Borg Compressed Steel Corp.

394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Borg Compressed Steel Corporation and Tulsa General Drivers , Warehousemen & Helpers, Local Union No. 523, affiliated with the International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America . Case 16-CA-2701. June 14,1967 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On February 16, 1967, Trial Examiner John G. Gregg issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, only the Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations' of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that the Respondent, Borg Compressed Steel Corporation, Tulsa, Oklahoma, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. I The Respondent's request for oral argument is hereby denied as, in our opinion, the record, including the exceptions and brief, adequately present the issues and positions of the parties 2 The Trial Examiner sets forth, in the Remedy section of his Decision, the reasons for requiring the Respondent , upon request of the Union, to execute the agreement dated April 1, 1966, to be effective for 3 years front the date of execution by the Respondent There is no exception to this proposed remedy In his Recommended Order, the Trial Examiner provides that the Respondent is required, upon request to, (a) bargain collectively with the Union, (b) execute the agreement dated April 1, 1966, and (c) provide for said agreement to be effective for 3 years from the date of execution Our adoption of these provisions is to be construed as giving the Union a choice of requesting the Respondent to bargain collectively or to execute the agreement See N L R B. v. M & M Oldsmobile, Inc, 377 F 2d 712 (C A 2) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN G. GREGG. Trial Examiner: This case was heard upon the complaint of the General Counsel of the National Labor Relations Board, herein called the Board, alleging that Borg Compressed Steel Corporation of Tulsa, Oklahoma, herein called the Respondent or the Company, had engaged in and was engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the National Labor Relations Act. Respondent's answer denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before me at Tulsa, Oklahoma, on various dates between October 20 and November 4, 1966. All parties were afforded full opportunity to appear and to examine and cross-examine witnesses and to submit briefs. The motions to correct the record by the General Counsel dated December 28, 1966, and by the Respondent dated December 29, 1966, and January 6, 1967, are hereby granted. Upon the entire record in this case, and from my observation of the witnesses and their demeanor while testifying. I make the following: FINDINGS OF FACT 1. JURISDICTION The Respondent is and has been at all times material herein an Oklahoma corporation maintaining its principal office and place of business in the city of Tulsa. Oklahoma , where it is engaged in buying , processing. and selling scrap iron , steel, and metals . The Respondent, during the past 12 months which period is representative of all times material herein, in the course and conduct of its business operations purchased. transferred, and delivered to its plant materials valued in excess of $50,000, of which materials valued in excess of $50,000 were transported to said plant directly from States of the United States other than the State of Oklahoma. During the same period the Respondent sold, transported . and shipped directly to its customers outside the State of Oklahoma products valued in excess of $50.000. The Respondent is now and has been. at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED Tulsa General Drivers. Warehousemen & Helpers, Local Union No. 523, affiliated with the International Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of America is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES On May 6, 1965. a majority of the employees of the Respondent in the appropriate unit consisting of all employees working at the employer's establishments located at 1032 North Lewis, Tulsa. Oklahoma. 707 East Archer, Tulsa. Oklahoma, and Sand Springs, Oklahoma, including truckdrivers reporting to 1032 North Lewis, Tulsa, Oklahoma. excluding all office clerical employees, guards, watchmen, and supervisors as defined in the National Labor Relations Act, as amended, by a secret- 165 NLRB No. 55 BORG COMPRESSED STEEL CORPORATION ballot election conducted under the supervision of the Regional Director of Region 16 of the National Labor Relations Board designated and selected the Union herein as their representative for the purpose of collective bargaining with the Respondent. and on May 14. 1965, the Regional Director certified the Union as the exclusive collective-bargaining representative of all of said employees of the Respondent. The complaint alleges essentially that commencing on or about December 6, 1965, the Respondent refused and continues to refuse to bargain collectively with the Union as the exclusive representative of all the employees of the Respondent described above in that the Respondent negotiated with the Union in bad faith and with no intention of entering into any final or binding collective- bargaining agreement and in that the Respondent. after incoipotating a union-shop provision in its proposed collective-bargaining agreement as submitted to the Union on or about March 18, 1966, repudiated, withdrew. and retracted the said union-shop provision on or about May 18. 1966. after the provision had been accepted by the Union: that after submitting a proposed collective- bargaining agreement to the Union on March 18. 1966, which was accepted and executed by the Union on April 1, 1966. Respondent refused to execute said agreement; that by the aforesaid acts the Respondent refused and continues to refuse to bargain collectively in good faith with the Union, thereby engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the Act. The Respondent denies that it refused to bargain in good faith with the Union; denies that it negotiated in bad faith and with no intention of entering into a final and binding collective-bargaining agreement; denies that it repudiated, withdrew, or retracted any union-shop provision which it had previously accepted or to which it had agreed; and alleges that at all times it has met with, and has been and is now ready and willing to meet with, the Union for the purpose of collective bargaining; and that it has negotiated in good faith with the Union and had, prior to the complaint, submitted a contract to the Union for its acceptance which has at all times been and continues to be subject to acceptance by the Union. A. TheBargainingfrom June 8, 1965, to September .30, 1965 Sometime in June 1965. Robert W. Bryant. assistant business representative and negotiator for the Union, and Charles Whitebook. counsel and negotiator for the Respondent, set a first meeting date of June 8, 1965, at which time negotiations were commenced. The first meeting was held as scheduled on June 8, 1965. at Whitebook's office Bryant represented the Union, Whitebook the Company, with Raskin, an associate of Whitebook, sitting in but not actively participating According to Bryant . at this meeting Bryant presented a contract proposal to Whitebook, and Whitebook presented a contract proposal to Bryant. Whitebook informed Bryant that this original company proposal had been prepared by taking provisions from existing articles in agreements between scrap processors and unions in other parts of the country. that this proposal had been carefully prepared, reviewed, and approved prior to the meeting by principals Borg and Freidman who were officers of the Respondent corporation and by one Hall. a labor relations advisor and sometime representative of the Respondent in such 395 matters. Bryant testified that Whitebook took a long period of time to acquaint Bryant thoroughly with the scrap industry, its history and background. Both men then went briefly through the other's proposals. Following this they proceeded to consider each article noting their ability to agree or disagree. passing those matters inn which agreement could not be reached. They went through the union proposal at the first meeting, with Whitebook noting disagreement on most clauses including the union-shop provision No agreements were reached at this meeting. Whitebook