Palm Beach Woodwork Co., Inc.

242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Palm Beach Woodwork Company, Inc. and Palm Beach County Carpenters' District Council , United Brotherhood of Carpenters and Joiners of Amer- ica, AFL-CIO. Case 12-CA-3686 While the Trial Examiner held that such unilateral action violated Sec- tion 8(a)(5) and (1) of the Act, he inadvertently failed to include such find- ing in his Conclusions of Law. In order to correct that omission, we hereby conclude that Respondent thereby violated Section 8(a)(5) and (1) of the Act. January 19, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On September 20, 1967, Trial Examiner John M. Dyer issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, the General Counsel and Respondent filed exceptions to the Trial Ex- aminer's Decision and supporting briefs. 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 Respondent, Palm Beach Woodwork Company, Inc., West Palm Beach, Florida, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order as herein modified: 1. Add the following paragraph to the end of the Trial Examiner's Recommended Order: "IT IS FURTHER ORDERED that any allegation of the complaint not found as an unfair labor practice be dismissed." ' The General Counsel has excepted to the Trial Examiner's failure to find that Respondent violated Section 8(a)(3) as well as (5) and ( 1) of the Act, by unilaterally terminating Memorial Day as a holiday. Inasmuch as such a finding would not effect the scope of the remedy herein, we deem it unnecessary to pass on this exception. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN M . DYER, Trial Examiner : Palm Beach County Carpenters ' District Council , United Brotherhood of Carpenters and Joiners of America , AFL-CIO, herein called the Union , filed a charge on November 7, 1966,' and the General Counsel thereafter issued a complaint and amended complaint alleging that Respondent, Palm Beach Woodwork Company , Inc., hereinafter called Respondent or the Company , violated Section 8(a)(3) of the Act by its discharge of John L. Ahrens and Elmer Harjula, and by various 8(a)(1) violations , and by a failure to make proposals with regard to wages, vacations, and holidays , that Respondent refused to bargain in good faith with the Union in violation of Section 8(a)(5). I heard this case in Miami , Florida, on April 10 , 11, and 12, 1967. Respondent , denying that it had in any way violated the Act, admitted the Board's jurisdiction and that it had discharged the two alleged 8(a)(3)'s, claiming that the discharges were for good cause. Several motions to dismiss portions of the complaint were denied during the hearing and I stated that the decision in this case would ultimately decide those issues. All parties were accorded full opportunity to participate in the hearing, and to ex- amine and cross-examine witnesses.2 Counsel for the General Counsel argued orally and a brief from Respond- ent has been received and considered. Upon the complete record in this case and on my evaluation of the reliability of the witnesses based both on the evidence received and my observation of their demeanor, I make the following: FINDINGS OF FACT I. RESPONDENT'S BUSINESS AND THE LABOR ORGANIZA- TION Respondent is a Florida corporation with its principal office and place of business located at West Palm Beach, Florida, where it is engaged in the manufacture , sale, and distribution of architectural millwork and related products . During the past 12 months Respondent purchased and received goods, supplies , and materials valued in excess of $50,000 from suppliers who had received such goods, supplies, and materials directly from points outside the State of Florida. Respondent admits and I find that Respondent is an employer engaged in commerce or an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. The Respondent admits and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. I Unless otherwise stated all dates herein occurred in 1966. 2 1 revoked a subpoena duces tecum issued by Respondent and served on an official of the Florida Industrial Commission . This official had replied to Respondent by letter stating that the matters for which the sub- pena was issued were confidential and could only be secured by a court order. Based on the decision in Carpenters Local Union 224 (Peter Kiewit Sons Co.), 132 NLRB 295 at 336, citing Sherry Manufacturing Company, Inc., Case 12-CA-1098 (not reported in the Board volumes), I revoked the subpena. 