Raybestos-Manhattan, Inc.

396 DECISIONS OF NATIONAL General Asbestos & Rubber Division , Raybestos- Manhattan , Inc. and Textile Workers Union of America, AFL-CIO, CLC. Case I I-CA-3203 November 27, 1967 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On August 14, 1967, Trial Examiner Herman Tocker issued his Decision in the above-entitled case, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the General Coun- sel filed exceptions to the Trial Examiner's Deci- sion and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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 briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommenda- tions 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 Recom- mended Order of the Trial Examiner and hereby or- ders that the complaint herein be, and it hereby is. dismissed in its entirety. I In the absence of exceptions thereto, we adopt pro forma the Trial Ex- aminer's finding that Respondent did not violate Section 8(a)(1) of the A -,t by encouraging employee Ackerman Gerald to refrain from seeking it e Union's advice on matters pertaining to working conditions TRIAL EXAMINER'S DECISION 1. STATEMENT OF THE CASE HERMAN TOCKER , Trial Examiner : This proceeding, with all parties represented , came on to be heard before me at a hearing in Charleston , South Carolina, commenc- ing April 18 , 1967, and concluding April 19 . Following a charge filed by Textile Workers Union of America, AFL-CIO, CLC, December 19, 1966 , duly served on the Respondent , the General Counsel , by complaint dated February 21, 1967, duly served on that day, in- LABOR RELATIONS BOARD stituted this proceeding alleging (a) four violations of Sec- tion 8(a)(1) of the Labor Management Relations Act, 1947, as amended, involving interference, discrimination, and threats concerning protected union activities, (b) two alleged violations of Section 8(a)(3), one being a discharge and the other a 2-day suspension from employ- ment; and finally (c) three alleged violations of Section 8(a)(5) arising from two or three claimed unilateral wage increases, one unilateral change in the wage structure, and "a fixed and adamant attitude against granting dues checkoff." The Respondent appeared by counsel and filed its answer March 2, 1967. It admitted all jurisdictional al- legations, denied that it had interfered with any protected union activities of its employees, denied that both the discharge and the suspension from employment had been because of union or concerted activity of the persons in- volved and asserted that they were for causes not pro- tected by the Act. It admitted that Textile Workers Union of America, AFL-CIO, CLC, had been selected by its employees in the appropriate unit on June 15, 1966, for the purpose of collective bargaining, and that on June 23 that Union had been certified as the exclusive bargain- ing representative for those employees. It asserted that at various times it had met with and negotiated with the Union upon matters which by law it was required to negotiate but denied that it had granted unilateral wage in- creases, had made unilateral changes in the wage struc- ture, and had maintained "a fixed and adamant attitude" against granting dues checkoff. It qualified its denial of one of the allegations of interference with union activities (that concerned with whether a certain member of the Union's negotiating committee had not been permitted to resume his regular duty when he returned to work follow- ing negotiating sessions but had been required to sweep floors instead) by alleging affirmatively that he was treated no differently than any other employee. Its long- standing practice had been that when an employee returned to duty following commencement of his shift and assignment of his particular work to another employee, the substitute employee was not taken off the job. The late employee was not permitted to take on his regular job but was assigned, instead, to other available work so that he might have some @arnings during the remainder of the shift to which he had returned. It alleged further that this matter had been discussed at the bargaining sessions and, at the request of the Union, it had modified the established practice and this member of the negotiating committee "was thereafter returned directly to his regular duties upon his return from bargaining sessions." It also qualified its denials of the alleged unilateral change in wage structure and alleged adamant attitude against granting dues checkoff. It alleged that the change in wage structure involved an operation known as the "Beamer Operation," admitted that shortly after "Union represen- tation commenced" but in accordance with a determina- tion made long prior thereto it unilaterally (but inadver- tently) had "changed the method of pay of approximately 7 persons ... from piece rates to hourly rates, without change in total pay" but promptly, after its attention had been called to this, it gave the Union complete informa- tion about it and the reasons and the circumstances lead- ing to it; that the matter was fully discussed and disposed of at bargaining sessions in a manner which "appeared to be [to] the full satisfaction of the Union Negotiating Committee." It denied that its opposition to dues 168 NLRB No. 54 RAYBESTOS-MANHATTAN, INC. 397 checkoff was in violation of its obligation to bargain in good faith and claimed that, on the contrary, this position was hard bargaining, no different from its bargaining with respect to other matters, but that the Union had "refused to bargain in good faith, by maintaining [its own] fixed and adamant attitude that it would not sign a contract un- less and until such contract contained" a dues checkoff provision and had sought to compel enforcement of that fixed and adamant demand by calling a strike on Febru- ary 27, 1967. It also categorically denied all conclusionary allegations that the law had been violated in any respect. II. ISSUES In substance, the issues are: A. Had Respondent sought to discourage Akerman Gerald, an employee member of the union negotiating committee, from seeking the Union's advice on matters pertaining to working conditions? This involved an al- leged remonstrance by Marion Oliver, the plant manager, that Gerald had not gone through the Company's established grievance procedure with respect to a certain work incident but had gone to the Union instead for ad- vice B. Was Ancil Gathers, a member of the union negotiating committee, wrongfully prevented from resum- ing his regular work upon his late return to his shift fol- lowing bargaining sessions and wrongfully assigned to sweep floors or do other floor work in retaliation for or because of his union activity? Incident to this we have collateral issues whether the Company had an established practice not to permit late arrivals to engage in their work when already assigned to others and whether the entire matter eventually had been settled when the Respondent changed the alleged established practice following com- plaint by the l nion and adjustment during the course of negotiations C. Did Thomas Walker, an admitted supervisor, tell an employee, one Charles Rabon, that another employee, Wesley Griggs, "was asking for trouble by wearing that union badge"? (Apart from the threat for wearing of union badges this issue has a bearing upon another issue, to be mentioned below, whether Griggs had been discharged because of his union activities ) D. Did the same supervisor, Walker, tell Rabon that Respondent's general manager would close the plant be- fore ranting the union-dues checkoff? E Was Wesley Griggs discharged because of his union activity and for the purpose of discouraging mem- bership in the Union? F. Was Akerman Gerald laid off for 2 days because of his union activity or protected "concerted activity"? G Two employees were placed on an increased hourly rate and another testified merely that he had received a "raise " Were these unlawful changes in pay because they had not been negotiated with the Union? H. Assuming, as is admitted, that the seven employees on the beamer operation had had their method of pay changed from a piece rate to an hourly rate without prior consultation with the Union, which by then had been cer- tified, had this unilateral change, technically a violation of Section 8(a)(5) of the Act, been fully settled to the satisfaction of the Union? Further, even if it was not so settled, considering all the circumstances and upon the whole record, had the change been made for legitimate business reasons rendering inappropriate the entry of an order herein' I Finally, was a genuine impasse reached on the issue of dues checkoff or had the Company utilized its refusal to agree to dues checkoff "as a cloak . to conceal a pur- poseful strategy to make bargaining futile or fail"? N L R.B v Herman Sausage Company, Inc, '75 F 2d ' '9, 232 (C A 5): N L.R B. v. Reed & Prince Manuflu- turing Company, 205 F.2d 131 (C.A. 1). III PRELIMINARY OR BACKGROUND Rayhestos- Manhattan . Inc., is a corporation having its principal plants in Passaic, New j ersey, and Stratford, C onnecticut . It has other plants in Manheim , Pennsyl- vania, Crawfordsville , Indiana, Neenah, Wisconsin: Ful- lerton, California , Columbus , Mississippi, eterboro, Ontario, Canada : and finally , the plant or division known as the General Asbestos and Rubber Division in North (_ harleston . South Carolina . Only this North Charleston plant, (MARCO, is involved in this proceeding The plants in Passaic , Manheim, Crawfordsville, Neenah, and Peterboro are organized and the employees there are represented by unions other than the Union in volved here. The General Asbestos and Rubber Division , at North Charleston , the division with which we are here con- cerned, was organized by Textile Workers Union of America, AFL-CIO, CLC. This Union was selected for the agreed and appropriate unit in an election conducted under the supervision of the Regional Director of Region I I for the NLRB and was duly certified as the exclusive bargaining representative for the employees in the unit General Asbestos and Rubber Division (to which I may refer below , from time to time, as GARCO or as Respondent) is not a separate corporation . Its policy, however, is not controlled from the main headquarters of Raybestos-Manhattan , Inc Policy is controlled and determined locally under the directorship of a eneral manager who is also a vice president and a member of the board of directors of the corporation . He is Alvin F Heinsohn , a resident of North Charleston . He has been identified with GARCO ever since 1922, following his .raduation from college. GARCO originally was known as Charleston Metallic Manufacturing Company it was organized in 1895 , at which time it made packings for phosphate mining machinery It was not internally generated by Raybestos Manhattan , Inc , but, at some time not disclosed by the record , was merged into or acquired by Raybestos. Raybestos acquired both the physical assets and the managerial personnel in fact, another Heinsohn, Ernest Heinsohn , is works manager (;ARCO also has it factory manager , Marion Oliver, a comptroller , George Ducker, and a personnel manager, ,loseph.l Sullivan. Except for the allegations in the pending complaint, it is not suggested that the Respondent bore any animus against the Union, against labor organizations in general, or against collective bargaining Also, except for those al- le ations and despite a short strike against the Company during the course of the contract negotiations , Respond- ent's relations , both with the Union and its employees, appear to have been good . The 4 alleged violations of Section 8(a)(I) teach isolated to a single employee), the alleged discharge of one employee , the alleged 2 day suspension of another, the alleged unilateral pay in- creases for 2 or 3 employees , and the alleged unilateral change of method of pay for 7 employees (apart from the controversy over the dues-checkoff clause), in the ag- gregrate involving only employees Fleming, Gerald, Gathers, Rabon. Griggs , and the 7 on the Beamer Opera- 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion (a total of 12), must be weighed against and in the context of a plant employing more than 60(1 persons and the fact that all this is alleged to have happened while otherwise concededly good-faith negotiations were being conducted with the Union On July 27, 1966, 4 days after the Union was certified, the first negotiating meeting was held. Additional meetings were held August 17 and 31, September 12 and 26, October 5, 8, 13, and 24, November 3, 10. and 17, December 12, January 10, 1967, January 20, February 3 and 16, and March 9 and 15. (Thus, two meetings were held following the issuance of the com- plaint.) The parties were unable to agree on a contract. It would appear that the failure to agree is attributable to the impasse reached on the Union's demand for chec!, off and the Company's refusal to give it. During the course of a discussion concerned with the question of ad- missibility of a batch of handbills, I made the remark, "Well, one of the issues is the allegation in the complaint that the Respondent adopted an adamant attitude with respect to checkoff I think this is probably the most im- portant issue of the three [8(a)(5) issues] " To this the General Counsel responded, "Yes, Your Honor, that is correct " (The three alleged 8(a)(5) violations to which I had referred were the alleged wage increases given to two or three' employees, the alleged change in a seven-man operation from an incentive rate to an hourly rate, and the alleged "fixed and adamant attitude against granting dues checkoff" in the proposed contract Immediately following its certification, the Union en- tered upon a practice of keepin_ the employees informed of all developments No less than 20 bulletins, handbills, or fliers were distributed This continued until at least the end of March 1967 Many of these bulletins or handbills purported to keep the employees informed as to the progress of the contract negotiations between it and the Respondent. They set forth, as well, the Union's reasons for demands being made by it The Respondent also is- sued bulletins or reports. A total of 15 such communica- tions have been received as part of the record in this case, the first being dated August 4, 1966 The record also contains copies of proposed contracts or other materials or information exchanged by the parties during the course of negotiations In the resolution of all issues with respect to which credibility or oral testimony became a factor, I have weighed all the probabilities, considered the demeanor and conduct of the witnesses, their candor or lack of it, their objectivity, bias, or prejudice, their understanding of the matters concerning which they testified, whether their testimony has been contradicted or sufficiently im- peached, whether parts of testimony should be accepted when other parts are rejected, consistency, plausibility and probability, and the effect which leading questions might have had on the answers elicited thereby Now, upon the whole record and after considering the contentions of the General Counsel made orally on the record and also the brief submitted by the Respondent following the conclusion of the hearing, the following are my: poration manufacturing asbestos , textile, and related rubber products at its (GARCO) Division in North Char- leston, South Carolina. This division or plant is the only one involved in this proceeding . Respondent has admitted that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Labor Management Relations Act , 1947, as amended The National Labor Relations Board has jurisdiction of this proceeding and of the Respondent. B. The Labor Or,anization Involved Textile Workers Union of America , AFL- ( IO, CI_(, is a labor organization within the meaning of Section 2(5) of the Act . It filed the charge preceding the issuance of the complaint herein This charge was filed and duly served on December 19. 1966 C. The Alleged Unlau Labor Practices 1. The alleged encouragement of an employee member of the Union's negotiating committee to refrain from seeking the Union's advice on matters pertaining to working conditions Akerman Gerald was elected a member of the Union's negotiating committee on November 16. 1966. The Respondent had no knowledge of this until on or after November -13, 1966, on which day the Union 's Interna- tional representative sent it .i letter informing it that Gerald had been added to the committee The incident with which we are concerned here occurred in connection with another event which underlies a separate allegation that Gerald was suspended for 2 days in violation of Sec- tion 8(,t)(I) and (3) of the Act The background for both events, according to Gerald's testimony , is that another employee, one Harry Christopher, complained to him on November 18 that he had been improperly scheduled to "go off work" on the following Monday, November 21. Gerald took it upon himself to treat this as a grievance - first with the im mediate supervisor, one Whetstone, and following that with the production manager , William L . Stogner Stogner disagreed with Gerald and insisted that , accord- ing to the information in his possession , Christopher properly had been scheduled to be off on Monday. (Gerald supported his belief that Christopher had been scheduled improperly because, according to his own knowledge he, Gerald , was to be off on that day.) Gerald's continued testimony is that when he reported for work on the 21st his card was not on the rack and he was told to report to Supervisor Bingham's office. There he was asked to sign an incident report prepared by Bingham , now deceased The incident report was* This spinner [meaning , erald ] was picked for this job because , I felt they all made good work . They are payed [sic] premium pay for making good work, but this spinner has failed to do this. I have some bad work he made on Friday, November 18, 1966 So, I am laying him off for mak- ing this kind of work , for two days, November -'I and 22nd. IV. FINDIN(,S OF FACT A The Business of the Employer and Jurisdiction General Asbestos and Rubber Division . Raybestos- Manhattan , Inc (GARCO) is the Respondent in this case Raybestos- Manhattan, Inc., is a New Jersey cor- G Bingham Department Head Date 1 1 /21 /66 Curtner, accoramg to Gerald, after a statement by RAYBESTOS-MANHATTAN, INC. 399 Bingham about what the bad work had been, to which Gerald did not reply, and following Bingham's request that he sign the incident report, Gerald requested a break for time off. He utilized this time by consulting one of his fellow committeemen, Tucker Christopher. They decided that he would not sign the report He then returned to Bingham's office and informed him that he would not sign Bingham replied that it did not make any difference in any event and directed him to return to work on Wed- nesday, the 23rd We now come to the portion of Gerald's testimony on which reliance must be placed, if at all, for support of the charge that "an employee member of the union negotiat- ing committee" had been encouraged not to seek advice from the Union on matters pertaining to working condi- tions. Gerald says that upon his return to work on the 23rd he was directed to report to Plant Manager Oliver's office where the latter commented on the alleged bad work, which was disputed by Gerald. This was followed by a review by Oliver of the past procedure involving in- cident reports. He was reminded that the practice had been for the person involved to come to Oliver to talk about the matter and to use the Company's grievance procedure. Oliver then said "that I [Gerald] did not use company procedure, that I went to the union for advice when I should have come to him and ironed it out, and he asked me how come I didn't come to him ...... Gerald testified that he did not reply to this and that he was aware of the fact that when he had a grievance he was free to go to Oliver at any time to talk to him about it. Then, in response to another question, Gerald said that Oliver told him, ". . [T] hat the union wasn't in now He told me it didn't make any difference if I was for or against the union, that if the union came in that he would change, and if it didn't, he wasn't going to. He also told me that if I was going to continue to work at (,ARCO that I was going to have to be responsible for my work. He told me that the union wasn't in now and it wasn't my business to attend to other employees' affairs " This last sentence implied that there might have been other re- marks about Gerald's intervention on behalf of Christopher and Gerald later testified that there had been such remarks Oliver then told him that he didn't know what position Gerald might hold with the Union to which the latter replied that this was his "affair and so was what affected another employee " It is also Gerald's testimony that he did not inform Oliver that he was on the Union's negotiating committee. that no company official knew of his position with the Union, and that as of the time of this meeting he had not attended any negotiating meetings In summary. the main elements which may be distilled from Gerald's testimony with respect to this particular 8(a)(I) charge is that, following his intercession on behalf of another employee and his own refusal to sign an in- cident report criticizing his work and providing for his suspension, he had consulted with another member of the L.nion's negotiating committee as to whether he ought to sign the report All this was followed by Oliver telling him that the proper procedure if he, Gerald, had not been satisfied with or contested the report was for him to com- plain to Oliver and not to consult with the Union and that the Company had an established grievance procedure which, until changed by a contract with the Union, would continue to be the established grievance procedure. Oliver also promised that if the procedure was changed by such an agreement then the Company would follow the new procedure. ( diving Gerald's testimony the most favorable interpretation, Oliver seems to have been criti- cal of the fact that instead of resorting to the Company's established grievance procedure, Gerald had consulted with a fellow member of the negotiating committee Oliver's version of this incident (without at this time going into the testimony involving the legality of Gerald's suspension from work) is that he had learned of Gerald's refusal to sign the incident report and for that reason requested Gerald to report to him. He testified that he had asked Gerald three times why, if he thought he had been treated unjustly, Gerald had not come to see him and that Gerald never answered He then testified that he had asked Gerald whether he was familiar with the Com- pany's grievance procedure, and when Gerald said he was not, Oliver went over it telling himjust what it was. After some additional discussion concerning the in cident report, according to Oliver, Gerald brought up the question of Christopher's rotation on the job with respect to time off. It was in response to this, again according to Oliver, that he reminded Gerald that the Company had an established grievance procedure and did not have a con- tract with the Union at the time. There were no job stewards and, if Christopher had a complaint, it was Christopher's obligation to pursue it on his own behalf, in which event Oliver would be happy to discuss it with him. When Gerald said he did not know what the grievance procedure was, Oliver continued, he outlined it and ex- pressly stated that until such time as a grievance procedure had been established and written into a con tract with the Union. he would follow the Company's previously established procedure. Whether this particular charge is grounded upon (derald's intercession on behalf of Christopher or Gerald's consultation with a fellow member of the negotiating committee as to whether he would or would not sign the incident report, it is necessary to decide if Oliver's remarks, whatever they might have been, con- sidering the circumstances under which they were made and the entire context, constituted an interference with, or a restraint of or a coercion of Gerald in connection with his