agreed to study the union proposal and prepare a counterproposal for the next meeting which was scheduled for June 16, 1965. Whitebook testified that immediately after the meeting of June 8 Whitebook had one of several meetings with Hall, Borg, and Freidman at which time they went over each and every article in the proposal made by the Union. The next meeting took place on June 16 with Bryant. Whitebook, and Raskin attending. At this meeting. according to Bryant. Whitebook again went over the conditions prevalent in the industry, emphasizing the competitive aspect and indicating that the work was extremely hard, having to be performed at times when the temperature is at 110 degrees and the scrap metal hot. and at other times at 10 degrees above zero when the metal is extremely cold; that at the prevailing minimum wage of around $1 25 per hour a major problem was involved in obtaining and retaining labor. Following this Bryant and Whitebook proceeded to the articles that had not been considered at the first meeting. At that time the participants had before them the Union's original proposal, the Company's original proposal, and material on classifications, wage rates, and employment dates. Bryant testified that at this meeting he took exception to certain aspects of the Company's first proposal such as the lack of any kind of a union-security clause. According to Bryant his position as stated to Whitebook at this meeting was that the union-security clause was necessary if the Union was to properly represent the employees and that Whitebook's position was that they did not want any union-security clause whatsoever. At the time of this meeting Whitebook had proposed no union-security clause to be included in an agreement. The next meeting was held on June 21, 1965, attended by Bryant, Whitebook, and Raskin in Whitebook's office. The Company's counterproposal was placed on the table by Whitebook for consideration. This counterproposal. among other items. included a so-called modified union-shop provision which did not require employees to join the Union, provisions for checkoff, maintenance of membership, no-strike no-lockout. seniority holiday pay. vacations. and a grievance and arbitration provision. According to Whitebook, this counterproposal was discussed with Borg and Freidman prior to the meeting to see how far Whitebook could possibly go in submitting to the Union a counterproposal which would move toward working out their differences. Bryant testified that when he noticed that the Company had incorporated a modified union-shop proposal, he opposed the principle of a modified union shop as opposed to a strong union-security clause as requested by the Union. Among other things. Bryant took exception to the Company's grievance-procedure clause as having too many steps. each allowing too many days to get a grievance before a panel. Bryant indicated that he took loud objection to both the modified union-shop and the grievance-procedure proposals. Bryant also took exception 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the language proposed in the Company's management- rights clause indicating that the language was offensive. He took exception to the lack of a wage-reopener clause. Bryant summarized that this was a short, hard meeting with no issues resolved. The record indicates that sometime after the meeting of June 21 Bryant contacted C. P. Hutchinson of the Federal Mediation and Conciliation Service who arranged with Bryant and Whitebook for a meeting on July 12, 1965. This meeting was held in Whitebook's office attended by Hutchinson of the Federal Mediation and Conciliation Service, Whitebook, Raskin, and Bryant. The first hour was spent going over the background and history of the scrap industry. The group had before it the Company's counterproposal and the attached appendix. The parties negotiated from this article by article. Articles offensive to each side were noted and passed. Some articles were agreed on, not of dollar importance according to Bryant. Bryant testified that a note he made stated "More progress was made today than any previous meeting with Mr. Whitebook." Bryant stated that he reiterated at this meeting the union position that a modified union shop was not satisfactory to the Union which wanted a union- security clause. This article of the proposal was passed with brief notes according to Bryant. At this meeting the parties did not complete their review of all of the provisions of the Company's counterproposal. The parties agreed to meet again on July 16, 1965. The next meeting, on July 16, was held in Whitebook's office with Bryant, Whitebook, and Raskin attending. At this meeting the parties continued to consider the Company's counterproposal and its attachment, the wage scale, appendix A. The remaining articles were gone over. Bryant testified that after considering those articles which had not previously been covered at the July 12 session the parties again went over the proposal from the beginning. According to Bryant, Whitebook informed him that "the Company had no objection to their employees belonging to the Union, absolutely none. They voiced a strenuous objection on some of their employees of which I had earlier testified were not supervisors as defined in the Act but old-time employees they used in the capacity of leadmen and so on. They wanted those men excluded. We discussed this and I assured him that I would obtain wording that would be legal to exclude them, not from a bargaining agreement but from the union security clause as such." Bryant testified that he considered this the biggest breakthrough of the entire negotiations and that then he undertook to get the proper legal wording for this clause. Bryant later wrote a letter to Whitebook, dated July 19, 1965, setting forth the wording which would exclude the supervisors. Bryant testified that there was discussion at this meeting of other clauses including the "Management Rights" clause and "Amendments, Additions and Waivers." Bryant stated that he gave up most of his objection to these clauses in order to obtain the union shop with exclusion clause. Bryant also testified that a discussion took place at this session concerning the grievance article and that Bryant asked Whitebook to let him (Bryant) propose a shortening of the steps that were included in the procedure. Bryant also asked for inclusion of a new article relating to use of the bulletin board to which Whitebook agreed and also asked for a new article "Stewards, Union Stewards" relating to the duties and limitations of stewards to which Whitebook had no objection and agreed. Bryant undertook to provide Whitebook with something on the grievance procedure, indicating that he and Whitebook were not apart on the basic principles but on the number of days involved in the procedure. Bryant asked for a new article on discharge causes. He testified that Whitebook later included this in his proposal. According to Bryant, toward the end of the meeting he and Whitebook discussed the wage structure. Bryant stated that he told Whitebook that they were so close to agreement that he asked Whitebook to contact Borg regarding the 5-cent-an-hour across-the-board increase to all employees, regardless of classification and present rate, which Whitebook undertook to do. No arrangement was made for the next meeting as Bryant was to prepare his items and Whitebook was to contact Borg on the rate matter. Bryant testified that at this point, aside from a question on the wording of the exclusion aspect of the union-shop provision, he was satisfied that an agreement could be worked out. According to Bryant, subsequent to this meeting he went to his legal counsel, Ungerman, who worked up a provision excluding certain employees from the operation of the union-security clause which Bryant used in sending a letter to Whitebook. Subsequently, by date of August 19, Whitebook forwarded a letter to Bryant on the wage structure. Testimony of record by both Whitebook and Bryant establishes the fact that around this time Bryant asked to meet directly with Borg, to settle the matter of the wage increase, that Whitebook cleared this with Borg and Freidman, and that Bryant's request was denied. The Respondent submitted a revised company proposal for an agreement to the Union on August 27, 1965. Whitebook testified that this "contract" which was submitted