169 NLRB No. 40 PALM BEACH WOODWORK COMPANY, INC. 243 IL THE UNFAIR LABOR PRACTICES A. Background and Issues Respondent has existed for a number of years as a family-owned corporation. The original president of the corporation, Mr. Pike, died in February 1966. Mrs. Elizabeth Pike, his widow, who, for some 10 years, had looked after the books of the corporation, became the president of the corporation and her son, Charles Pike, who, for some 10 years, had been a vice president in charge of sales, assumed the additional position of general manager. Union organization began among the employees and after a Board hearing and direction of an election cul- minated in a Board-conducted election on April 21, which the Union won. A Board certification issued on April 29 for a production and maintenance unit of Respondent's employees. The Union on May 23, 1966, requested Respondent to meet for negotiations and the first bargaining session was scheduled by the parties for June 1. At that time Respondent had about 16 employees in the unit. Some 5 to 6 weeks prior to the union election, John Ahrens, who had first been employed by the Company in 1944 at 90 cents per hour and had worked his way up to Respondent's top rate of $2.95 an hour, engaged in a con- versation with' Mrs. Elizabeth Pike. Mrs. Pike asked Ahrens what he thought about the Union coming in, how many of the boys in the plant were for it, and whether he thought it had a chance. Ahrens told Mrs. Pike she didn't have anything to worry about, that Mr. Pike had always been against the Union, had always been fair to him, and he didn't think she had to worry. Approximately a week later while in the shop, Mrs. Pike asked Ahrens again how the boys felt about the Union, whether or not it had a chance of coming in. Again Ahrens replied that he did not think she had anything to worry about. A few weeks before the election, Mrs. Pike told Ahrens that it was getting pretty close to the election and asked if Ahrens had done anything about it yet, and that if he hadn't he had better get to it. They were near shop Foreman Laskey's desk at the time. After she left Ahrens asked Supervisor Laskey what could be done about the Union. Laskey said they could get a petition against it. Ahrens said he wouldn't know what to put on it. Laskey said he would take care of it. Ahrens asked if it would do any good and Laskey assured' him that Mrs. Pike would sit down and discuss matters with the men if the Union didn't come in. Approximately an hour later Laskey handed Ahrens a piece of paper containing a written statement and told Ahrens to take a tablet and pen and copy the statement in his handwriting and carry it around to all of the employees in the plant. Ahrens did so, con- tacted the employees, and got signatures from all but three, one of whom was absent. The petition recited that the employees had no desire to join the Union or have an election despite what they may have said in the past. The three who did not sign the petition were Elmer Harjula (the other alleged 8(a)(3) in this case), Tom Harrington, and an employee named Hill, who had been absent. Ahrens returned the petition to Laskey who thereupon went to the office. Mrs. Pike admits that she was shown and read the petition. Sometime later Laskey returned to Ahrens with the petition in an envelope with the Union's address on it Laskey told Ahrens to knock off work and with another employee take the petition to the union hall. Ahrens did as he was told but was unable to deliver the petition that afternoon since the union hall was closed. He reported back to Laskey who asked him to take it by the union hall the next morning. On the following morning he met the other employee, Matthews, in front of the union hall and delivered the petition to a man at the union hall and went on to work. Mrs. Pike testified that she did not ask Ahrens how he and others were going to vote, nor did Ahrens say she did. She stated she had a conversation with Ahrens by the water cooler, after denying Ahrens' version of the con- versation by Laskey's desk. She stated that she asked Ahrens how things were coming and when he asked what she meant, she said that the election was coming up in a few days and they better decide what they wanted and that she would appreciate all the support he could give her. She then changed this latter statement to "all the sup- port she could get." Mrs. Pike's explanation appears to be an attempt by changing a few words to change the sense of what took place. I am constrained to believe Ahrens' version of the incident in view of Mrs. Pike's testimony and particularly as what occurred thereafter flows from such a conversa- tion. Laskey's suggestion and help in the preparation and the subsequent handing of the petition to Mrs. Pike for her perusal and delivery of it by Ahrens, are not figments of the imagination. Mrs. Pike, who was present when Ahrens testified, modified his testimony just enough to change the sense of it while confirming most of the other aspects of the conversation and her reception of the peti- tion from Laskey. This testimony does not establish any violations of the Act as it occurred prior to the 10(b) date in this case. However the testimony does show that management was opposed to the establishment of a union at Respondent and further shows the rapport which existed between management and Ahrens prior to the union election. Following the Union's victory and certification Ahrens decided to abide by the employees' choice and attended a union