the first mention of it in negotiations occurred at the August 23, 1962, bargaining session. At that meeting, in the course of a discussion about the Company's management rights and arbitration proposals, and particularly the relationship of the no-strike clause to them, Mr. Loftus, the- Union's attorney, asked Division Manager Holditch whether the Company would; agree that the Union could strike over matters excluded from arbitration. Holditch replied that the guarantee of employment "should be adequate protection" for the Union, and that therefore the Company was not agreeable to altering the no-strike- clause as Loftus had suggested. At this juncture Loftus referred to the fact that the guarantee of regular employment "is discretionary," and asked whether he was cor- rect "in assuming that now you are making guaranteed employment a definite part of the contract." Holditch replied, "This is not the case," and that he "cannot end' it." Thereupon Loftus suggested that, since this was a matter not within Holditch's control, bargaining should be transferred to Cincinnati so that the Union could. deal "with those people who make those decisions" and in a final attempt to avoid' "the conflict that is almost imminent." There was no further discussion, at this point in the negotiations, about including guaranteed employment in the contract. The subject next arose over a year later, at the September 5, 1963, bargaining session. During a discussion of the Company's management rights proposal, Union Committeeman O'Reilly asked Quinn whether, in view of "this mass contracting out of work, where it could create a surplus of 600 people," 51 the Company wouldi "still honor the guaranteed employment." Quinn answered that while he doubted "the propriety of that particular question in this meeting," the plant was company wide "and we have honored it since 1923 or whenever it was conceived." Mr. Lof-- en The record discloses no factual basis for the assumption that the surplus pool was likely to increase to the extent indicated by O'Reilly. It will be recalled that after the- close of the hearing the issue of contracting out of work, much litigated during the hear- ing, was removed from the case upon motion of the General Counsel. See footnote 2, supra.- PROCTER & GAMBLE MFG. CO. 421 tus said that the question raised by O'Reilly "is directly related to the problems" under consideration, and the following then ensued: Mr. LOFTUS: . What you are being asked is: Will this same plan con- tinue for the life of the contract? The question is certainly a very vital one. I don't know whether or not you are free to answer it. Mr. QUINN: I am sure, Mr. Loftus, you understand-not that I am trying to evade answering the question, but I am sure you understand my position on such a question. We' have touched on guaranteed employment, we have ac- knowledged the effect in our situation in the factory. But that's as far as our .discussions have ever gone, and therefore I just doubt the propriety of it at this point in time. That's my feeling. I just don't want to get into that discussion simply because it's not contained in our proposal, nor has it in recent discus- sions been contained from your side of the table. I understand why the ques- tion is posed. I certainly appreciate that. But I am not prepared to discuss that at this point. After the foregoing, the parties then went into a discussion of the incorporation of the various "side agreements." At the December 5, 1963, bargaining session the following brief exchange occurred between Quinn and Reed: Mr. QUINN: All I'm simply asking is for evidence which I would consider as a modification of your position at the time you left the last meeting. That's all I am asking for, Bob. Mr. REED: Would you be willing to put guaranteed employment in the con- tract? Mr. QUINN: At this time, no. I'll have to know what it would buy, Bob. Mr. REED: It would buy the labor of all our members. That's what it would buy. Mr. QUINN: When you ask me would I be willing to do something, there are concessions and counter concessions, and each thing has a price on it. Let's be very factual. The discussion continued, Reed reiterating that by placing guaranteed employment in the contract the Company could expect to receive the labor of the employees. At no point did- the Union indicate in what way, if any, its proposals or position would be modified in the event the Company were agreeable to including in the contract something regarding guaranteed employment. Nor did the Union, in the long course of bargaining, make any specific proposal as to how it would transform the guarantee into a contractual provision. Considering all the evidence relative to this subject, it is clear that the Union made no request that the guarantee of regular employment be included in the con- tract prior to the isolated and vague inquiry made by Union President Reed during the December 5, 1963, meeting. The Company did not then refuse to consider cov- ering