to the Union under date of August 27 contained a so-called modified union-shop provision substantially identical to the provisions of the Respondent's counterproposal of June 21, and that this "contract" of August 27 was amended on September 15, 1965, by the substitution of pages which include a union-shop provision. Under the August 27 so-called modified union shop those men who wanted to could )oin the Union and those who did not simply did not have to join the Union. When queried as to the reason why the Respondent on September 15, 1965, amended its submission of August 27 to include a union shop with exceptions, Whitebook testified that on or about September 8 he received a call from Bryant who was very angry over the so-called modified union shop and told Whitebook that he could expect an immediate strike, that he (Bryant) simply was not going to submit the modified union shop to the men, that "unless he wanted a strike, he wanted this to submit immediately." Whitebook testified that he then simply went ahead and dictated the union-shop provision with exclusions to the secretary and sent it on that very same or the next day. Whitebook testified that in effect he submitted the change from the August 27 proposal to the one containing the union shop with exceptions in response to Bryant's demand. He testified further that it was understood that the new proposals were to be substituted and attached to the revised company proposal and that they were then to be submitted to the membership to see whether, notwithstanding Bryant's personal objection to certain of the other provisions of the proposal, Bryant could obtain approval from the Union or the membership. After the amendments were attached to the Company's revised proposal to include the union shop with six specific exclusions , on September 27 Bryant notified the BORG COMPRESSED STEEL. CORPORATION 397 employees that a ratification meeting would be held at 7 p.m., Thursday, September 30, 1965. Bryant testified that this meeting was held in the Teamsters union hall, attended by himself, Shryop, who was also an officer of the Union, and some of the employees of Borg. Bryant testified that he read the revised company proposal for agreement and explained it to the employees. Bryant testified that approximately 13 employees were present, that he, Bryant, explained and defined the contract emphasizing good and bad points, as none of the employees had previously been covered by a union agreement. Bryant stated that while earlier company proposals relative to the union shop had specified three employees for exclusion the revised proposal specified six. According to Bryant this was explained to the men. Bryant said that by secret ballot he achieved ratification with authority to make changes in language which he deemed objectionable, including authority to negotiate with Whitebook to limit the union-shop exclusions to three instead of six if possible. In a different version of what transpired Whitebook testified that he was advised of the notice of the union meeting posted at Respondent's premises and then advised that there was a meeting at which only two men attended. Whitebook testified that on October 4, 1965, after the union meeting , "I then received a call from Mr. Bryant and Mr. Bryant advised me that he had submitted the contract and that the membership had turned it down." Based on my observation of the demeanor of the witnesses as they testified, I do not credit the statement by Whitebook. Whitebook stated that at this time Bryant indicated that he was "tired of this fooling around they were going to call for a strike." According to Whitebook, after this call Whitebook contacted his clients and advised them of the situation. Whitebook testified, "Subsequent to that time, almost immediately subsequent when the strike did not develop and it came to our attention that only two men had attended the meeting it appeared the Union really was not in a position to pull a strike and I waited for Mr. Bryant to move." Whitebook stated he was of the opinion that the Union had made its attempt and this was the end of it. According to Whitebook, having had no strike and hearing nothing further from Bryant, on November 9 he assumed that matter was over, so he advised his client, closed his files, and billed his client. The next meeting he had on the matter was in December when Ungerman called for a meeting which took place on January 11, 1966. B. The Hiatus between October 5, 1965, and January 11, 1966 There is a difference of opinion between Whitebook and Bryant as to the events that took place between October 5, 1965, and January 11, 1966. Whitebook testified that he received no further calls from Bryant in October and no calls in November until sometime before Thanksgiving when Whitebook's secretary mentioned that Bryant had stopped in the office, had not left any notices or number. Whitebook testified that he asked his secretary to call Bryant and leave a call and that she did call the union office. According to Whitebook, Bryant was out and a call was left. Bryant did not return the call and Whitebook did not try to call him again. On the other hand Bryant testified that after October 5, 1965, he tried to contact Whitebook innumerable times until December 12, when he turned the entire matter over to his attorney, Ungerman. Bryant testified that during the period he tried many, many times to contact Whitebook, from 3 to 5 times a week, that in most instances a lady would answer the telephone or it would be busy. Bryant stated that he left his name and telephone number with the person who would answer the telephone and asked that the call be returned. There was considerable testimony on the matter of how telephone calls were received and noted in Whitebook's office the sum of which I find not dispositive of the issue. Based on my observation of the demeanor of the witnesses as they testified, I credit Bryant's version of his repeated attempts to reach Whitebook. C. The Bargainingfrom January 11, 1966, to May 18, 1966 The next meeting was held on January 11, 1966. Ungerman now negotiated for the Union. According to Whitebook the parties had before them the revised company proposal of August 27, 1965, with the pages which had been superseded by the amendment of September 15. This contained a union-shop provision with six exclusions and it was from this that the parties negotiated on January 11, 1966. Whitebook testified that discussion was'had on article III, the union shop, the 5- cent increase, the term of the contract (with Ungerman seeking 1 year and Whitebook taking the position that throughout the negotiations the Respondent had talked about 3 years), a change or revision in article III concerning notification to the Union within 30 days after hearing, and the matter of the exclusions from the union shop (Ungerman seeking three exclusions, Whitebook holding for six). They also negotiated on access to company property by union representatives and the grievance and arbitration procedures. Whitebook undertook to carry these back to Borg for discussion. While Whitebook testified that there was no discussion on the union-shop controversy testimony indicated considerable discussion on matters connected with that clause such as exclusions and notification. According to Whitebook no agreement was reached at this meeting but he was to clear these matters with his client and report back to Ungerman, advising him as to what, if anything, the client would go along with. In testifying concerning the meeting of January 11, 1966, Whitebook indicated that the question of the number of exceptions to be included in the union-shop clause was discussed at some length, that the Union, through Ungerman, pressed for three exclusions while Whitebook maintained his position on six exclusions. Whitebook testified, "In Article III, Section 2, there was an apparent omission in that we had not agreed or there was no provision for notification of any employees that should be hired, either that I do not remember exactly or the number of days was not correct, and I saw nothing that my client might object to. I told him I didn't think I would have any trouble having that approved and we agreed." Whitebook testified that dispute then evolved over the grievance procedures and there were about six separate subjects that he was to take back and talk to Borg Steel about. Shortly thereafter he communicated the situation to Borg and Freidman. Borg was leaving for "a conference in Washinton on private business in Washington and New York City ... but definitely he was out of town during the intervening period and I was not able to get in touch with him, to meet with him to discuss the matter." Whitebook explained "the intervening period" to mean the period between January 11, 1966, and the end of the month. 