meeting. Members of the negotiating committee were elected at this meeting and Ahrens was one of the three elected. Respondent's counsel in a letter of May 27 acknowledged a telephone conversation between himself and Union Representative Moye, of May 26, and agreed to meet for negotiations on June 1. The letter also said that Respondent had been advised of the three commit- teemen to be released to attend the meeting and that there would be no problem in that regard. Therefore on either May 26 or 27, Respondent's management was advised that one of the three union committeemen, with whom they would meet on June 1, was John Ahrens who had previously circulated the antiunion petition at the behest of Respondent. Respondent on May 16 hired Robert S. Winter as plant manager. Charles Pike testified that Robert Winter de- cided that the employees should work on Memorial Day, Monday, May 30. Charles Pike approved the decision and ordered his secretary, Mrs. Pooree, to prepare and post an announcement that Monday, May 30, would be a workday. This was done. For a number of years Respondent had maintained a notice naming five nonpaid holidays as New Year's Day, July 4, Labor Day, Thanksgiving, and Christmas. How- ever, it appears from Respondent's Exhibit 3, which is a compilation of the amount of time employees worked on the five named holidays and on Memorial Day, as con- 350-212 0-70-17 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trasted with the total number of employees who were in the production and maintenance unit during the years 1959 to 1966, that Memorial Day was celebrated by Respondent in major part as a holiday whether so-called or not. Thus, in 1959, of 78 employees, 42 worked on Memorial Day, in 1960 none of the 29 employees worked; in 1961, 2 out of 25; 1962, 14 of 22; 1963, none of 21; 1964, 1 of 22; 1965, 4 of 23. In 1966, despite the posting of the notice, only 8 of 16 employees worked. The basic issues in this case are whether the discharges of Ahrens and Harjula were discriminatorily motivated and whether Respondent entered into and conducted bar- gainittg negotiations in good faith, considering both the negotiations and Respondent's statements and actions. B. The Discharges ofAhrens and Harjula and the Memorial Day Change John Ahrens stated that he first saw the Memorial Day notice late in the afternoon of Friday, May 27, as he was going to punch out. Ahrens went to the office and spoke to Charles Pike, asking if it was compulsory to work on Memorial Day and if they were going to pay time and a half. Pike said it was necessary to work and they were not paying overtime. Ahrens, who knew Pike and called him Charles, said that his father Mr. Pike had observed Memorial Day for the last 10 years, and that he had made other plans for Memorial Day and wouldn't be in. Charles Pike said they were not going to observe Memorial Day and the conversation ended. Ahrens did not work on Memorial Day and when he reported for work on Tuesday, May 31, his timecard was not in the rack. The shipping clerk told him they wanted him in the office, and going there he saw Plant Manager Winter . Winter told him that he didn't show enough interest in the Company to report for work and that the Company didn't need his services any longer. Ahrens said this was probably not the last he would hear of this and Winter told Ahrens not to threaten him. Ahrens replied that he was not doing so. Winter gave him his check and Ahrens picked up his tools and left. According to Charles Pike, around 4:15 p.m. on May 27 Ahrens came in the office and, in what Pike described as an arrogant manner, said that he had noticed the bul- letin board about work on Monday and asked if the Com- pany was going to pay double time. Pike answered cer- tainly not and Ahrens said that he wouldn't be there. Pike stated he explained it was necessary to work on Monday and that they needed him. According to Pike, Ahrens bel- ligerently said that he wouldn't be there and walked to the door of the plant stating that they had never worked on Memorial Day. Pike said that this was not true. Ahrens replied this was a holiday and he would not be in. Pike de- nied hearing Ahrens say anything about having other plans on Monday, although Winter verified the fact that Ahrens told Pike that he had made other plans or a com- mitment for Monday. When asked to describe what he meant by the terms ar- rogant, insubordinate , and belligerent, Pike stated that Ahrens talked in a loud voice. Mrs. Pooree and Winter also testified that Ahrens spoke in a loud voice. General Counsel inferred that Ahrens talks in a loud voice because he was use to talking in a noisy mill and con- sequently would talk in a louder-than-normal tone. Respondent seeks to have me infer that Ahrens was an- gered and was talking in a loud and angry tone of voice. Charles Pike's explanation of his terms did not bear out their use. From the words used I cannot conclude that Ahrens was insubordinate as such term is mainly used but would conclude from the