this matter in the contract or to negotiate about it; Quinn's reply to Reed on December 5 was that he would "have to know what" inclusion of the guarantee in the contract "would buy" in the form of concessions by the Union. Thereafter the matter was not further pursued. I find, accordingly, that the allegations of para- graph 17 concerning a refusal to negotiate about the inclusion of guaranteed employment are unsupported. I find equally without merit the allegation that the Company refused to negoti- ate about the inclusion of the various "side agreements." This proposal had its genesis in the Company's arbitration proposal, first made on the opening day of negotiations- April 10, 1962-and thereafter amplified and modified, that only grievances having to do with the interpretation or application of an "express" contract provision would be arbitrable. As has been set forth above, the "side agreements" were referred to from time to time in the negotiation sessions during 1962, but it was not until March 28, 1963, and thereafter, that the Union began, in a somewhat haphazard fashion, to specify the precise "side agreements" it desired to have included. During the May 22, 1962, bargaining meeting Reed expressed the view, fre- quently reiterated during the negotiations, that the practice of the parties over the years had been "that not only wasn't it necessary to put everything in the contract, but it wasn't practical," and further stated that if the Company persisted in its express provisions proposal, it would be necessary to "pick out every single pro- cedural item concerning wage survey and everything else, and we'll get a [contract] book that's five times as thick as" the printed 1960 contract.52 At the June 12, 1962, meeting Division Manager Holditch stated he was willing to consider for inclusion 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the contract such matters as the parties had in the past agreed upon but had not incorporated as amendments to the basic agreement. During the June 19, 1962, session Reed stated that the "one hundred and one things that are not in our con- tract . . . are as binding, if not more important, as any words that can be put in the contract; he suggested, with evident conviction, that if the Company were in fact desirous of making the basic contract the sole repository and reference of the parties' total agreements, then the Company should "submit a contract to us . with everything in it." On August 10, 1962, as found above, the Company proposed that the parties review, at some point, all so-called " agreements" and practices out- side the written contract to determine which were still applicable and whether the parties were in accord on their meaning and current usefulness . The Union indi- cated that, in its view, the appropriate time to review these matters would be after the new contract had been signed. As has been found above (supra), the March 28, 1963, meeting was the first occasion that the Union began to specify the "agreements" it sought to have included, Union President Reed reading the full text of 19 "official interpretations" into the negotiations record, asking after each one had been read whether the Com- pany agreed to the item. Quinn objected to Reed's stated intention next to read verbatim into the record an unspecified number, of "agreements," beginning with a 1951 item, and Quinn then adjourned the meeting, after unsuccessfully urging Reed to submit them in writing for consideration.53 The Union thereafter acceded, albeit reluctantly, to Quinn's request for docu- mentation of the text of the "side agreements," and on April 9 and 12, 1963, sent the Company 69 proposed items for inclusion in the contract (in text covering some 20 pages). In the meantime, the Company on April 9 had written to the Union stating its position on the 19 "official interpretations" Reed had read into the record on March 28, agreeing to include most of them in the contract. The Company wrote to the Union on April 17, stating it would study the so-called "side agreements" as quickly as possible, although it noted that they "do not lend them- selves to cursory examination." On May 28, 1963, the Company, in an 11-page letter, stated its position on each of the 69 items and pointed out, in rejecting most of them, that many were unnecessary or obsolete, some did not constitute an "agreement," and others were in conflict with the Company's management rights proposal. About 10 percent were accepted in rewritten form. The Company stated that it was "available at any reasonable time" for further bargaining. Between June 20, 1963, and February 18, 1964, only seven bargaining meetings were held (June 20, August 22 and 28, September 5 and 10, and December 5 and 18, 1963.). At the June 20, 1963, meeting, the first after the Company had in its May 28 letter stated its position in detail on each of the 69 "side agreements," the Union suggested a joint subcommittee be constituted to go over the "official inter- pretations" and "side agreements." Quinn stated, after considering the proposal, that he thought nothing could be accomplished in then reviewing all of these items in view of the basic disagreement over the management rights clause. At the August 22 meeting, Reed again adverted to his subcommittee proposal. When Quinn pointed out that the Company's position had been stated in writing on each of the items, Reed expresed a willingness "to modify our position" on items to be included in the express provisions of the contract. Quinn said he was there to bargain, if Reed wished to become specific. Instead of modifying his position, however, Reed pro- ceeded to argue in favor of a particular "agreement" relating to the duties of pipe- fitters, a matter closely affecting himself; in reply, Quinn said he had rejected this item in his May 28 letter as being too restrictive in view of the management rights proposal of the Company.54 52 Cf the exchanges about the proper scope of the arbitration provision in the 1960 con- tract ( section III , B, supra, et seq.). ea It may be a tenable inference, as suggested by the Respondent in its brief that Reed for the Union , by his tactics during the March 28 meeting, "was attempting to lay an evidentiary groundwork for his [overall bad-taith bargaining ] charge" that had been filed earlier that month. I think it unnecessary , however, to consider drawing this inference, although I note that in the several amendments to the original charge filed after March 28, 1963 , no claim is made that the Company had refused to bargain about "side agreements" or "official interpretations." 54 it is apparent from the negotiation transcript and other points in the record that the Union entertained the notion that the only way in which the statutory bargaining obliga- tion regarding "side agreements" and official interpretation " could be discharged was by what Reed termed "face to face" discussion. PROCTER & GAMBLE MFG. CO. 423 On August 28, Reed asked about his subcommittee proposal . The parties began a discussion of particular "side agreements ," and Quinn said that, "if these are to be . . . attached to the contract and become part of the express provisions of the contract, . we must make some provision for review." He said that he saw no point in continuing the discussion on that particular day, but acknowleged that "as we get closer and closer [to agreement] . . . these things must be resolved." At the next meeting on September 5, which was devoted principally to a consideration of the Company's complete written counterproposal submitted that day, Reed asked whether the parties could go over the "agreements " at another meeting. After some discussion, in which Quinn indicated that "at the , proper time I think that would be in order," Reed summarized the mutual understanding by stating that the parties "will get to agreements later then as part of the entire package." Nothing was said about "side agreements" during the September 10 meeting. Union President Reed started the December 5 meeting with a general request to discuss the "side agreements." Quinn stated that before indicating a willingness to do so he needed further assurance that the Union had constructive suggestions to offer in the areas where the parties admittedly were in major disagreement. Quinn said : At this point in time I am not willing to consume the effort and time to con- sider each of these items ." (Emphasis supplied.) The subject of "side agreements" was not discussed at the December 18 , 1963, meeting. When the parties next met on February 18, 1964, they began with a discussion of specific "side agreements," which continued through the next 4 meetings (the last being on March 5 , 1964), and is recorded in some 800 pages of negotiation tran- script. In the contract that was ultimately signed on September 28, 1964, about 20 of the "side agreements " and "official interpretations" were included as express pro- visions added to the agreement. In my judgment, the inescapable conclusion to be drawn from the foregoing undisputed facts is that the allegation in paragraph 18 of the complaint is not sup- ported by anything approaching a preponderance of the evidence when the record is considered as a whole. Only by a myopic reading and a fragmentized considera- tion of the relevant discussion , plus a hypertechnical legal assessment of the facts, could a conclusion supportive of this allegation be reached. I accordingly conclude, without further rationale-because I think it superfluous-that the Respondent did not refuse to negotiate about "agreements , understandings and interpretations . proposed for negotiation by the Union at the bargaining session of March 28, 1963 ...." b. Unilateral acts I have chosen to include in this summary subsection a discussion of a number of unilateral acts of the Respondent which, for the most part, occurred during the period after January 1963 . These include : ( 1) the suspension of the