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Toward the end of the month, according to Whitebook, Ungerman called and wanted to know why he had not heard from Whitebook, Whitebook explained Borg's absence. A meeting was subsequently set for February 16, 1966, in Whitebook's office. On the other hand, Ungerman's version while essentially in accordance included this contradictory testimony, "We discussed right down the line, item 1, this question of the exclusions from the union shop, Whitebook advised me that Borg insisted if he was going to have a union shop he'd have to have these six exclusions...." At the meeting of February 16, according to Whitebook, he pointed out to Ungerman that Borg was adamant and refused to budge, insisting on the six exclusions, on a 3- year contract with no wage reopener, no termination, no right of renewal at the end of 1 year, and no change in the grievance procedure. Whitebook testified that he advised Ungerman at this meeting that Borg would not have what he termed a closed union shop or compulsory union membership. Whitebook testified that at that time he had a discussion with Ungerman, and told him that "anyhow we would not have, we would never agree to and had never agreed to a proposal of compulsory union membership, we weren't going to do anything to stop the Union, we would not interfere. They could bring men in, they could belong if they wanted, but we would not make it necessary." According to Ungerman's version however, on the day prior to the February 16 meeting he had finally reached Whitebook on the telephone and Whitebook had advised him that Borg would not change his position at all, that with respect to the union-shop provision "he felt that in order to give the Union a union shop clause he needed that many exclusions from the coverage," that he (Borg) had a number of employees that he felt he just could not force to join the Union. Ungerman stated that Whitebook essentially repeated this at the meeting the following day on February 16. Based on my observation of the demeanor of the witnesses as they testified, I credit the version given by Ungerman and do not credit the version of Whitebook. Following the meeting of February 16, according to Ungerman he conferred with Bryant relative to what had transpired, that subsequently Bryant told him to conclude the agreement on the basis desired by the Respondent with respect to the wage reopener and the number of exclusions. Ungerman reached Whitebook, set up a meeting for March 2, 1966. At the meeting of March 2 they went over Ungerman's suggested changes on three items which they had previously agreed on, the grievance procedure, access to company property, and a 30-day notice after hiring of new employees. Ungerman testified that he had previously advised Whitebook that the Union was agreeable to going along and granting them six exclusions, the Union would drop anything regarding the wage reopener and settle for the 5-cent increase over a 3-year period. Ungerman asked Whitebook to prepare and submit the revisions. Whitebook then prepared and submitted the revisions which he testified were approved by Borg, and forwarded the revised provisions by letter of March 18, 1966, which included several "revised and superseded pages of the Proposed Contract between Borg Steel and the Union containing the revisions agreed upon." According to Ungerman, after these were received lie and Bryant went over the revisions, Bryant approved, and that was it. Then according to Ungerman, Ungerman called Whitebook and told him the changes were fine. Subsequently a contract dated April 1 was prepared and executed by Shryock for the Union and delivered to Whitebook's office by Ungerman. Ungerman claims he left it with instructions that it be signed by Borg, Whitebook claims it was found on his desk. Ungerman testified that following this, he contacted Whitebook the middle of April asking whether Borg had signed and Whitebook said he had not been able to get it signed. He tried several more times, contacted Whitebook and was told that Borg would not give Whitebook a concrete answer on the contract. While this was going on, according to Ungerman, the Union, on May 18, received a new contract proposal from Whitebook signed by Borg in which the union-shop provision was withdrawn. In the covering letter forwarding this proposal Whitebook indicated the reasons why the union-shop provision was deleted, "Management is presently of the opinion that it cannot live with a closed shop contract and that an open shop is imperative." Whitebook's explanation of what happened in the intervening time between receiving the Union's proposed contract dated April 1 and forwarding the Respondent's proposed contract of May 18 was essentially that when on March 30 he found the union proposal on his desk he communicated immediately with his clients, then met with them on April 15 and 22. Borg, Freidman, and Whitebook went over the matter article by article. Whitebook testified, "Mr. Borg was unhappy with some of the opinions that I had given them. He wanted to investigate on his own, and he did And he brought back to me some 25 or 30 corrections or modifications or counterproposals that he wanted to make to the Union's submissions." When asked why it took two conferences, a week apart, instead of one to go over the union proposal Whitebook stated that "it takes a long time to go over this contract article by article sincerely and honestly and to give and take and discuss it, and object and cajole and try to work the thing out. Mr. Borg and Mr. Freidman were not in agreement on all matters. I was not in agreement on the legal point and there was pull and give and take to see if we could live with this thing. We simply did not get through on the 15th." Finally on May 19 original counterparts of an executed contract counterproposal was submitted by the Respondent to the Union, signed by Borg. This did not contain a union-shop provision but included a so-called modified union shop with six exclusions. Findings and Conclusions It has been stated many times that the duty to bargain collectively requires that the parties meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment. While the statute does not compel either party to agree to a proposal or require the making of a concession something more than mere surface negotiation must clearly be undertaken. N.L.R.B. v. Whittier Mills Company, et al., 111 F.2d 474 (C.A. 5). The statute will not permit a company to give the union a runaround while its representatives merely go through the motions of meeting with union representatives for the purpose of collective bargaining. N.L.R.B. v. Athens Manufacturing Company, 161 F.2d 8 (C.A. 5). Good-faith collective bargaining calls for a willingness to conduct negotiations with an open mind and purpose to reach an agreement consistent with the respective rights of the parties which may then be formalized in a collective-bargaining contract. N.L.R.B. v. BORG COMPRESSED STEEL CORPORATION 399 Insurance Agents' Union [Prudential Ins. Co.], 361 U.S. 477; N.L.R.B. v. Herman Sausage Company, Inc., 275 F.2d 229 (C.A. 5). Whether statutory "good faith" standards have been met is difficult to determine, particularly where the record does not disclose an outright refusal by the Respondent to meet and negotiate with union representatives. In N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F.2d 131 (C.A. 1), an employer engaged in a lengthy series of bargaining conferences which got nowhere. The court stated, "In such a case the question is whether it is to be inferred from the totality of the employer's conduct that he went through the motions of negotiations as an elaborate pretense with no sincere desire to reach an agreement if possible, or that [the employer] bargained in good faith but was unable to arrive at an acceptable agreement with the Union." (Emphasis supplied.) Based on careful analysis of the record