exercise of his union activities as a member of the union negotiating committee or his engaging in a "con- certed" activity on behalf of Christopher Gerald himself testified that Oliver "told me it didn't make any difference if I was for or against the union, that if the union came in that he would change, and if it didn't, he wasn't going to " (While I accept this testimony in general I do not accept the words, "if the union came in." The Union already was "in." I believe, as Oliver testified, that the entire remark included a reference to what the Company would do if and when a new grievance procedure was required under a written contract.) To decide whether there was in fact a violation, I am confronted with the necessity of reconstructing, in my own mind, what must have been the conversation as far back as November 1966, about which both witnesses testified in April 1967. Based not only on my observation of them but also upon the total or complete attitude of the Company, it is my belief that at best Oliver merely en- tered into a discussion with Gerald as to what was the Company's established grievance procedure and what it was then as opposed to what it might be under a contract to be made between the Union and it. This might have been before or after Gerald had taken it upon himself to act as a "job steward" even though there had been no ar- rangement for such a functionary. During the course of that discussion he reminded Gerald, as Gerald himself 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD admits he previously had been told by Oliver, that if Gerald had any complaint or grievance he was free to come to talk to Oliver about it. I do not believe that Oliver sought to dissuade Gerald from seeking the Union's advice on matters pertaining to working condi- tions. The documentary evidence shows and Gerald affir- matively testified that the Company had no knowledge of his official position with the Union and thus would have no motive to encourage him to refrain from seeking the Union's advice on matters pertaining to working condi- tions. Additionally, I make one more comment about the wording of the allegation in the complaint , "Encouraged an employee member of the union negotiating committee to refrain from seeking the Union' s advice on matters per- taining to working conditions ." Certainly, if a member of a negotiating committee had a problem concerning work- ing conditions and, for the purpose of engaging in his du- ties as a member of that committee, he sought to obtain the union's advice on matters pertaining to that problem and the employer either encouraged him to refrain from or sought to prevent him from seeking the union 's advice on those matters , there would be a clear violation . This is not at all the case here. Consequently subdivision (a) of part 7 of the complaint should be dismissed. 2. The alleged unlawful suspension of Akerman Gerald for 2 days This alleged violation is intermingled with , or grows out of, or is related to the alleged coercive interference with Gerald's activity as a member of the Union's negotiating committee , discussed and dismissed in the portion of this Decision immediately preceding. I shall try not to repeat what I have related in the preceding portion. I do regard it essential , however, to note that the documentary evidence and Gerald's testimony show that the Company 's first knowledge that he was a member of the Union's negotiating committee came on or after November 23, 1966, at least 2 days after the alleged unlawful suspension from work. It is con- tended , however , that because of Gerald' s union activi- ties the Respondent suspended him from employment for 2 days. Except for the alleged discriminatory discharge of Griggs, to be treated below, and the alleged discriminato- ry failure to return Gathers to his regular work following his return from negotiating sessions , no other discrimina- tion against any employee is claimed for this unit of more than 600 employees. It has been stipulated on the record , "that over a period of time, from time to time, various persons were laid off for poor work in the spinning department." An unfortunate factor related to this particular alleged unfair labor practice is that , apart from Gerald himself, the person most intimately concerned with it was G. Bingham and he was deceased at the time of the hearing. We have only his signed statement made at the time of the suspension concerning the facts upon which the suspen- sion was based. In West Texas Utilities Company, Inc., 94 NLRB 1638, and in Sam Wallick et at, d/b/a Wallick and Schwalm Corp., 95 NLRB 1262, the Board held that it does consider as evidence statements attributed to deceased persons but with great care. This, however, is not decisive of the problem. First, we are not here con- cerned with a statement attributed to a deceased person. Nor are we concerned with a statement made in connec- tion with or even in anticipation of a litigation . It appears to have been made by the person now deceased in the regular course of business and was presented to Gerald for confirmation at the time that it became effective. The most favorable testimony in support of the charge is that there was questionable work which Bingham believed merited disciplinary action and Gerald believed did not. Not only were the Respondent and all its officers unaware of Gerald's appointment to the union negotiating committee but there is no evidence at all that Bingham, prior to the time that he wrote the incident report and de- cided to suspend Gerald for 2 days, became involved in any way with Gerald's union activity or even Gerald's in- tercession on behalf of Christopher . The intercession was not with Bingham but was first with Whetstone and then with Stogner. The closest that Bingham is brought to the entire controversy is that he had been named by Stogner as being the person who had made up the schedule for Monday, the 21st of November. Gerald's testimony about his conversation with Bingham in connection with the incident report is merely, "Mr. Bingham handed it to me and I read it, and I asked him if he called that bad work and he said, `Yes, one bad bobbin could be bad work,' and I disagreed with him," Gerald's other testimony about the incident is that , "Oliver commented on the bad work, and I told him I didn't think it was bad work; I thought it was runable." (Emphasis supplied.) Thus, it appears that there was a genuine controversy about work done by Gerald and a difference of opinion. Bingham thought it was bad and Gerald thought it was "runable." The only other live testimony about the incident is by Oliver and Stogner. Oliver testified that there had been a report by both Stogner and Bingham about bad work and that it was not the first such incident in which Gerald was involved. He said that he told Gerald it was company pol- icy for the operator to assume responsibility for any material that a man worked on and, if Gerald was not willing to do this, his employment would have to be discontinued. Oliver continued, saying that Gerald agreed that he would assume responsibility for the materi- al. Stogner testified that he had questioned Gerald about "the bad work in the doff and he did admit knowing it ... [but] didn't consider it bad enough to give us any problem whereas we did . . . . It was definitely bad enough." I credit both Stogner and Oliver's versions of the event. After consideration of all the facts and circumstances, the Company's prior practice, and the written contents of the incident report prepared at the time of the happening of the event, with which report Gerald had been con- fronted, I am unable to conclude that Gerald was suspended for the 2 days because of his union activities. Consequently, part 9 of the complaint should be dismissed. 3. The alleged discriminatory action against Ancil Gathers, a member of the union negotiating committee, involving his assignment to sweeping floors or other floor work following his return to work after union negotiating sessions I am satisfied from all the evidence that it had been regular company practice, when an operator who had not appeared for work at the beginning of the shift came in be- fore the conclusion of the shift, not to assign that operator to his regular work on a loom but to give him other work. The Respondent's manager of industrial engineering was RAYBESTOS-MANHATTAN, INC. 401 called to testify from the company records but it was stipulated instead that he "will show that the universal custom of the company was that when a man came on in the middle of a shift, he didn't go to his regular work but went to some standby work that was available for him in the carding." This seems to me to be a reasonable prac- tice, whether it be justified because the Company does not want to take a man off work which he already has started or whether it is a device whereby the Company is enabled to determine responsibility for bad work in a par- ticular shift by having only one person responsible for the run made on that shift. When Gathers returned in the middle of a shift after completion of his duties as a member of the negotiating committee, his assignment to other work, even though such other work involved floor sweeping, was not a deviation from the established practice and was not a dis- crimination or retaliation against him for his union activi- ties. Moreover, I am satisfied that this problem was thrashed out completely at subsequent union negotiating sessions, was settled amicably by the parties and, in con- sequence of the settlement, that the Company abandoned the established practice and thereafter allowed not only Gathers but also other late arrivals to take on their regu- lar work instead of being assigned to "standby work." Subdivision (b) of part 7 of the complaint should be dismissed. 4. The alleged threat "that another employee was asking for trouble by wearing a union badge" This portion of the complaint is a forerunner to that in- volving the alleged discriminatory discharge of one Wesley Griggs. As a matter of fact, if the remark at- tributed to Thomas Walker, an admitted supervisor, "it looks like Wesley was asking for trouble by wearing that union badge" actually was made, it could be potent evidence supporting the charge that Griggs was discharged because of his union activities. This, however, did not materialize in view of my conclusion, below, as to what was the real reason for that discharge. The testimony in support of this allegation was given by Charles Rabon, an employee who was assisted in his work by Griggs and who seems to have become the confi- dant of supervisors. Rabon testified that after Griggs had been wearing a 4-inch union button for about a week, Walker in "early 1`'ovember" made the remark to him. This would fix the time as about 2 or 3 weeks before Griggs was discharged. Griggs (and others) did wear a union button which was strikingly different and more distinctive than some of those worn by other employees in that it was 4 inches in diameter while others were con- siderably smaller. We are asked to believe that Walker made this remark to Rabon even though Rabon himself and a total of at least five of all eight persons in Walker's department also wore union buttons. No organization campaign was in progress. The Union had won the elec- tion more than 4 months before. Contract negotiations were in progress. Rabon was not discharged or disciplined but, in fact, within a short time thereafter was promoted to a higher paying rate or grade. Walker, in his testimony, appeared to be quite candid and truthful. He admitted freely that he had made obser- vations to the effect that employees were wearing union buttons and that he had said, "Well there are a lot of union buttons around." He was unable to remember to whom he had made this remark. He admitted that he had talked to people in his department about the Union, and that Rabon was one of these. Other than admitting that he had commented on the number of union buttons being worn, he denied that he ever talked "to any employee un- derneath [him] about their wearing union buttons." (At quick glance this may appear to be