continuing application of the wage survey in February 1963; (2) the impact of several "requests" for wage survey information; (3) the limitation on grievance investiga- tion by members of the Union 's executive committee, announced on February 25, 1963; and (4) the inferences to be drawn from the Respondent's actions with respect to (a) the surplus pool and its related impact upon the critical issue between the parties stemming from the Respondent's management rights proposal, and (b ) the correction of deviations in time bonus administration in January 1964. I have concluded above that the Company' s actions relative to allegations touching upon the wage survey and the requests for information about it are , in my opinion, in no respect violative of the Act. Also, I have found that the Company was within the bounds established by Section 8(a) of the Act in undertaking, in January 1964, to correct deviations it had found in the administration of the time bonus plan. Consequently, the only aspects of alleged illegal unilateral action that remain to be decided in this subsection 55 are ( 1) the February 1963 limitation upon the free- dom of members of the Union's executive committee to obtain time off from work to investigate actual or potential grievances, and (2 ) the surplus pool problems. We turn first to the conclusions to be drawn from the limitation placed upon mem- bers of the executive committee of the Union , and then assess the Company's han- dling of the surplus pool. The facts regarding the restrictions placed upon members of the Union's execu- tive committee in February 1963 are detailed in section III, G, 4, above (supra), u,' Other matters , which can be as readily classified as unilateral actions, but which to me seem to be more logically related to the "course of conduct " contention , are dealt with in the succeeding subdivision of this Decision 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and need not here be repeated. I think it sufficient to say, in disposition of this allegation (weighing it also in relation to the total facts bearing upon the "course ,of conduct" allegation treated in the succeeding section), that the Respondent- wholly apart from having acted in the context of an impass in bargaining reached upon this and related issues-did not change (as alleged in paragraph 21 of the complaint) "the established grievance investigation procedure . without having afforded the Union an adequate opportunity to negotiate and bargain with Respond- ent concerning such changes." On the very first day of the negotiation sessions (April 10, 1962), the Respond- ent, in explanation of its proposal that the parties amend their contract so as to make "practical and efficient provisions for investigating, presenting and settling grievances," stated that under this proposal "the number of people investigating the grievance . . . is limited." This problem, as we have seen, was the subject of earlier unfair labor practice charges (ultimately dismissed by the General Counsel in October 1961) and an arbitration proceeding which culminated in a decision, generally favorable to the Company, rendered on June 18, 1962. The Company's limitation proposal was discussed at the bargaining sessions of May 22, June 12 and August 23, 1962. The Union's consistent position was that it would not agree to the change proposed by the Company. The subject was again explored at the meeting on January 11, 1963, with no resolution or indication from the Union that an accommodation on this issue was likely. An objective weighing of the undisputed evidence on this particular subject- here considering it apart from the "course of conduct" allegation and the conten- tion that an overall impasse then existed and had persisted since August 1962- impels me to the conclusion that not only did the Respondent discuss this matter with the Union but, in truth, afforded the Union "adequate opportunity to negotiate and bargain" concerning it, without an agreed result having been reached prior to the changes made by the Company in late February 1963. I so find. In section III, G, 6 (supra, et seq.), I have detailed the facts, as I find them, relating to the operation of the surplus pool program, which directly stemmed from the long-established, accepted and unilateral policy of the Respondent to provide 58 weeks of guaranteed regular annual employment to employees with ,over 2 years of continuous employment 56 That a real problem regarding the most efficient utilization of present employees subject to the guarantee arose in 1961 and become acute in early 1963, is apparent from the findings I have made immediately above and in section G, 6, supra. In short, the Company's Port Ivory management was forced with an operational problem of how best to utilize the service of an increasing and indefinite number of guaranteed employees, in the face of the Union's adamant insistence upon the continued observance of past practices (which the Union assumed to be