in this case and my observation of the demeanor of the witnesses as they testified, I am convinced and I find from the totality of the Respondent's conduct that the Respondent did not bargain in good faith with the Union but conducted "surface" bargaining with no sincere desire to conclude a final and binding agreement. In reaching this conclusion I have given consideration to the following: First, the dilatory actions of the Respondent. Commencing around September 30 the dilatory actions of the Respondent indicate that it had one eye on what it considered to be the apparent dwindling of the Union's strength and had no sincere desire to conclude a binding agreement with the Union. In this regard the record discloses that from the time the parties commenced bargaining in June 1965, until they ceased a year later in May 1966, they participated in two series of negotiating sessions interrupted by a gap or hiatus of almost 3 months. Ample testimony of record indicates that subsequent to the ratification meeting of September 30, 1965, by interrogating employees of the Respondent, the Respondent's president, Borg, ascertained, or believed that he had ascertained, that only two men attended the ratification meeting, that apparently union ardor had cooled, and that the Union had lost its majority.' Statements by Whitebook to this effect are clear on the record. In fact, Whitebook testified that when no strike materialized after the ratification meeting he was convinced that the employees had not backed the Union and that the Union's representative, Bryant, was no longer interested in continuing union activity. Under these circumstances Whitebook, by his frank admission, elected not to make a move, but waited for the Union to make the next move and when, as he alleged, he heard nothing further he billed his client and closed the case. Aside from the fact that I do not credit Whitebook's account that he heard nothing during this period except for one visit from Bryant which he returned, and I do credit Bryant's account that he tried to contact Whitebook on numerous occasions, I find in Whitebook's account of what transpired during this period, and his rationale, an unmistakable element of intent to avoid, if possible, concluding an agreement with the Union. With this in mind, when Whitebook at the insistence of the Union then resumed the bargaining on January 11, 1966, he did so with no sincere desire to reach a final agreement but with an ear toward the ticking of the timeclock as it measured out the certification year. The second significant delay occurred when, at the conclusion of the first session of resumed negotiations on January. 11, 1966, Whitebook undertook to clear matters which had been discussed at the meeting with Borg and to advise Ungerman of Borg's reaction. Whitebook testified that after this meeting he communicated with Borg and Freidman and that the extent of this communication was limited to generally informing them that a meeting had been held and additional demands had been made. Borg was leaving then, according to Whitebook, either for a national conference in Washington or private business in Washington and New York, but "definitely he was out of town during the intervening period and I was not able to get in touch with him, to meet with him, to discuss the matter." The next meeting took place on February 16, almost 5 weeks later. I simply do not credit Whitebook's version. In the circumstances of this case and in this day and age an attorney with the close business and social ties indicated between Whitebook and Borg would doubtlessly, had the parties desired it, been able to maintain contact over this period. I am convinced that had Borg desired it, he could have delayed his trip until the business at hand had been disposed of. Whitebook testified that Ungerman did call him seeking to know why he had not heard from Whitebook to which Whitebook merely replied that in essence he had to await Borg's return. It is interesting to note that after this prolonged delay Whitebook reported to Ungerman at the next meeting on February 16 that Borg was adamant, would not budge. The third incident of foot dragging and delay took place after the Union left its executed proposed contract dated effective April 1, 1966, with Whitebook. Ungerman testified that he subsequently talked to Whitebook and asked what he had done to get it signed by Borg to which Whitebook responded that he had not had the opportunity. I credit Ungerman's testimony that he tried to reach Whitebook on several occasions after this time and when he could not, he called Whitebook again on May 17 and left word for Whitebook to call him back. Later that morning he saw Whitebook in the coffeeshop and asked what was happening. According to Ungerman, Whitebook said he had called Borg, that the contract was not yet signed, and that Borg did not give Whitebook a concrete answer as to when or whether he would sign the contract. Later the same day Ungerman asked Whitebook to call him; when Whitebook did not Ungerman called him. Whitebook said that he had not been able to finalize the agreement or get Borg's signature. He would contact Borg again and advise Ungerman. Following this the Union received a whole new set of contract proposals mailed on May 18, 1966, in which the only basic change was that they had withdrawn the union-shop provision. These incidents clearly indicate that the Respondent failed to display the degree of diligence in meeting with the Union and in reasonably prompt consideration and action ' Concerning the ratificati on meeting of September 30, there were conflicting versions by Bryant and by Crawford and Templeton, two former employees of the Respondent. Insofar as this bears on the question of Bryant's credibility, I draw no conclusion since the testimony of Crawford and Templeton, even if true, would not be dispositive of the question of whether or not a meeting actually took place as described by Bryant, for this could have occurred outside the presence of the two witnesses Even if it were true and I were inclined to discredit Bryant's account, this would not affect those instances in which I have credited Bryant's testimony herein for I would not apply the axiom Ialsus in uno, falsus in omnibus, under these circumstances 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on proposals which proper performance of its bargaining obligations required. This is so whether or not the delays were inspired by a deliberate scheme to engage in dilatory tactics. The duty to bargain in good faith includes the duty to remain available for negotiations at reasonable times as the statute requires. A gap of almost 3 months in the negotiations and a subsequent gap of 5 weeks in the negotiations, the latter at a time when the provisions had been considered for almost a year, does not satisfy that duty. I find that during these periods, at least, the Respondent failed to exercise the degree of diligence required of it by the statute. I have considered this as an element of evidence that the Respondent did not bargain in good faith, but bargained in bad faith with no sincere desire to conclude an agreement with the Union. Secondly, I have taken into account the somewhat ambiguous and fluctuating authority of the Respondent's negotiator, Whitebook. According to Bryant, concerning Whitebook's authority, "He did express to me, during this first negotiating session, even, that he personally had no authority to spend Mr. Borg's money." Bryant stated that Whitebook did not express any limitation as to his authority other than the foregoing. Bryant testified further that at the July 16 meeting, when the matter of wage increases was under discussion, Whitebook again indicated that he had no authority to spend Borg's money. At no time, according to Bryant, did Whitebook indicate any other or further limitation on his authority. There was credible testimony of record indicating that at the meeting of January 11, 1966, Whitebook advised Ungerman that he would have to go back and take anything back to Borg just as the union representatives have to take back to the Union for ratification matters that they negotiate. Ungerman testified that Whitebook told him that the final contract would have to be signed and ratified by Borg. On the other hand Whitebook testified that at the initial meeting on June 8 he explained to Bryant