inconsistent but I per- ceive a difference between making comments or observa- tions and "talking" to employees about the wearing of buttons.) Moreover, he freely admitted that he was una- ble to recall "every conversation" he had "with every em- ployee about the union." There was no effort to dodge or equivocate on this. I do not credit Rabon's testimony that Walker made the remark as quoted. I do not believe that Walker would have made such a remark to Rabon who himself was wearing a union button even though that button might not have been as distinctive as was the much larger one worn by Griggs. I have observed that Walker freely admitted having made observations about the wearing of union but- tons. This is quite understandable and it is entirely possi- ble if not probable that many of these comments were in- duced by the employees themselves. My reason for this is that in the early part of November 1966, at about the same time that Walker's alleged remark is supposed to have been made, the Union distributed a handbill in which it said: DID THE COMPANY TELL THEIR FOREMEN A VICIOUS LIE AT THE LAST FOREMEN MEETING? WE HAVE BEEN TOLD THAT THEY DID! WHAT WOULD THE COMPANY STAND TO GAIN BY TELLING THEIR EMPLOYEES LIES? There is much additional material in this handout. The contents were of such nature as to prompt and stimulate heated and emotional discussions with all foremen as to what they might have been told by the Company. During such discussions the Union's strength could have been vaunted as an answer to the query, "How much longer can we let GARCO discriminate against our members?" The wearing of union buttons is a demonstration of strength. Considering all the facts and circumstances and after my observation of both Walker and Rabon on the witness stand, I just cannot be persuaded that Walker took it upon himself to confide in Rabon and made the alleged remark in the words or substantially the words quoted. Con- sequently, subdivision (c) of part 7 of the complaint also should be dismissed. 5. The alleged remark that, "the Company would close the plant before granting the Union dues checkoff' This remark also was attributed to Walker and the wit- ness who so testified again was Rabon, the same one who had testified before. According to Rabon, in late Sep- tember 1966 , during a conversation in which he and Walker were discussing the Union, Walker asked him, "What's wrong? ... The union people don't trust you people to pay your union dues ?" and concluded with the remark that, "(I)n his opinion Mr. Heinsohn [he is the general manager and completely in charge of the GARCO Division] would close the plant down before he 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would ever give the union checkoff or have anybody tell him how to run the plant or what to do." Inasmuch as I have discredited Rabon and credited Walker with respect to the alleged threat against an em- ployee who had been wearing a large union badge, con- sistency would suggest but not require that I do the same forthwith with respect to this alleged remark . Walker specifically denied ever saying anything to Rabon about the plant closing . While Rabon's testimony is specific enough , purporting to be an actual quotation of a remark allegedly made by Walker, we are told by Rabon that he does not remember how the subject came up, that they had been discussing the Union , and something came up about checkoff. Consequently , even if the remark had been made , it is not possible for me to conclude that Walker had threatened or even suggested that the plant would be closed . The actual words quoted by Rabon are that Walker was expressing "his opinion." Even though Walker was a most insignificant supervisor (supervising only 8 employees in this plant of over 600), if what he had said actually had been a threat , not a mere opinion ex- pressed in a discussion the entire contents of which we do not know , then a finding of violation would be indicated. Star Expansion Industries Corporation , 164 NLRB 563, fn. 6. But, considering that this alleged remark is the testimony of Rabon , whom I do not regard as a reliable witness, I am unable to conclude that it was made - whether as an actual threat or as a mere opinion induced by questions or arguments addressed to Walker. There is still another factor which should not be overlooked. In late September or the first week of October 1966, the Union had distributed a handbill entitled , "LET'S TALK ABOUT UNION SECURITY." In this handbill there was an extensive discussion about checkoff. Whatever might have prompted Walker to express the opinion which he did express - if he did express such an opinion, which he denies - might have been remarks by Rabon and possibly other employees during a discussion inspired by the handbill , which remarks could have solicited and received this opinion from a supervisor so minor as to make him , for all practical purposes , just "one of the boys." Consequently, I cannot conclude that Respondent at any time threatened to close its plant before it would give the Union a dues checkoff in its contract. Accordingly, subdivision (d) of part 7 of the complaint also should be dismissed. 6. The alleged wrongful discharge of Wesley Griggs in violation of Section 8(a)(3) Respondent's attorney says of the discharge of Wesley Griggs, "The whole of the Griggs incident is unfortu- nate." I am fully in agreement with him in this respect. It is my belief that if Supervisor St. Laurent had not acted as precipitously as he did, Griggs never would have been discharged. This however is not the issue . The issue is, was Griggs discharged because of his union activity or for the purpose of discouraging membership in the Union? Upon all the evidence I hold that this was not so. Griggs had suffered an injury to his arm during the course of his employment which injury resulted in a 90 percent loss of use. The Company obtained for him the best medical attention and sought, quite diligently, to rehabilitate him. He was given some sort of work as soon as he was able to do it and was moved gradually to the position at which he was working at the time of his discharge. His job was called "creeling." This required him to watch the bobbins as they were being unwound for feeding into a loom and, when a bobbin was almost run out, he had to pull it off, replace it with a new bobbin, tie a knot from the new bobbin to the yarn which had been coming from the old bobbin, and wind it back onto the new bobbin so that there would be a continuous feeding of yarn to the loom. This knotting operation, if not properly done, could cause difficulties in the weaving because the knot could be too big, it could have ends which were too long, or it could be so loose that it would come apart. There is much testimony as to whether or not Griggs did this work satisfactorily. On the basis of all the testimony I would conclude that, taking into considera- tion his physical disability, he did more than a fair job and that his work actually was satisfactory. The quality of his work is, however, not the determinative factor on whether he was or was not discharged in violation of the Act. I say this because of my finding of fact as to what was the actual reason for the discharge. Additional factors intended as background for the discharge are Walker's alleged remark to Rabon about Griggs and the union button, and Walker's alleged remark to Griggs, "Boy, it looks like they have got you in this thing too." I have rejected the testimony that Walker made the first remark to Rabon and I reject, as well, the testimony by Griggs that Walker had made the second re- mark to him. I have indicated above my belief that Walker is a witness to be credited. He specifically denied having made such a remark. Griggs placed the time as about the middle of September. It seems to me most un- likely that there should have been such an interest in and disparagement of organizing activity months after the Union had been certified. While I point to this as an ele- ment for consideration, my primary basis for finding that Walker did not make the second remark is that I credit him and do not credit Griggs. The supervisor who was directly concerned with this discharge was Fred St. Laurent. Respondent admits that it was aware that Griggs was a member of the Union and that he openly wore the big 4-inch union badge. St. Lau- rent denies, however, that the discharge was related in any way to Griggs' union activities. St. Laurent maintained a practice regularly to visit with the employees. During the course of these visits he discussed the work with them. It is entirely probable, as testified, that Griggs' work became a subject of discus- sions with both Griggs and Rabon as well as with other employees. During one of these conversations, according to Rabon, wherein Rabon seeks to make it appear that St. Laurent was looking for a reason to discharge Griggs, he testified, "I asked him [St. Laurent] if he couldn't get Wesley [Griggs] another job or something that was more suitable for him." Rabon continued that St. Laurent re- marked that "Wesley was fair with figures .... `pretty good with figures,"' and also said, "I have been trying to work on him for a job in the lab or something he can do that won't be holding anybody back." Certainly this does not demonstrate that St. Laurent was intent on discharg- ing Griggs. On the contrary, if anything, it indicates that he was trying to solve what in his opinion might have been a performance problem by considering Griggs for transfer to another job which he might perform more satisfactorily. In any event there came a time when Griggs was discharged. (The time of the discharge is placed as having RAYBESTOS-MANHATTAN, INC. come within 3 days after Griggs had made a motion at a union meeting that the employees go out on strike. There is no evidence that the Respondent became informed of this fact before the Union passed out a handbill saying so.) It is alleged that Griggs was discharged on November 21 about 2 o'clock in the afternoon. His testimony is: . Mr. St. Laurent called me from my job and we walked off about 40 feet, and he told me, he said, "Wesley," he said, "I have had some complaints about your work"; he said, "I guess you know about it," and I said, "No, I don't other than the problem I have always had with tieing a knot." And he said, "Well, I tell you," he said, "You will do it right." And I just told Mr. St. Laurent, I said, "Fred, says who; how are you going to make anyone do what they can't do, I always do the best I can." He said, "Well, you go home, you just go home and I will let you know whether to come back or not. I saw that he was mad, and so I just turned around and walked straight out; I didn't punch out; I just walked straight out and I talked to Mr. Willis five minutes later. This was the end of the conversation according to Griggs. His testimony continued to the effect that, on the following day when he reported for work, he did not find his card and eventually spoke to St. Laurent who told him that Messrs. Sullivan and Oliver were discussing his case and that they would let him know later when he would be permitted to go back to work. He was told to call on Friday, the 25th, and, after calling St. Laurent on that day, was told that Sullivan wanted to talk to him. Griggs says he saw Sullivan on that day and that Sullivan told him that he would let him know in a day or two what the Company's decision would be. He next called Sullivan on Monday, November 28, and asked him whether the Company was going to let him return to work but Sullivan said, "I thought you knew you were fired when you left last Monday." Griggs appears to have gone through the Company's established grievance procedure. He testified that during one of the conversations with Oliver, the plant manager, Oliver had told him that if he "had `played ball' with them, [he] wouldn't have had the problem [he] had." Thus, it would appear from Griggs' testimony, that he was under the impression that he merely had been laid off or suspended on Monday the 21st, and that at some later time this suspension was converted to a discharge, even