testimony of those present, that Ahrens probably was somewhat upset at what he con- sidered a change in company policy on the very eve of the holiday he planned to take and which he had apparently observed for 10 years or more with the acquiescence of Respondent. From the words, I can only conclude that he stated his position and left. Elmer Harjula, an employee for more than 10 years was earning 20 cents under the top rate when he was discharged. He testified that during his employment he was never reprimanded or criticized. He testified that late on the afternoon of Friday, May 27, he went in to see Charles Pike concerning the lengths of pieces on an order on which he was working. He found Pike and Winter either in the back hallway or in one of the drafting rooms away from the front office. After discussing what to do about the order, Pike said he should be able to finish it on Monday. Harjula said he wouldn't be in Monday. When Pike asked why, Harjula said he had never worked on Memorial Day since he had been there. Harjula testified that Pike said all right, and the conversation ended. He admitted that he had worked on one Memorial Day dur- ing his employment but had forgotten that when he spoke to Pike. On Tuesday, May 31, when he returned to work, his timecard was not in the rack and he was given a message that Mr. Winter wanted to see him. On report- ing, Winter told him that he had no regard for the Com- pany the way he had spoken on Friday, that the Company had gone to trouble to get the work and that he was being discharged. Harjula told Winter that he wasn't the only one who did not work on Monday and Winter replied that he was not talking to him right then. Harjula received his pay, collected his tools, and left. As Respondent's Exhibit 3 shows, at least 6 of the other 14 employees did not work on Memorial Day. Charles Pike testified that some of them called in and of- fered excuses for not working on Memorial Day but that others never notified the Company that they would not be there. Not one of these other six employees was discharged, reprimanded, or even asked why he did not show up. Charles Pike testified on cross-examination that the Company expected its orders to be followed and ad- mitted that those who did not come to work on Memorial Day had refused to work and, in the same sense as Ahrens and Harjula, were insubordinate. When pressed as to why no disciplinary action was taken in regard to the six others, Pike returned to the statement that Harjula and Ahrens were insubordinate and refused to work. When pressed as to the distinction between the six and the two, Pike said, it came down to the two telling management they would not be at work and the other six not saying so and not working. When again asked why the six were not reprimanded Pike finally said, "Well you can't go around upsetting everybody." As to the actual decision to discharge Ahrens and Har- jula, Charles Pike testified that after work on Friday, May 27, he went home and talked the events over with his mother. He told Mrs. Elizabeth Pike that Ahrens had come into his office speaking in a loud voice, that there were people around, and this was upsetting and was disrespectful to him. Neither Charles nor Elizabeth Pike nor any of the other witnesses stated that Harjula spoke in a loud voice or otherwise characterized his tone of voice. Charles Pike stated they decided to discharge Ahrens and Harjula for extreme insubordination and re- PALM BEACH WOODWORK COMPANY, INC. fusal to work and so on Tuesday morning he told Winter to pull their timecards and fire them. He testified he over- heard the conversation between Winter and Ahrens and Harjula and that Winter told Ahrens and Harjula that they didn't appreciate their jobs, didn't help the Company when the Company needed them, and it had been neces- sary for them to be there. Mrs. Pike said she knew Ahrens had been with Respondent many years and that Harjula had been there for a number of years. She testified that on Friday, May 27, her son reported to her that Ahrens in a loud voice had refused to work on Monday and that Harjula had said he was not going to work on Memorial Day. She stated that these events embarrassed her son and that she did not think it was nice for a shop employee to speak that way before people in the office or where people such as the clerical help could hear it. There was some conflict among Mrs. Pike, Mrs. Pooree, and Charles Pike as to whether a customer was anywhere in the vicinity, Mrs. Pooree saying there was none, Mrs. Pike testifying that she believed her son had said that there was one. Mrs. Pike testified that Charles told her that Ahrens and Harjula were talking about the notice he had ordered posted on the bulletin board. She stated that she thought about it for a few minutes and then told her son that she would not have it, that they had recently fallen heirs to the business and she would not have two employees being disrespectful of him as the general manager, much less being an