that he was a neophyte, that he had absolutely no authority to do anything except to try to draft something which hopefully Bryant and he could reach agreement on and take back to their principals, that "I had absolutely no authority to agree to anything without approval and that we wanted to move along, that we ought to start, but that not only each item, but the contract would have to be submitted and approved by my principals." Whitebook testified that he had on numerous occasions made this limitation clear. I find that during the bargaining period, June 8, 1965, through September 30, 1965, the only expressed limitation on Whitebook's authority was that he "could not spend Borg's money." I find that for the period January 11 through May 18, 1966, the only expressed limitation on Whitebook's authority was that he would have to go back and take anything back to Borg just as the union representatives have to take back to the Union for ratification matters that they negotiate and that the final contract would have to be signed and ratified by Borg. In so finding I credit the testimony of Bryant and am not persuaded by the statements of Whitebook with respect to statements concerning Whitebook's authority at the 1965 series of bargaining sessions . I am convinced that Whitebook changed his expression of the limitation on his authority when negotiations were resumed on January 11, 1966. It has been stated that a bargaining principal is entitled, in the interest of bona fide bargaining, to something more than an ambiguous definition of the bargaining authority of his opposite in negotiations. See Aaron Newman, Daniel Newman, Paul Newman, and Carl Newman, a Partnership d/b/a Colony Furniture Company and Furniture Workers Union Local 3161, 144 NLRB 1582, 1588. In the case at hand I find the somewhat ambiguous and the fluctuating authority expressed by Whitebook an additional element indicating the lack of a sincere desire on the part of the Respondent to conclude a binding agreement with the Union. Thirdly, the retraction on May 18, 1966, by the Respondent of its assent to a union-shop provision with exclusions, after leading the Union to believe that it had been accepted indicates a failure to bargain in good faith. I am convinced and I find from ample credible testimony of record that the Respondent's negotiator, Whitebook, under circumstances concerning which his principals Borg and Freidman knew or should have known, and with their approval, led the union negotiators on by moving from a position of no union shop to a position in which the Respondent, apparently assenting to a union shop, avoided final agreement on the provision through the tactic of a continuing shifting of its position on the question of the number of exclusions to be provided for. I find from evidence on the record that the Respondent first agreed to the inclusion of a union shop, with six exclusions in the face of a strike threat on September 15, 1965. I simply do not credit Whitebook's statement that he was reprimanded by Borg and Freidman for allegedly exceeding his authority in making the modification of September 15, 1965, by including the union shop with exclusions. I am not persuaded that a lawyer of Whitebook's skill and experience in the law of contract as indicated on this record would have taken this action without the approval of, or prior discussion with, and clearance from his principals particularly in view of his claim that Borg never would agree to a union shop. Whitebook and Borg on this record were close business and social associates with no lack of communication between them. Their course of conduct during the negotiations establishes the fact of their close coordination. Having at one point on September 15, 1965, indicated assent to the inclusion of a union shop with six exclusions the Respondent resumed bargaining on January 11, 1966, in a posture indicating that the matter in question was not whether there would be a union-shop provision but merely as to whether there would be six or three exclusions in the provision. The parties at that time had before them a union-shop provision and conducted prolonged discussions on exclusions therefrom and notifications required in connection therewith. When queried as to whether the union shop was discussed at the meeting of January 11, Whitebook testified "I never referred to it, we didn't discuss it; it was not involved. I hadn't intended to refer to it; I didn't intend to refer to it; I didn't refer to it; it was never mentioned any more than these other negotiations." Whitebook testified that the only discussion was on five matters, one of which was the matter of the exclusions. I do not credit Whitebook's testimony. Aside from the fact that he stated otherwise in a letter dated July 21, 1966, to a field examiner for the Board, I simply do not believe that in a meeting in which a part of a provision was discussed at length that the basic provision would not itself be discussed. In any event, I infer from all the circumstances that the union-shop provision was discussed at the January 11 meeting. When on April 1, 1967, the Union acceded to the Respondent's insistence on the six exclusions and tendered an executed agreement for the Respondent's execution the Respondent merely delayed and stalled. I have reference to both the timing and to the rather unusual occurence which took place, when, at the conclusion of almost a year of BORG COMPRESSED STEEL CORPORATION bargaining, during which time close contact had been maintained between negotiator and principals, one of the principals, Borg, suddenly and belatedly assumed the role of independent researcher on provisions of collective- bargaining contracts and after the consumption of a considerate period of time ostensibly confronted his own counsel and negotiator with a host of changes for the first time. I find this to be unmistakably indicative of a desire to stall and delay the conclusion of an agreement and to clearly indicate that the Respondent bargained in bad faith and with no sincere intent to conclude a binding agreement. N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F.2d 131 at 139 (C.A. 1). See also N.L.R.B. v. Herman Sausage Co., 275 F.2d 229 (C.A. 5). I have also considered that almost immediately after the certification year had run out, and after the lengthy series of negotiations during which the parties had before them under consideration a union shop, the Respondent presented a proposed contract to the Union, from which it had emasculated the union-shop provision. I find this clear indication that the Respondent had never really intended to execute a contract containing a union-shop provision but had, by cunning, deliberately led the Union to believe that bargaining had progressed to an agreement on a union shop while, in fact and as subsequently stated on the record by the Respondent's negotiator, Whitebook, it would never accept a union shop. The Respondent, in its brief, focused attention on the movement on the part of the Respondent from a position of no-union recognition whatsoever, then to union recognition, and finally to a modified union shop providing for voluntary membership in the Union on an optional basis by the employees, that the only thing the Respondent did not do was to agree on a union-shop clause requiring new employees to become members of the Union within 30 days after employment and to remain members as condition of employment. In my opinion this represents a movement from no-union shop to no union shop. A union shop without a requirement for new employees to become members of the Union is no union shop. A union shop is defined as a form of union security under which employees must, within a certain time after they are hired or after a compulsory unionism contract is executed, join the Union and maintain their membership therein as a condition of employment. See Labor Law Course 1964, Commerce Clearing House, Inc. The Respondent advances the argument that it simply reached an impasse on the matter of the union shop because of the cost aspect and its crippling effect on hiring ability, and argues that an employer's counterproposal of a maintenance of membership provision with reasons for rejecting a union- shop provision are indications of good-faith bargaining. However, in the case at hand the Respondent conducted prolonged negotiations over the union -shop provision, leading the Union to believe that it had agreed to it while presumably bargaining over the number of exclusions to be provided for, and finally agreed to the provisions and the number of exclusions as indicated in its letter of March 18, 1966. Under these circumstances the Respondent did not bargain to impasse but to agreement. This agreement is nonetheless valid even though not included in a contract executed by both parties. Having agreed orally to the union-shop provision the subsequent rejection indicates an act of bad-faith bargaining. San Antonio Machine & Supply Corp. v. N.L.R.B., 363 F.2d 633 (C.A. 5); Shannon & Simpson Casket Co., 99 NLRB 430. 