though he quoted Sullivan as having told him , "I thought you knew you were fired when you left last Monday." (The Monday to which reference was made was November 21.) St. Laurent's version of the events is somewhat dif- ferent. There are, however, sufficient similarities which enable me, after my observation of both Griggs and St. Laurent and my consideration of the testimony of simul- taneous events and of what transpired during the grievance procedures, to come to the conclusion which I shall state later as a finding of fact. This is the version given by St. Laurent: Well, after these weavers complained about his 403 quality work, I stopped Mr. Griggs on the job and had a conversation concerning the quality and quan- tity of work and explained that these people were complaining about his work and before I could say anything else, Mr. Griggs looked at me straight in the eye and said, "Who's going to make me do it?" and this disrespect of me and disrespectful - no courtesy here - before I could say anything he started to turn away and walk away and said, "Is that all you want me for?" * And, I am not used to being-I've never had a situation of an employee being that disrespectful to me and in return I told Mr. Griggs to leave the job and I would let him know when he could return to work. St. Laurent agrees that this occurred in the middle of a working shift on the 21st of November- the same day as- serted by Griggs. He continued: After I told him to leave the department for more or less insubordination, he turned around and left the department, left the job. The following morning, like I say, the first shift is from 7 to 3: 30 and I report in at 8:30 in the morning to 5:00. When I got there at 8:30 , Mr. Griggs was in my office and before I could say anything when I walked in , he said, "When can I start drawing my unemployment money?" and again , I mean I said, "Mr. Griggs you were sent out for disciplinary ac- tion." And I said, "Nobody has released you or fired you and I told you you would be notified when you could return to work." Following this, St. Laurent testified that Griggs went through the plant-established grievance procedure. It is important to' note that the direct examination was concluded with this testimony to the effect that Griggs had proceeded through all the steps of the grievance procedure on up to Mr. Heinsohn, the plant manager, but nowhere did St. Laurent specifically say that Griggs had been discharged . More, however, is brought out in the cross-examination. Here he specifically denied that he had told Griggs he was being discharged at the time that he sent him home. He admitted that he thought that the reply given him by Griggs "was a very serious act of in- subordination ...... He said he "had never had this type of insubordination - this insubordination to me. I have been employed there for two-and-a-half years." Also, during the cross -examination , there was a good deal of testimony about the alleged poor work that Griggs had been doing , but I believe it has been established quite clearly that, regardless of how far from perfect Griggs' work might have been, it was satisfactory. After St. Lau- rent was asked when he decided upon the discharge he testified, in substance, that although he had not discharged him at the time of the alleged insubordination, he decided at about that time or soon thereafter that he would recommend that Griggs be discharged and he made this recommendation during his discussions of the alleged insubordination with his own supervisor - Oliver, the plant manager, and Sullivan, the personnel director. It 336-845 0 - 70 - 27 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was following or during these discussions , according to his testimony , that the decision to discharge was made and Griggs was notified to that effect . It was brought out as well , that despite the fact that Griggs' testimony and St. Laurent's testimony both are to the effect that there was no actual discharge on the 21st of November and that Griggs merely had been sent home on that day following the exchange between him and St. Laurent , Griggs in- terpreted the action on that day as a discharge and re- peatedly asked about when he could start drawing his unemployment compensation. ' It is abundantly clear, from both the testimony of Griggs and that of St. Laurent , that whatever words might have been used by both of them during the exchange on November 21, St. Laurent was extremely angered by what he thought was insubordination - "mad," to use Griggs' descriptive term. There was testimony by other officials of the Company with respect to the discharge . Sullivan , whom I regard as a reliable witness, testified about an incident following a meeting on November 22 of a committee which is af- filiated with the South Carolina Industrial Commission. "[A]t this meeting was the Commissioner who had heard Mr. Griggs' case and after it was all over , he stopped me in the corridor and he said, 'I understand that you fired Griggs,' And I said , `We have?' and he said , `Yes, his at- torney called me this morning and said he had gotten in touch with him,' that we had fired him ...." (Emphasis supplied . This remark by the Compensation Commis- sioner contributes to my conviction that Griggs was under the impression that St. Laurent had discharged him on the spot.) Sullivan also testified to a remark by Griggs during one of the grievance meetings - "In Mr. Griggs' own words he told me that he did not mean that the way it was said . He said, `you know ten people can read the Bible and you get ten different versions .... [ Griggs was referring to] [w] hat he had said to Mr. St. Laurent, `Who is going to make me?"' Oliver's testimony was concerned with the various steps of the grievance procedure to which Griggs resorted and is generally to the effect that the matter of the discharge had been given consideration at all levels. The decision to discharge was based primarily on St. Lau- rent's report that Griggs had been insubordinate. Oliver denied that there had been any remark to Griggs about "playing ball." I believe that there is a large measure of truth coupled with a good deal of inaccuracy in the testimony given both by Griggs and by St. Laurent . I believe that St. Lau- rent's testimony , to some extent , glosses over the facts and that he tried to present a picture of a supervisor who had not lost his temper, had given calm consideration to certain conduct of an employee working under him, and, after such calm consideration, had concluded that he would recommend that the employee be discharged. Hav- ing made this recommendation , he was backed up by his superiors. However , that in my opinion is not what hap- pened. It is my belief that , although Griggs testified to words having been uttered which did not constitute a discharge , he understood and interpreted those words to mean that he had been discharged. It is also my belief that , regardless of whether Griggs merely asked St. Lau- rent how anyone could make anyone do what he could not do or whether he impudently said, "Who's going to make me do it?" St. Laurent understood him to have said the latter , became angered by what he regarded as outright insubordination , lost his temper, and peremptori- ly discharged Griggs when he thought Griggs had said, "Who's going to make me do it?" Believing that Griggs understood that he had been discharged , I believe also that he did go to St . Laurent's office the following morn- ing and ask when he would be able to draw his unemploy- ment pay. I believe as well that he complained to Willis that he had been discharged and that this complaint had been relayed to the Compensation Commissioner. To what does all this add up? It adds up simply to the fact that St. Laurent, whether correctly or incorrectly, came to the conclusion that Griggs had been insubordinate and had disrespectfully made the remark as to who was going to make him do better work . In a fit of temper St. Laurent then and there peremptorily discharged Griggs. This discharge had nothing at all to do with Griggs' union activities . I am firmly of the opinion that Respondent's higher officials bore Griggs no ill will and, in fact, sincerely sought to rehabilitate him. I am also firmly of the opinion (irrelevant as it may be) that, while they found it necessary in the performance of their administrative functions to support their intermediate supervisor , St. Laurent , if they themselves had been confronted with the situation they would not have dis- charged Griggs. Although , according to my reconstruc- tion of the events , it is my belief that the discharge occurred during the first argument between Griggs and St. Laurent, whether it occurred then or at a later time upon St. Laurent's recommendation , the ultimate result is not affected . Under either time version , the basic or real reason for the discharge was St . Laurent's resent- ment of what he regarded-correctly or incorrectly-as insubordination. Consequently, part 8 of the complaint should be dismissed in its entirety. 7. The alleged unilateral wage increases to employees This is the first of the three elements which are the basis for those portions of the complaint alleging a viola- tion of Section 8 (a)(5) of the Act. Employee Charles Rabon , the same employee who had testified to other matters involved in the proceeding, testified that he had applied to Supervisor St. Laurent for a raise but that St . Laurent had told him, "that he couldn't get me a raise, and he explained that the union had the raise blocked ; and so I asked him, `What about a promo- tion' because I was classed as a tape weaver, I un- derstood , and when , that's when something came up, that's when I said he did mention class but I couldn't say if it was third class or fourth class , or what class it is. I wouldn't know." The result of all this was that Rabon was paid fifteen cents more an hour. Following the conclusion of Rabon 's testimony a stipu- lation was entered into between the General Counsel and the attorney for the Respondent: . that on or about October 15th, a Mr. John Fleming was reclassified from porter laborer to machine operator to operate the W-3 waste machine and that reclassification did result in an increase in pay. I will stipulate that on or about November 18th a Mr. Charles Rabon was promoted from fourth class weaver to third class weaver which did result in an increase in pay and that to the best of my knowledge of this information was not in advance conveyed to the union. These are the only employees who can be involved in this allegation of the complaint. (While Akerman Gerald RAYBESTOS-MANHATTAN, INC. also had testified , in a general and conclusory manner, that he had received a raise in late September , there is no evidence as to what sort of a raise it was or that it was uni- lateral.) Following their promotions to higher rated jobs, Fleming and Rabon did receive higher wages and the Union was not notified of this. Rabon 's testimony itself discloses that the Respondent was well aware of the fact that it could not give him a wage increase without the agreement of the Union, and that it would not do so. The General Counsel does not claim and there is no evidence in the record on the basis of which any conclusion may be made that these reclassifications or promotions were devious devices to which the Company resorted for the purpose of avoiding its obligation to bargain in good faith with the Union about all changes in working conditions or to undermine the Union in any way. There is nothing in the record as to what the Employer's prior practice had been with respect to promotions and reclassifications but it does appear that the personnel structure was such as to make promotions and reclassifications possible. The unit involved comprised more than 600 employees . Contract negotiations were pending at the time , but no contract had been agreed upon between the parties. The evidence is not such as to justify a conclusion that these two or three employees were given unilateral wage increases in violation of the Employer's obligation to bar- gain with the Union as required by Section 8(a)(5) of the Act. The evidence is equally consistent with a conclusion that the Employer , in accordance with the regular manner in which its affairs had been conducted in the absence of a contract with the Union, changed the classifications of these employees or promoted them to higher grades, and that it was because of these changes or promotions that these employees received higher wages. No issue has been raised as to whether there was an established practice governing promotions and reclassifi- cations and there is no contention that Respondent did not have such a practice or that these changes were not made in accordance with that practice . The record, in fact, shows that there were different job classifications and different grades within job classifications . That being the case , the promotion or reclassification of two or three isolated employees from one existing job or job classifica- tion or job rate to another existing job or job classification or job rate is not a change in working conditions with respect to which the Employer is required by Section 8(a)(5) of the Act to negotiate with the Union in the absence of an existing contract and some specific provi- sion in that contract addressed to that contingency. Consequently , subdivision (a) of part 15 of the com- plaint also should be dismissed. 