owner, and so these people would have to be discharged for insubordination. It appears that Charles Pike may have colored the events somewhat in his discussion with his mother or he may unduly have felt hurt by these statements. However from his testimony there would seem to be no cause for embarrassment since no insubordination in the ordinary sense of that word was shown. But there is no doubt that when the discharges took place, at least six other (un- named in this record) employees had refused to work on that same Monday and that not even a word was spoken to the six about it, much less any disciplinary action being taken in regard to them. It has been shown that Charles Pike stated that these other six were insubordinate in the same manner as Ahrens and Harjula. Management is cer- tainly entitled to have its legitimate orders obeyed and to punish employees for infractions of its orders. But here when what might have been legitimate punishment in other circumstances was being applied, management was absolving six other employees of what was basically the same infraction. This is disparate treatment and the only visible reason for the treatment was that at the time, management knew that Harjula was strongly prounion and that Ahrens from having befriended Respondent by circulating an antiunion petition had apparently switched loyalties and as a member of the Union's negotiating com- mittee was scheduled to appear on the opposite side of the bargaining table a few days later. With the long and valued service both Harjula and Ahrens had given Respondent and the slight nature of the offense as shown by the treatment accorded the other six employees, I must conclude that the union proclivities and activities of Ahrens and Haijula are the only known reasons for the disparate treatment accorded them and I find and con- clude that they were discharged in violation of Section 8(a)(3) and (1) of the Act. I have no doubt that the disrup- tive action of discharging a negotiating committee member on the eve of the first bargaining session may also have influenced the decision to discharge Ahrens. 245 General Counsel alleged that Respondent's unilateral change and termination of May 30 as a holiday was a violation of Section 8(a)(5), (3), and (1) of the Act. The Company's position was that Memorial Day was not a holiday and was a regular workday. However, as shown above, Memorial Day had a special status at Respondent which had been recognized in the past and was recog- nized by present management in that they felt it was necessary to post a notice concerning the decision to work on Monday is not overwhelming. Charles Pike making a change in a day that had a special status as may be seen from the manner it was observed, it was making a change in hours and working conditions without notify- ing the Union which was the certified bargaining representative. Apparently Respondent felt it had a right to make this change without notifying or consulting with the Union. The testimony as to the reasons for scheduling work on Monday is not overwhelming. Charles Pike testified that it was necessary to get some work out in order to complete the billing for the month. He did not state that any particular customer was clamoring for work that was behind. On the other hand there is no testimony that there was not sufficient work there to be done, or that this was a make-work project in order to make employees come in to work on that day or to thereby punish them for bringing in the Union. As to that point I do not find that Respondent's action here constituted a violation of Section 8(a)(3). However, as the status of the day very apparently was special and was being changed by Respondent and Respondent hav- ing claimed it was considered a regular workday contrary to the facts, I find that Respondent's action violated Sec- tion 8(a)(5) and (1) in that Respondent unilaterally changed hours and working conditions without notifying the Union and in utter disregard of the Union's status as the bargaining agent for Respondent's employees. C. The Bargaining Negotiations On June 1, at the first negotiation session between the parties, the Union presented a 9-page, 19-article proposal with a wage appendix attached. The contract was quickly reviewed and then the parties began a discussion of each article and section of the proposal. Following this method the parties apparently went through the first 12 articles up to page 7, reaching agreement on some articles and bypassing others for later discussion. At the second negotiation session, held June 16, Respondent produced counterproposals regarding "Functions of Union" (article 3 of the Union's contract); "Strikes and lockouts" (Union's contract, article 8); "Representation," dealing with how the steward was to be chosen (Union's contract, article 5); "Management Prerogatives" (Union's article 2); and Grievance Procedures (Union's article 6). Consideration of these company proposals took the whole negotiation session with agreement being