401 Accordingly, based on the totality of the Respondent's conduct and with consideration of the factors hereinabove enumerated, not relying on any one but on their cumulative effect, I conclude that the Respondent, commencing on or about December 6, 1965, and at all times thereafter, did refuse and continues to refuse to bargain collectively with the Union in that the Respondent negotiated with the Union in bad faith and with no intention of entering into any final or binding collective- bargaining agreement and that the Respondent, after incorporating a union-shop provision, as previously negotiated in its proposed collective-bargaining agreement submitted to the Union on March 18, 1966, repudiated, withdrew, and retracted on May 18, 1966, the agreement for the inclusion of a union-shop provision. I conclude that by these actions the Respondent did interfere with, restrain, and coerce and is interfering with, restraining, and coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act and thereby did engage in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. I find and conclude that by these actions the Respondent did refuse to bargain collectively and is refusing to bargain collectively in good faith with the Union and thereby did engage in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(5) and 2(6) and (7) of the Act. Finally there is for disposition the amendment to the complaint alleging further , in essence, that a complete contract was submitted by the Respondent to the Union on March 18, 1966, reduced to writing by the Union and then submitted in written and executed form to the Respondent on April 1, 1966, and which the Respondent refused to execute. As previously indicated there is ample credible testimony of record herein establishing the close contact and communication between Whitebook and Borg. Business matters were touched on even at social gatherings attended by them. It is clear that starting with the very first meeting on June 8, 1965, Whitebook met both prior to and subsequent to the meeting with Hall, Borg, and Freidman , going over the proposals. Similarly on June 21, according to Whitebook's own testimony, the Company's counterproposal had been discussed with Borg and Freidman prior to the meeting. At the meeting of February 16, Whitebook reported to Ungerman that Borg refused to budge on the so-called formal matters, insisting on six exclusions , a 3-year contract without wage reopeners , no termination, no right of renewal at the end of 1 year, and no changes in the grievance procedure. According to Whitebook, at this meeting Whitebook pointed out to Ungerman that Borg would not have what Whitebook called a closed-union shop, that they (Respondent) would never agree to a proposal of compulsory union membership. I do not credit this account by Whitebook. Subsequently, according to Whitebook, Ungerman asked Whitebook to "submit the revisions that we had said, that with possible excluding these matters that Borg was adamant about so that he (Ungerman) could formally, as I understood it, submit it to his principal." According to Whitebook, pursuant to Ungerman's request he prepared new pages , revisions , or superseded pages to be submitted and attached to the proposal which was still being used which was the proposal of August 27, 1965, and "I included in these changes that we had, Borg had approved." Whitebook sent this with his letter of March 18,1966. 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Respondent would have us view the lengthy discussions leading up to Whitebook's letter of March 18 forwarding the agreed-upon revisions to be included in the basic document from which the parties were then negotiating as having no relation to the basic document, as having been negotiated as it were, in a vacuum . I do not so view it. I find that when Whitebook, with Borg's approval, forwarded the revisions on March 18, clearly indicating approval and agreement and requesting their inclusion in the basic document, that this is a clear act of acceptance and agreement by both Whitebook and his principal, Borg, not only with the revisions but with all the provisions of the basic document as then revised. The Respondent itself took the position in its brief that it agreed to everything contained in that proposal except for the union-shop clause requiring as a condition of continued employment the joining and maintaining of membership in the Union. I am also persuaded by the fact that while professing that the Respondent never intended to, never would, and never did agree to a union-shop provision which would require its employees to join a union and maintain membership therein as a condition of continued employment , the fact is that the Respondent continued to bargain over a considerable period of time on the matter of excluding six employees from this provision . When the provision now offered by the Respondent , which does not require its employees on the rolls at the time of the execution of the agreement to join the Union within 30 days of execution, is offered with the six exclusions contained therein, the question arises as to why it is necessary or was necessary at all to have negotiated over this matter since under these circumstances the exclusions are meaningless . What would these employees be excluded from: The exclusion becomes superfluous. This is an additional factor persuading me that the Respondent , when negotiating with respect to the exclusions , was in fact negotiating relative to a provision requiring employees on the rolls at the time of the execution of the agreement to become members of and maintain membership in the Union as a condition of employment. The Board in deciding whether under these circumstances the employer and the Union have in fact arrived at an agreement that the employer is obliged to embody in a written contract upon the Union's request is not strictly bound by technical rules of contract law. Lozano Enterprises v. N.L.R.B., 327 F.2d 814 (C.A. 9). I find- in the circumstances of this case that Whitebook and his principals , by their course of conduct throughout the negotiations , gave the Union the unmistakable impression that they were working closely together on the negotiations , often prior to the meetings , sometimes subsequent to the meetings . By Whitebook's letter of March 18, 1965, which, written by a lawyer well versed in contract law and at a point in time when he has clearly communicated with his principals , states that he is forwarding revisions agreed upon and requests that the revisions be substituted for prior pages of the proposed contract between Borg Steel Corporation and the Union (emphasis supplied), I find that the Respondent in fact agreed to the provisions as then negotiated . As the court stated in Lozano, "In our view, the employer' s arguments may be accepted as stating good technical contract law, but we do not think that in this particular case they state good collective bargaining law. We do not think that, in deciding whether , under a particular set of circumstances, an employer and a union have in fact arrived at an agreement that the employer is then obliged to embody in a written contract upon the Union 's request , the Board is strictly bound by the technical rules of contract law." A collective -bargaining agreement is not an ordinary contract for the purchase of goods and services , nor is it governed by the same old common -law concepts which control such private contracts . John Wiley & Sons, Inc. v. David Livingston, etc., 376 U.S. 543, 550. In the case at hand Whitebook had authority to negotiate for the Respondent corporation with the limitation that any agreement would have to be approved and ratified by