immutably fixed in a rigid mold). In response to the Union's expressed attitude, the Company did explore with the Union what it conceived to be the most pressing of the facets of the surplus pool problem, both before and after the statutory limitation ,date of September 4, 1962. I find that in major aspects the Company's actions regarding this issue were not only consistent with the terms of the long-expired contract but were not taken until after the particular problem had been discussed with the Union. I conclude, therefore, that the allegations relative to the surplus pool, including the claim that it was unlawfully utilized to achieve the flexibility sought by the Respondent in its proposals with respect to contracting out 57 and combination and elimination of classifications, jobs and job duties, are not established by the evidence. 501n the discussion of this and related subjects during the relevant negotiating session, the Company pointed out that all employees then on the active employment rolls were entitled to the benefits of the guaranteed employment plan and, at another point early in the negotiations, produced statistics demonstrating that approximately 18 percent of the then employees in the two bargaining units here involved had 30 or more years of service 67 An issue, much litigated, that was removed from the complaint by the General Coun- sel's unopposed and allowed posthearing motion. See footnote 2, supra Inseparably related to the contracting out allegation, in my view, are the present contentions regarding the actual and implied ramifications of the Company's operation of the surplus pool. A parity of treatment is definitely indicated. PROCTER & GAMBLE MFG. CO. 425, 3. Alleged undermining course of conduct, and the question of a bargaining impasse We come now to the basic question, which can be simply stated but is not suscep- tible for a short and simple answer: Did the Respondent negotiate with the Union in bad faith and, in the process, engage in "take-it-or-leave-it" bargaining (as alleged, respectively, in paragraphs 13 and 14(m) of the complaint)? The principles which govern decision need not here be set forth in exhaustive detail. Section 8(d) of the Act defines collective bargaining as "the performance of the mutual obligation of the employer and the representative of the employees to, meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment or, the negotiation of an agreement, or any question arising thereunder, . . . but such obligation does not compel either party to agree to a proposal or require the making of a concession.. ." The yardstick laid down by Section 8(d) for the measurement of "good faith" is not rigid but, necessarily, is an elastic concept having meaning "only in its application. to the particular facts of a particular case." N.L.R.B. v. American National Insur- ance Co., 343 U.S. 395, 410. As the Court of Appeals for the Second Circuit stated in N.L.R.B. v. National Shoes, Inc., 208 F.2d 688, 691-692, the problem "is essen- tially to determine from the record the intention or state of mind of the [employer] in the matter of [his] negotiations with the Union. In this proceeding, as in many others, such a determination is a question of fact determined from the whole record." 58 Moreover, as the Supreme Court stated in American National Insurance, supra, 404, it is "apparent from the statute itself that the . . . Board may not, either directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements." A necessary corollary to this principle is that, just as the Act "contains no authority to force an agreement where the parties have reached an impasse" (N.L.R.B. v. United Clay Mines Cor- poration, 219 F.2d 120, 126 (C.A. 6)), so also refusal to bargain cannot be equated with "refusal to recede from an announced position" advanced and main- tained in good faith. Division 1142, Railway and Motor Coach Employees v. N.L.R.B., 294 F.2d 264, 266 (C.A.D.C.). Applying these principles, I am persuaded that the Respondent here has fulfilled its obligation under Section 8(d) and did, in fact, bargain in good faith with the Union. I have previously found (section H, 5, above), that apart from their relevance to the question of motivation now under consideration, the various written and oral communications of the Respondent were not independently violative of the Act. I have reappraised these publications and statements in the context of the bad- faith allegation, and conclude that they do not depict a "course of conduct in derogation of the Union's status" as the exclusive bargaining representative of the employees or evince "a purpose to bypass and undermine the Union . . . as such representative " A few remaining matters related to this aspect of the case remain for disposition. Thus the complaint alleges (paragraph 14(i) and (j)) that the discontinuation of the dues checkoff and bulletin board privileges on August 3, 1962, the expiration date of the 1960 contract as extended, undermined