reached on some sections of some articles. But when the Union was apprised that Respond- ent would not agree to any binding arbitration, the Union stated that its agreement on some of the grievance procedure sections and in regard to the sections on strikes and lockouts was contingent on the Company's granting some form of binding arbitration. Similarly any agreement on the management prerogative article would depend on whether the contract included arbitration. On June 30, a third bargaining session took place and the remainder of the Union's proposed contract was 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discussed item by item with some agreement being reached on some sections and articles. A fourth negotiation session took place on July 28, fol- lowed by the fifth bargaining meeting on September 7, with a Federal mediator present . Some further agree- ments were reached at these two sessions but Respond- ent's position on no economic concessions and no ar- bitration remained fixed . Union Representative Moye during the negotiations at one time asked whether the Company would give a 5 -cent raise and at another point whether it would give a 1-cent raise . The Company's negotiator stated that he did not consider these proposi- tions as serious although not stating why he did not in the face of the Company's fixed position on not granting economic concessions . At the end of these five negotia- tion sessions there was agreement on some rather minor matters between the parties , such as that the Company recognized the duties of a union , that the parties agreed that the employees were free to join the Union or not without discrimination , how the union steward was to be elected, and for what part of his duties he would receive pay (the article dealing with this is entitled union security but has nothing whatsoever to do with dues or checkoff, there being no proposal by the Union for either in this contract). There was also agreement by the parties on plantwide seniority and agreement on a 45 -day period for probationary employees . The Company agreed to post a seniority list and to accord superseniority to the union steward. In regard to a proposal that supervisors would not perform unit work the Company agreed that the su- pervisors would not perform unit work if, by performing such work , they were displacing any employees. The parties also agreed to the rights of returning veterans and that the Respondent should maintain adequate restrooms and drinking facilities , and that there was to be no dif- ferentiation in wages by reason of race , sex, or national origin. The Union had proposed that Respondent pay full pay while an employee was on jury duty . Respondent agreed to pay the difference between jury pay and what the employee would have received on a normal day. The union contract proposed leaves of absence to be granted for union or personal reasons. Respondent agreed to per- mit leaves of absence in its discretion. Following is a listing of the unresolved issues. With Respondent's position that it would not agree to binding arbitration, there was no agreement on grievance procedure , strikes and lockouts, or company preroga- tives. The Company's proposal on grievance procedures was that the company president 's decision would be final as to all grievances . (The Union was weighing this proposition in the face of Respondent's discharges of Ahrens and Harjula which the Company maintained were discharges for cause.) The grievance procedure was locked in with a no-strike or no-lockout clause. The Union had originally proposed a complete no-strike or no-lockout clause in conjunction with a grievance procedure and binding arbitration . The Company's proposal would have permitted strikes after grievance procedures had been concluded. The Company would not agree to the job classifications and wages proposed by the Union. The Union asked for 10 job classifications. Respondent wanted only two job classifications and since it stated it could not agree on classifications , it bypassed discussion of wage rates for these classifications. The Company said it would not grant any pay increase because it felt it was paying enough . Regarding job bidding as set out under the seniority article , Respondent stated it did not want to get into job bidding. The Com- pany also stated it would not grant any paid holidays as it was its policy not to pay for holidays. In regard to the Union's request for paid vacations, the Company stated it was its policy not to grant paid vacations but it did offer to grant a 1-week vacation to employees with at least 1 year's service with this provision to start 1 year after the inception of the contract. The Union also proposed paid sick leave. Respondent said it would not grant any type of paid sick leave . In regard to a proposal in the union con- tract for paid 10-minute breaks, the Company said it would keep its present system of informal breaks which allowed the employees to get a drink or smoke a cigarette because it