Borg. In the posture of the negotiations on March 18, 1966, when Whitebook sent his revisions they had been clearly approved and agreed to by Borg to be added to the proposed contract between Borg Compressed Steel Corporation and the Union. I find therefore that by this action Borg agreed to and ratified the agreement as it was then orally constituted. It is well settled that the refusal by an employer on the request of a labor organization to sign a written contract embodying the terms of an agreement which has been accepted concerning wages, hours, and working conditions is a refusal to bargain collectively in violation of Section 8(a)(5) of the Act. H. J. Heinz Company v. N.L.R.B., 311 U.S. 514. Accordingly, I find that the Respondent agreed orally to the terms of the proposed contract (dated April 1, 1966), as reduced to writing and executed by the Union, and that by its subsequent rejection thereof by its counterproposal of May 18, 1966, and by its refusal to execute the same, the Respondent did refuse to bargain collectively in good faith with the Union and did thereby engage in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and (5) and 2(6) and (7) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY The General Counsel seeks an order requiring the Respondent to execute the agreement reduced to writing and signed by the Union dated effective April 1, 1966. As I have found hereinabove , the terms of this agreement were agreed to by the Respondent on March 18, 1966, including the provision for a union shop with six exclusions. The Respondent is legally required to execute this agreement as reduced to writing and I shall include in the Recommended Order herein a provision to that effect. In so doing, I bear in mind the protestations of the Respondent that it is ready and willing to execute a contract with the Union embodying the provisions of Respondent's proposed contract of May 18, 1966, which, to paraphrase the Respondent , is substantially the same as that of April 1, 1966, except that it does not include the union shop . To order the execution by Respondent of the April 1, 1966, agreement is to require it to do more than to stand by its agreement including the union-shop provision with six exclusions . While the General Counsel and complaintant seek an order requiring the Respondent to pay backpay to all employees under that contract with 6 BORG COMPRESSED STEEL CORPORATION percent per annum interest, I am not inclined to recommend it, noting on the record the fact that this is a small company in a highly competitive situation and that it sustained losses in the preceding year. Under these circumstances, I do not believe that a useful purpose in terms of the statute would be served by assessing the fullest possible make-whole provision. I will therefore include a provision in the Recommended Order requiring that the Respondent, at the request of the Union, proceed to execute the agreement of April 1, 1966, promptly and without delay, that the contract as executed be effective as of the date of its execution by the Respondent, and that its term be extended so as to expire or terminate 3 years from the date of its execution by the Respondent. CONCLUSIONS OF LAW 1. Tulsa General Drivers, Warehousemen & Helpers, Local Union No. 523, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act 2. Borg Compressed Steel Corporation, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. At all times since May 14, 1965, the said Union has been the exclusive representative of all the employees in the unit herein for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 4. By negotiating in bad faith with the Union with no intention to enter into a final or binding collective- bargaining agreement, by repudiating and withdrawing a provision for a union shop after incorporating same in a proposed collective-bargaining agreement, by refusing to execute a written agreement embodying terms and provisions orally agreed on, and by the totality of its conduct the Respondent has failed and refused to bargain in good faith with the Union and has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act, and has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act, and thereby has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The unfair labor practices enumerated above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this case, I recommend that the Respondent, Borg Compressed Steel Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Negotiating in bad faith with the Union and refusing to execute a written agreement embodying terms and provisions orally agreed upon. (b) In any other manner refusing to bargain collectively concerning rates of pay, wages, hours of employment, and other conditions of employment with the said Union as the exclusive representative of its employees in the above- described unit. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form labor organizations, to 403 join or assist Tulsa General Drivers, Warehousemen & Helpers, Local Union No. 523, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Upon request, bargain collectively with Tulsa General Drivers, Warehousemen & Helpers, Local Union No. 523, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of all the employees in the above-described unit concerning rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an understanding is reached embody such understanding in a signed agreement. (b) Upon request, execute promptly and without delay the agreement dated April 1, 1966, embodying the terms and provisions orally agreed on previously. (c) Provide for said agreement to be effective as of the date of its execution by the Respondent and extend the term thereof so as to terminate 3 years from the date of execution by the Respondent. (d) Post at its plants in Tulsa, Oklahoma, and Sand Springs, Oklahoma, copies of the attached notice marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for Region 16, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 16, in writing within 20 days from the date of the receipt of this Decision and Recommended Order, what steps it has taken to comply herewith.'I ' In the event that this Recommended Order is adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " i In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT bargain in bad faith with Tulsa General Drivers, Warehousemen & Helpers, Local Union No. 523, with no intention of arriving at a final 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD binding agreement nor refuse to execute a written contract embodying terms and provisions orally agreed upon. WE WILL NOT in any other manner fail or refuse to bargain collectively concerning rates of pay, wages, hours of employment, and other conditions of employment with Tulsa General Drivers, Warehousemen & Helpers, Local Union No. 523, as the exclusive representative of our employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain , or coerce employees in the exercise of their right to self-organization , to form labor organizations, to join or assist Tulsa General Drivers, Warehousemen & Helpers, Local Union No. 523, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all such activity. WE WILL, upon request, bargain collectively with Tulsa General Drivers, Warehousemen & Helpers, Local Union No. 523, as the exclusive representative of all employees in the bargaining unit described below, concerning rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an understanding is reached, embody it in a signed agreement . The bargaining unit is: All employees working at the employer's establishments located at 1032 North Lewis, Tulsa, Oklahoma, 707 East Archer, Tulsa, Oklahoma, and Sand Springs, Oklahoma, including truckdrivers reporting to 1032 North Lewis, Tulsa, Oklahoma, excluding all office clerical employees, guards, watchmen, and supervisors as defined in the National Labor Relations Act, as amended. WE WILL, upon request, execute promptly and without delay the agreement dated April 1, 1966, embodying terms and provisions orally agreed upon, will make such agreement effective as of the date of our execution thereof, and will extend the term thereof to terminate 3 years from the date of our execution thereof. BORG COMPRESSED STEEL CORPORATION (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, Room 8A24, Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 334-2921.