8. The alleged unilateral changes in the wage structure of employees The General Counsel embarked upon his proof of this allegation by proposing a stipulation , "[T]hat on or about August 20th , employee Edna Murray was changed from piece rate to hourly rate and this change was not discussed with the union." Respondent 's attorney declined to enter into that stipulation but stated that to the best of his information , "[T]his lady, Miss Edna Murray, was a beamer who is encompassed within the Respond- ent's answer in Paragraph 10." The General Counsel thereupon moved for judgment on the pleadings and decision on the motion was reserved. Paragraph 10 of the answer , upon which the General 405 Counsel relies for a finding of violation of Section 8(a)(5), is as follows: 10. As to Paragraph 15(b) of the Complaint, insuf- ficient information is set forth in the Complaint to ap- propriately plead , however, Respondent alleges that on one occasion , with respect to a small number of employees , in accordance with determinations made long prior thereto and prior to the Union achieving representational status, and at a time shortly after Union representation commenced Respondent, inad- vertently neglecting to give advance notice to the Union, changed the method of pay of approximately 7 persons in a Beamer operation from piece rates to hourly rates, without change in total pay , and that im- mediately, upon such action having been called to its attention by the Union , Respondent , at duly scheduled bargaining sessions fully apprised the Union of its action and of all reasons and circum- stances leading to its action , provided the Union with all information requested by it, and otherwise discussed and treated the matter at bargaining ses- sions to what appeared to be the full satisfaction of the Union Negotiating Committee. While the answer does admit that there had been a change of compensation from a piece rate to an hourly rate for approximately seven persons in the Beamer Operation, and that this change had been made without prior bargaining or consultation with the Union (which failure was claimed to have been inadvertent ) it alleges as well that the Union was fully apprised of the action, given all the information requested , and that the matter was discussed at bargaining sessions and treated in a manner which "appeared to be [to] the full satisfaction of the Union Negotiating Committee." It is important to note at the outset that this change in method of compensation was not that sort of conduct which resulted in a fait accompli so as to make it subject to the reasoning in Langlade Veneer Products Corpora- tion, 118 NLRB 985, 988 ; Central Illinois Public Service Company, 139 NLRB 1407, 1417; and Town & Country Manufacturing Company, Inc., 136 NLRB 1022, 1031. I consider first the motion for judgment on the pleadings. Such a motion requires, of course , that all statements alleged in the pleading must be deemed to be, and must be accepted as, true, and further that every fair intendment must be given to the pleading assailed. Para- graph 10 does admit that seven employees in the Beamer Operation had been changed from piece rates to hourly rates shortly after union representation commenced and without the Union having been given prior notice of the change. Although it alleges that the failure to give prior notice was inadvertent and the change in method of pay- ment did not result in change in total pay, there would still be a violation of Section 8(a)(5) because Section 8 (a)(5), which must be read together with Section 9(a), requires that an employer bargain with the representatives of his employees , "in respect to rates of pay, wages, hours of employment , or other conditions of employment ..." No proviso or provision is made to relieve an employer from such a failure to bargain even though the failure may be inadvertent and even though no change in "total pay" may result . Consequently , without more, there would ap- pear to be a technical violation of Section 8(a)(5). How- ever, paragraph 10 of the answer alleges as well that, "im- mediately, upon such action having been called to its at- tention by the Union, Respondent , at duly scheduled-bar- gaining sessions fully apprised the Union of its action and 406 DECISIONS OF NATIONAL of all reasons and circumstances leading to its action, pro- vided the Union with all information requested by it, and otherwise discussed and treated the matter at bargaining sessions to what appeared to be the full satisfaction of the Union Negotiating Committee." This additional material in paragraph 10 of the answer is an assertion that, although there was an initial failure to bargain collectively with the Union , this initial failure was cured promptly upon demand of the Union and that further , following the Union's demand , the Employer did engage in collective bargaining with it at duly scheduled bargaining sessions concerning the change , and that there was agreement upon a change. Thus, whatever admission may be con- tained in paragraph 10 to the effect that there was a uni- lateral change from piece rates to hourly rates on the Beamer Operation , this change later became the subject of collective bargaining, and whatever disagreement might have existed prior to such collective bargaining was settled amicably in the course of collective bargaining. That being the case and with nothing more (and there is nothing more) in support of the allegation in the com- plaint , the motion for judgment on the pleadings must be denied. The Respondent presented testimony in addition to and in support of the allegations made in its answer. Joseph J. Sullivan , its personnel manager, testified that during the course of the bargaining sessions the question arose with respect to the change in beamer rates from piecework to hourly work. His testimony continued. The beamer had been on an incentive basis ever since we started beaming yarn and it had been under consideration and advisement for many months to put it into an area of an hourly rated situation, more for the sake of quality control than anything else. We worked out an equitable set of rates based upon clas- sification and job and we made it effective back in August and the union raised the question as to why it was done prior to our sitting down and considering it with them . We told them that this was an error and we agreed to furnish them with a set of the rates by classification , by job, which we did at some sub- sequent meeting and the question was raised relative to a Mrs. Murray and a Mr. Wonzo Welch's earnings and it was finally determined that they were now making more money than they were on the incentive basis now that they were on the hourly rate. Later, in response to my question , Sullivan stated that this was the only situation or occasion when there was such or a similar change in working conditions. Thus, the facts set forth in paragraph 10 of the answer to the effect that the prior unilateral change in working conditions had become the subject of collective bargain- ing at regular negotiating sessions and that the con- troversy , if any existed , had been settled are supported by Sullivan's sworn testimony . This testimony stands un- rebutted on the record. It is the established policy of the National Labor Relations Board that settlements be en- couraged. Settlements between unions and management make for good labor relations, the goal of all our work. To the extent that there initially was a technical violation of Section 8 (a)(5) of the Act the controversy which ensued therefrom has been settled . The Union seems to be fully satisfied with that settlement. It is my considered judgment that there is no necessity for any remedial ac- tion and that an order is not necessary for the purpose of effectuating the policies of the Act. LABOR RELATIONS BOARD For this reason , subdivision (b) of paragraph 15 of the complaint also should be dismissed. 9. The alleged "fixed and adamant attitude against granting dues checkoff" This is the last of the elements upon which the General Counsel relies for praying that an order be entered herein holding that the Respondent violated Section 8(a)(5) of the Act. It has been stipulated "that all bargaining other than the bargaining with respect to dues checkoff was done in good faith." Apart from the alleged violation of Section 8(a)(1) to the effect that the minor supervisor, Thomas Walker, had expressed an opinion that the Company would close the plant before granting the Union dues checkoff, all the testimony proffered in support of the charge that this refusal to grant checkoff was a violation of the Respond- ent's obligation to bargain in good faith with the Union is to be found in that given by the Union's chief negotia- tor, Willis. His entire testimony was based on notes made by him of the meetings. He, himself, impeached these notes in a voluntary remark in another connection, "I don't keep very good minutes I'm afraid sometimes." As a consequence, not only is the correctness of the notes put into question, but also that of the testimony. As was said in Ladd, Some Observations On Credibility: Im- peachment Of Witnesses, 52 Cornell L.Q. 239, 243 (Winter, 1967): The courts are careful in their supervision of the use of notes or memoranda by a witness in answering questions put to him. If the witness is too dependent upon notes, it may indicate that he is reporting what the writing says rather than expressing his present memory of a past event. Willis testified concerning 13 negotiating meetings. Ex- cept for the first and second, he was able to testify as to what had transpired at the 11 remaining meetings only after referring to his notes for the purpose of refreshing his recollection. The following is the substance of his testimony con- cerning checkoff. At the second meeting the observation was made that the Company's counterproposal did not contain a checkoff clause. Attorney Smith, for the Com- pany, is quoted as having stated that the Company was opposed to checkoff because the Union performed a ser- vice and, if it continued to perform that service satisfac- torily, it would have no problem collecting its dues. It was not the business of the Company to collect the union dues. He testified that, in response to the Union's argu- ment that the Company's other plants had contracts providing for checkoff and this plant made numerous deductions from wages for various purposes, Smith said that the Company was not concerned with what may be the practice at other plants and, while admitting that GARCO did make numerous deductions from the wages of its employees, said it was opposed to checkoff and that the Union could collect its own dues in compensation for the service which it performed. Willis testified as to the third meeting, August 31, 1966, only that