did not want to set up a formal system of breaks. The Union's contract proposed company pay- ment of hospitalization insurance . The Company's posi- tion was that it would keep the present hospital insurance with no changes whatsoever and that it would not in- crease its payments. In regard to the duration of the con- tract both parties agreed not to negotiate that clause until the balance of the contract was negotiated. Respondent's counsel testified regarding the bargaining sessions , and was asked on cross-examination whether he had engaged in any type of bargaining other than surface bargaining. His reply was that he was charged by his em- ployer with getting the best contract possible, and he felt that this was the best contract possible. In essence Respondent made concessions to the Union of minor matters of very little substance. A number of the things Respondent agreed to are items which are covered by Federal or possibly State laws, such as providing adequate restrooms and agreeing not to discriminate in regard to pay as between race and sex, nor to discriminate against employees because they want to join or not join the Union . Respondent's proposed management-preroga- tives clause, which vested practically all decisions in management and its position that there were to be no economic increases (other than the noted jury-pay con- cession), together with a grievance procedure which pro- vided for Respondent's decision to be binding with no provisions for binding arbitration, would on the surface terms of the contract leave the employees with nothing of any substance to be gained from their collective bargain- ing and with no voice in the decisions affecting them. At the very minimum this could be said to be extremely tough bargaining , but we must view this bargaining not only in the light of what took place at the bargaining table but also what took place prior to and following the five negotiation sessions. Following the final bargaining session in September, employee Sanders, who was the union steward and a member of the union negotiating committee , told Plant Manager Winter that the situation was serious, and that Winter ought to so inform Mrs. Pike. Winter said he would do so. A few days later Mrs. Pike talked to Sanders in the shop. She said that from the statements he had made in the bargaining session that he was no longer her friend. Sanders said that in a speech Mrs. Pike made to the employees a few days earlier, she treated the men like school boys by telling them that they could be replaced. He told her that due to the high cost of living the men needed a raise. On direct examination Sanders testified that Mrs. Pike said if it wasn't for the Union she could give a raise. On cross-examination, when twice asked to repeat the conversation , Sanders did not mention such a statement by Mrs. Pike. Mrs. Pike testified that Sanders said the cost of living was going up and these boys feel PALM BEACH WOODWORK COMPANY, INC. 247 they need a raise, which she testified she took as a request by Sanders for an individual raise. She stated she added that her attorney advised that when they are in negotia- tions they do not give raises. (Such a statement is a distor- tion of the applicable law.) A few days later Sanders again spoke to Plant Manager Winter and asked what was being done about getting the matter settled and getting the Company and Union together Winter asked what San- ders thought it would take to settle the matter. Sanders replied that 15 to 20 cents an hour could settle the question in his estimation. Winter said they couldn't do that without classifications and asked if Sanders would call the men together without the Union. Sanders an- swered that as the men's union steward he couldn't do that without talking to the men about it first. Winter said that if Sanders wouldn't get the men together, then as far as Mrs. Pike was concerned there was no way of settling it, since from a business standpoint the Union would not help her any and, further, that if it wasn't for the Union, raises would probably be given. Winter told Sanders that this conversation wouldn't stand up in court because there were no witnesses to it. Winter acknowledged he had two conversations with Sanders a week to 10 days apart sometime in September or October. During the first conversation, according to Winter, Sanders told him that the labor situation was seri- ous, that he had come from New York and had seen unions break companies, that the Company was spending an awful lot of money for legal fees, and that the Com- pany might be broken if they didn't do something about it. In the second conversation Sanders said he had never been particularly interested in the Union prior to that time but became curious and decided to go to a meeting. At that meeting he was elected steward, and though he didn't particularly like his position, that was it. Sanders continued that the Company and Union should get together and, if they didn't, the Company might be broken. Winter