the Union. The short and suf- ficient answer to this contention, in my view, is that these actions were taken and concluded a month before the Section 10(b) cutoff date, and for that reason alone cannot be held violative of the Act. Local Lodge No 1424, Machinists V. N.L.R.B, 362 U.S. 411. It is undisputed that from February 25, 1963, until the negotiation meeting on August 22, 1963, the Company recognized the Union only on a "pro- visional" basis, its reason for so doing being that litigation was pending regarding the Union's identity. However, there is no evidence warranting the conclusion that bargaining was thereby impeded or frustrated, and at the first meeting following the Board's action granting the Union's motion to amend its outstanding certifica- tion to reflect its correct name the Company agreed that it fully recognized the Union as the collective-bargaining representative. In effect, the Respondent was reserving its legal position. Cf. Fehr Baking Company, 104 NLRB 240. Several subparagraphs of paragraph 14 of the complaint allege that the Com- pany undermined the Union by its bargaining position on a number of manda- tory subjects of bargaining. These allegations may be summarized as deriving from, 51 See also N L R B. V. Reed & Prince Manufacturing Company, 205 F 2d 131, 134-135. (C A. 1), cert denied 346 U.S. 887. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the bargaining posture of the, Company regarding (1) substitution of a new com- pany in the wage survey (paragraph 14(b) and (c)), ' (2)' alleged insistence that the Union "relinquish the right to strike while not according the Union the oppor- tunity to arbitrate effectively the administration of the .proposed provisions" .of the new contract (paragraph 14(f)), (3) proposals for "`procedures for arbitration which denied the Union any effective means of arbitration" (paragraph 14(g) ), (4) "proposals for restricting time off for Union officials for handling Union affairs" (paragraph 14(h)), (5) the request that the Union "obtain and submit newly executed dues checkoff card or cards signifying Union adherence" (paragraph 14(k) ), and (6) the alleged refusal "to incorporate agreed upon working condi- tions in any written collective bargaining agreements" (paragraph 14(1) ). The facts bearing upon these allegations have been set forth at substantial length in the summary of the bargaining negotiations. I find that the Company's proposals on these matters were not unlawful per se and, further, that its tactics regarding them were not violative of the Act. To conclude, I find that the parties had reached a bargaining impasse in August 1962, prior to the Section 10(b) cutoff date, primarily over the two key issues of the scope of arbitration and the prerogatives of management. As summarized in the preceding sections dealing with the proposals made in bargaining, the parties early in their negotiations, prior to the expiration of the contract as extended on August 3, 1962, were seriously at odds on these two issues. By the end of the August 23, 1962, session, the impasse was evident. Nonetheless, bargaining con- tinued, with the Company and also the Union making modifications in certain areas in an effort to reach agreement. As we have seen, the Company modified its position on the details of arbitration and closely related subjects, and also acceded to the Union's demands in substantial part in economic matters. The Union, however, adopted an intransigent position on management responsibilities and arbitration, and repeatedly refused to make any meaningful effort to resolve these major differences by proposing workable alternatives. Finally, it seems fair to say that beginning in the summer of 1963 the Union shifted its efforts from the bargaining table to an attempt to augment its bargaining strength by affiliating with the Teamsters. When this move was defeated by a membership vote of 554 to 400 on June 16, 1964, shortly after the hearing began, the Union adopted a more conciliatory attitude with the result that the bargaining impasse was eventually broken and'a new con- tract executed on September 28, 1964. In view of all the foregoing, it will be recommended that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. The Procter & Gamble Manufacturing Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Procter & Gamble Manufacturing Company has not engaged in unfair labor practices within the meaning of Sections 8(a) (1), (3), and (5) and 2(6) and (7) of the National Labor Relations Act, as amended. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, it is recommended that the complaint herein be dis- missed in its entirety. Aeronca Manufacturing Company and International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, UAW, AFL-CIO. Cases' 31-CA-158 and 188. August 9,1966, DECISION AND ORDER On May IT, 1966, Trial Examiner Herbert Silverman issued his Decision in the above-entitled proceeding, finding that the Respond- 160 NLRB No. 35.