there had been a discussion of checkoff. The Union again brought up the matter of checkoff at the fifth meeting, September 26. The Company stated its opposition and suggested that other matters be taken up for negotiation. This was coun- tered with a repetition of the argument that the Com- pany's other plants did have checkoff and that the em- RAYBESTOS-MANHATTAN, INC. 407 ployees at GARCO deserved the same. To this, it is claimed, Smith replied only that the Union had the Com- pany's position which was that it was opposed to checkoff and that valuable time should not be wasted talking about it. The Company was reminded, during the sixth meeting, October 5, that it had a machine system for making out company checks, and was asked whether checkoff of union dues would result in additional expense, but it did not answer. Willis' notes for the October 14 meeting were only to the effect that the Company "was firm in their denial to grant a checkoff and again refused to talk about it " Another union negotiator, Victor Canzano, attended the union meeting, November 3. He brought up the question of checkoff and accused the Company of trying to destroy the Union by remaining adamant in its refusal to grant checkoff There was quite a heated discussion of checkoff on that day The fact that there was checkoff in other company plants again was brought up, but Smith answered that the employees at GARCO would be treated as well as others. He rationalized his position by handing the union negotiators a poem which, it later developed off the record, was really a dissertation to the effect that a practice may be started by one person, fol- lowed blindly by ever so many other persons, and, finally after many years and continued blind following, the original reason for it is forgotten. (I regret that I should have to refer to this off-the-record information as to the contents of the poem and it is entirely possible that my recollection of its contents may not be too accurate It is not of any importance in any event ) Willis testified that, at the 10th meeting. November 10, the Company had of- fered a package of monetary benefits There was an ex- tended discussion linking this with checkoff. The Com- pany regarded it as a very favorable package and urged the Union to submit it to the employees expressing its certainty that they would accept it without checkoff and the Union took the attitude that, if the Company agreed to checkoff, it would submit the package to the em- ployees. They were not able to agree At the 11th meeting, November 17. according to Wi - lis, there was an effort to discuss the checkoff clause but the C ompany said it would prefer to discuss the arbitra- tion clause When Canzano, the other union representa- tive, stated his willingness to discuss that clause but wanted to deal with checkoff first. Attorney Smith an- swered, "You have our position on checkoff. The Com- pany does not and will not collect dues " Although Willis testified that at the January 19, 1967, meeting, Represen- tative Canzano made two or three alternate suggestions for dues collection with the assistance of the Company. he was unable to tell us what these suggestions were He added, however, that Canzano had offered to pay the en- tire cost of the checkoff if the Company claimed it was too expensive. It refused to agree to Canzano's alterna- tive propositions, and Canzano charged that if that was the C ompany's position it was obvious it had no intention to grant checkoff and the only reason it could have for that would be to destroy the Union Willis then told of a remark to Attorney Smith that the Union would appreciate receiving at the next meeting "some language on a checkoff' but that Smith's reply to this was, "I'm sure you would. Mr Willis " This could have been sarcasm or jest but, whatever it was, it was the sort of banter one may expect at bargaining sessions ex- tending over a long period of time. At the next meeting, January 20. 1967, a union negotiator expressed his ina- bility to understand why the Company had requested a clause on "Employees Cooperation " This prompted At- torney Smith to say that if the Union withdrew its request for dues checkoff the Company would be glad to withdraw its request for the employees cooperation clause The last meeting, March 15, 1967, was attended by another union representative, Benet. who made vari- ous arguments in support of the checkoff request but At- torney Smith replied only with the suggestion that the Union and the Company ought to "get married and live awhile together" and that, at a later time or at some later contract negotiations, the Company would be "more prone to giving a checkoff." The Company was again re- minded that it did make numerous deductions from em- ployees' wages but this was answered with a remark to the effect that it regretted this Mr Willis' testimony about the various negotiations or efforts to negotiate at the meetings mentioned was fol- lowed by some general testimony to the effect that the Company never had approached the dues checkoff negotiations to the extent of submitting any proposal or alternative proposal for checkoff except that it had said that the Union would have "freedom to collect the dues anyway" it saw fit but it would not grant checkoff In response to an effort to get him to testify that the Com- pany might have made an assertion to the negotiators that its employees were not interested in dues checkoff, the witness answered only, "i'ossibly " This was fol- lowed by his disclaimer of knowledge as to who mi-ht have made that or such a remark. but he asserted that he knew it had been made by a company official The con- tinued testimony suggests that he made this inference because of the Company's prior suggestion that the Union submit its package proposal to the employees without a checkoff provision upon its belief or assurance that the employees would accept the package. He con- cluded his testimony with the remark that he had coun- tered this position of the Company by pointing out that the Union had over 50 percent of the employees signed up on checkoff cards, but no company official ever asked to examine or to see them There was no cross-examination of Willis. The (eneral Counsel also offered and there was received in evidence a company bulletin, dated November 11. 1966 This bulletin informed the em- ployees that substantial wage benefits were available to them, but that they were not getting them because of the Union's refusal to accept them unless the Company agreed to a checkoff of union dues. It gave as its reason for refusing to agree to a checkoff provision that it con- sidered it unnecessary for it to collect union dues out of money which was rightfully the employees' money "with or without a union " It urged them to think carefully be- fore signing any checkoff authorization repeating. "This money is rightfully yours whether you pay or do not pad dues to a union " It continued that it had bargained in good faith with the Union and intimated, somewhat inar- ticulately, that if a breakdown of negotiations resulted such a breakdown would be because of the inability of the Company and the Union to agree with respect to checkoff There were additional arguments that the Union had shown its true colors, that what the Union wanted was for the Company to collect the dues for it and, to set this, it was sacrificing the right of the em- ployees to receive the benefits which the C ompany was prepared to give and which were rightly theirs, that it did not believe it was under any obligation to collect dues on behalf of the Union, and that the Union ought to assume this obligation itself This bulletin to the employees ap- pears on the surface, to be extremely argumentative - al- 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD most a bypass of the designated bargaining agent It becomes otherwise , however, when we perceive that it was the Company ' s answer to handbills issued by the Lnion In one, calling a meeting for November 10, fol lowing a reference to a rumor about an offer of a raise in exchange for the checkoff demand , the Union charged that- THE STAI LING TACTICS OF ( ,ARCO HAVE 1iR000rHT OUR NEGOTIATIONS TO A DEADLOCK Prior to the issuance of the company bulletin and the union handbill lust quoted, the Union had issued another handbill calling a meeting for October 6 in which it en- gaged in an extended discussion of the checkoff problem It advised the employees that it had to have checkoff in order to have the money to pay for an arbitration proceeding should such a proceeding become necessary. The Respondent 's version of the negotiating sessions is found in testimony given by Joseph .1 Sullivan, its per sonnel manager, and Marion W Oliver, its plant manager. This is supplemented by the actual proposals and other written communications exchanged during the course of the negotiations and also by exhibits which include bul- letins and notices or handbills issued both by the Com- pany and the Union Sullivan's testimony as to the dates of meetings does not always coincide with that given by Willis but this is of no importance . He is brought quickly through the meetings of July 27, August I7, and 31, and September 12 At the September 26 meeting , according to him, a union representative had reminded the ( ompany that there was no agreement with respect to grievance procedure , arbitration , and checkoff, to which Respond- ent's attorney replied that there were more important things to be gotten out of the way Following this, other parts of the contract were discussed Other than this reference, according to him, there had been no discussion of checkoff at this meeting Sullivan testified that at the October 5 meeting, as had been testified by Willis, Union Representative Canzano brought up the matter of dues checkoff and remarked that the Company collected or checked off numerous items from employees ' wages According to him , however, At- torney Smith had not said that the Union had its position on checkoff and that the Company was opposed to it but merely had said that he would discuss dues checkoff in due time but that this was not the time to get into the matter. He added that there never was a flat refusal to consider dues checkoff His version of Attorney Smith's attitude toward dues checkoff at the October 24 meeting was that Smith told the union negotiators that the Com- pany had it under consideration at that time He next testified about the meeting of November 10 The Union informed the Company that it would accept the Com- pany's entire economic package provided that the union- security provision was included Attorney Smith replied that if "union security" meant "checkoff ." the Com- pany's position was that it would not agree to checkoff at that particular time According to Sullivan , the Union at this meeting supported its demand for union security by arguing that the expenses which it had incurred and would have to incur in Charleston required that it have checkoff to assure union security He agreed that there had been an effort to discuss checkoff at the November 17 meeting but, that in response to this. Attorney Smith had restated his position that more important thin, s had to be gotten out of the way before they got to it During the course of this discussion, Union Representative Canzano again brought up the ar- gument that the Company's other plants had checkoff but the only position taken by the Company's representatives at this time was that checkoff would be considered at some later date. (This is different from Willis' testimony that Canzano had been told, in response to his effort to discuss checkoff before discussing a proposed arbitration clause, that the Union had the Company's position on checkoft which was that it does not and will not deduct dues. It does not seem likely to me that sophisticated representatives of a company which has many plants, in some of which there is checkoff, would argue that it does not check off dues ) Sullivan's version of the January 10 meeting is that the Union said it had proposed a contract which it was willing to sign and the Company's attorney said that it had proposed a contract which it was willing to sign but the Union's position was that the Company's proposed contract did not contain a provision for dues checkoff The result of this exchange was that each party told the other that it was not ready to sign a contract at that time Although Willis had testified that at the January 20. 1967, meeting, a bartering or exchange proposition was made with respect to the Company's proposal for "Em- ployees' Cooperation" and the Union's proposal for dues checkoff, Sullivan found no reference to any discussion of dues checkoff in his notes of that meeting. At the meeting of February 3, the Union presented a new proposed contract but the parties were in disagree- ment on numerous items Dues checkoff was one. Fol- lowing this meeting of February 3. the Union com- menced its February 7 strike which continued until February 16, at which time another meeting was held Sullivan testified that there was no reference to dues checkoff at that meeting His testimony is the same with respect to the meeting of March 9. At the next and last meeting, March 15. dues checkoff was discussed. According to Sullivan. Attorney Smith told the t nion, "to show us the reasonableness of this union throu, h experience, let's live together for awhile and then these demands would probably be conceded to " He continued that Smith had commented on the fact that Willis had moved to Charleston and he could collect the dues. "The way you did it was a matter of election so far as you were concerned You could do it in the plant, out- side the plant as long as it did not interfere with produc- tion " Other than this, the witness was unable to recall any discussion of checkoff at this meeting Marion Oliver, the plant manager, testified also with respect to dues checkoff His testimony is generally to the effect that the position of the union negotiators had been that they had to have checkoff in order for the Union to survive and that the Company was well aware of this This, he said, was the Union's constant position throughout the negotiations On the other hand, the Com- pany's position was that it was the Union's responsibility to collect its dues and that, at some time when they had shown that they could live with the Company in a "satisfactory marriage" and what they could do for the Company, the Company would consider giving them the checkoff He said that the Company at all times told the union negotiators that it had the checkoff under con- sideration and that the Company never failed to give the checkoff problem consideration, nor did it ever fail to discuss it at the insistence of anybody present at the negotiating table It was so discussed but the parties had not arrived at any agreement. The Company being always willing to give the matter consideration, the matter still is RAYBESTOS-MANHATTAN, INC. 409 under consideration He was asked on cross examination whether he had not said that if the Union would live with the Company for a year the Company would consider dues checkoff. He denied having said this He claims he said that after a year's experience with the Union the Company would be in a better position to see how they were going to get along and to see what the Union could do for the Company and what the Company could do for the Union . He did not allow himself to be maneuvered into a position where he would be forced to admit that the Company refused to discuss the matter of union dues checkoff for a period of 1 year . He insisted that the matter was discussed and that the Company had said that it would be in a better position to give the matter more sen- ous consideration after a year. He, having injected the possibility that words other than "one year had been used," said that sometimes a year was mentioned, some- times "a while" was mentioned , perhaps 3 months, per- haps 6 months, perhaps a year , perhaps 5 years, "but we have an experience with each other which we don't have at this time." He held steadfast to the position that the view of the Company had been that it was important for it and the Union to live together for a year, but he denied that it ever took the position that it would be a year before they could have further discussion concerning dues checkoff. The General Counsel made clear that he did not regard this as the conventional surface bargaining case He stated that the bad-faith bargaining portions of the com- plaint were concerned only with "three areas [the alleged unilateral wage increases , the alleged unilateral change in wage structure , and] ... dues checkoff, not over-all bad faith bargaining " Subsequently , he agreed that the Em- ployer's alleged "adamant attitude with respect to checkoff . is probably the most important issue of the three " The main reliance for the contention that there was bad-faith bargaining here is on the Board 's decision adopting that of the Trial Examiner in H R. PorterCoin- pany, Inc , 153 NLRB 1370 In that case the Trial Ex- aminer, after briefly reviewing the law to the effect that checkoff is a mandatory subject for collective bargaining, that such bargaining may reach an impasse provided that there is good faith and that no party is required either to agree to a proposal made by another party or to make any concession . held that all of this may not be resorted to as it strategy for the purpose of making bargaining futile or fail He concluded that. ". . what is required is a good- faith approach to the issues between the parties with a serious intent to reach ultimate agreement on an accepta ble common ground . [ and that the question of whether there has been such a good-faith approach when there has been a refusal to grant checkoff requires a decision or determination whether this refusal] was a mere device to frustrate agreement on a contract .. ." Having concluded that Porter had maintained its posi- tion with respect to checkoff for the purpose of frustrating agreement with the union , he held that it had engaged in bad faith bargaining. In coming to that conclusion he re- lied upon many elements which do not appear in our case. There had been a prior bad-faith bargaining case in which Porter had been found in violation . I n the prior case it had been held that Porter's chief negotiator had engaged in tactics "designed to frustrate agreement with the Union, except on the terms he adamantly insisted upon . . " Union animus had been clearly established there . Porter's attitude was that a union was an evil with which it was required to deal and which it was required to tolerate only by reason of the statute . Porter intended not to permit the union to have any greater voice in the working conditions of its employees than that which it was "required to per- mit " Porter seized every opportunity to embarrass the union before its employee members All these factors, which had been found against Porter in the prior case, remained unchanged in the new case The second basic reason for the Trial Examiner's Deci- sion against Porter was that Porter's chief negotiator had stated as his reason for refusal to agree to checkoff, "that he did not wish to give aid and comfort to the Union by assisting it in collecting dues ." This remark was made in response to it demand by the union for one of two alternatives to a checkoff provision - that its financial secretary be given access to the plant with leave to con- tact the employees during nonworking hours for the pur- pose of collecting dues or that the union's stewards be permitted to collect dues in the plant during nonworking hours. Porter's chief negotiator' s words were , "we are not going to aid and comfort the International Union at this location I should not help the Union collect their dues, and this is what I am doing when I let them collect it on company property ..." In our case , Respondent GARCO's Personnel Manager Sullivan testified that dur- ing the negotiations , the Union's chief negotiator , Willis, had been told that, since he "was being transferred to Charleston , he would be a permanent resident here and it would appear . that you could collect your own dues through him. The way you did it was a matter of election so far as you were concerned You could do it in the plant, outside the plant as long is it did not interfere with production " ( Emphasis supplied ) This testimony remains unrebutted on the record and reflects an attitude diametrically opposed to that taken by the employer in Porter Not only is it unrebutted but the Union's chief negotiator, Willis, confirmed that the Company did make such an offer. He testified that at the March 15, 1967, meeting, Attorney Smith had told them, "we would have freedom to collect the dues anyway we seemed fit but the company was not going to grant checkoff " Finally, in the Porter case, the Trial Examiner referred to the fact that an argument had been made to the com- pany that its contract with unions at other plants did pro- vide for checkoff but that Porter retorted that it was forced to give checkoff at those other plants, "by reason of the economic strength of the union there involved, and urge[d] that the Union 's remedy in this case was to call a strike rather than prosecute an unfair labor practice charge." In our case there is no suggestion that the Respondent took such a stance. On the contrary, it was the Union in our case which sought to exert its economic strength by calling a strike to secure checkoff While H K. Porter is authority for ruling that a refusal to agree to a dues checkoff clause in a contract to be ex- ecuted between it company and a union may, under particular circumstances , be regarded as a refusal to bar- gain in good faith as required by Section 8(a)(5) of the Act, it is my belief that the facts in that case are so far dif- ferent from the facts in this case that here we may not resort to Porter. We are confronted here with no background of unfair labor practices on the part of the Respondent as was the situation there Although I have dismissed all the other allegations of the complaint, it should be noted that these allegations against this em- ployer with over 600 employees in the unit involved only 4 alleged threats or interferences in violation of Section 8(a)(l ), I discharge and 12-day suspension alleged to be in violation of Section 8(a)(3) and (1), 2 for possibly 3) al- leged unilateral wage increases, the change from 410 DECISIONS OF NATIONAL piecework to hourly rate in the Beamer Operation involv- ing 7 employees, and finally this particular charge involv- ing an alleged "fixed and adamant attitude against grant- ing dues checkoff." Under all the circumstances of this case I am con- vinced that it bears no resemblance to the situation with which the Trial Examiner was confronted in H. h. Porter Company, Inc., 153 NLRB 1370. The facts do not sug- -est to me that the Respondent in this case had any inten- tion whatsoever to undermine the Union or to avoid en- tering into a contract with it, utilizing as a device for that purpose an unwillingness to agree to the checkoff clause See McLane Company, Inc., 166 NLRB 1036, fn. 20. On the other hand, I am firmly convinced that, had there been no impasse on that clause, a contract between the parties long since would have been executed As far as the record of this case is concerned, it would be equally LABOR RELATIONS BOARD consistent to find , were it necessary so to find , that the parties were unable to come to a mutually acceptable agreement because the Union had adopted a "fixed and adamant attitude " that it had to have checkoff in the con- tract. While, unhappily , the national labor policy has not been attained here through the vehicle of a duly executed collective-bargaining a; reement between the parties, the negative result should not be laid at the door of the Com- pany It is my opinion , after my observation of both Wil- lis, on the one hand , and the company officials, on the other, that once the matter of dues checkoff is laid on the table and put aside, the parties quickly will be able to agree upon a collective -bargaining agreement. CONCLUSION AND RECOMMENDED ORDER The complaint in this proceeding should be and hereby is dismissed in all respects.