stated he asked Sanders what the men wanted and, when Sanders replied that he couldn't tell him, Winter advised Sanders to find out. Winter denies stating he told Sanders to get the men together without the Union or that without the Union the men could get more money. He did not recall saying anything about an increase in wage rates. During his cross-examination Winter continually fenced with counsel by not answering questions and' seeking to uncover supposed traps. On a number of occasions Winter had to be told to answer the questions propounded. On cross-examination when asked about the conversations with Sanders and whether a wage raise was discussed, Winter answered that he told Sanders to find out what the men wanted, what they were looking for, saying he did not know the Union wanted a wage increase. Winter testified he had never discussed the bargaining sessions with Charles or Mrs. Pike, but ad- mitted that he had attended the first two bargaining ses- sions. Asked if the Union didn't ask for a wage increase at those sessions, he replied that no figures were discussed. After further probing and more evasiveness Winter finally' stated that the purpose of the conversa- tions with Union Steward Sanders was to try to get what- ever issues were between labor and management settled. Sanders was straightforward and consistent in his testimony while Winter, although testifying rather conclu- sively on direct examination, on cross-examination ap- peared to be anything but a'candid witness. I credit San- ders and discredit Winter. Further I cannot in these cir- cumstances credit'Mrs. Pike that she understood Sanders to be asking for a raise for himself. The very words Mrs. Pike used, that "the boys" needed a raise, show she un- derstood he was seeking a raise for all the men. Sanders testified that as the shop steward he asked for a raise for the men, stating it was needed because of the increased cost of living. Winter's follow-up, in asking what it would take to settle the controversy, shows that this was the clear import of the conversation. I do not find that Mrs. Pike told Sanders that the men could have a raise without the Union, although this may be what he understood when she said they could not grant raises while in negotia- tion. I make this finding on the basis that Sanders was un- sure of the statement since he neglected to include it on cross-examination and since the statement she states she used could be misinterpreted. Therefore I recommend dismissal of paragraph 7d of the amended complaint. Further I find that Respondent violated Section 8(a)(1) of the Act by the actions of Robert Winter in seeking to bypass the Union by requesting and urging Union Steward Sanders to call a bargaining meeting of the em- ployees and management without the Union, and holding out to Sanders the prospect of wage raises for the em- ployees with the Union out of the picture. When this is contrasted with Respondent's adamant position regarding wage raises at the bargaining table, the impact of Re- spondent's action is all too clear. Sometime after the charge was filed in this matter, a meeting was set up by the Union for a Labor Board in- vestigator to talk to various Respondent employees. Winter testified that sometime in November, two or three employees asked him about a letter telling them to report to the union hail for a meeting regarding the investigation of the charges. He stated he asked Charles Pike to get legal advice about this letter. He stated that Pike did so and told him that the men were under no obligation to go to the meeting. Winter testified he thereafter went throughout the shop and spoke to 90 percent or approxi- mately 12 of the men, including the original 2 or 3, and told them that they were under no obligation to go to the meeting. Employee Stuart Mayhugh testified that between 3:30 and 4 p.m. on the day of the scheduled meeting Plant Manager Winter asked ifhe knew anything about a meeting that night. He replied yes, that he had gotten a letter saying that an NLRB representative would be at the meeting. Winter told him that he didn't have to go if he didn't want to. Mayhugh said he knew that. He then told Winter that he was mad, that he had been there for 5 years and the Company was bringing in new people who knew nothing about the job and were paying them more than he was getting. Winter said that if they ever got this thing straightened out they would try to equalize the wages. Employee Leon McKiver testified that around 4:15 p.m. of the same day he was asked by Winter whether he had received a letter to go to a meeting. He'replied yes and Winter told him that he didn't have to go if he didn't want to do so, and that it would be best for him not to go. Winter testified he did not tell any employee it would be best for him not to go to the meeting. He admitted telling Mayhugh he would like to see them get the matter straightened out so wage rates could be justified. He at- tempted to justify these incursions into the private mat- ters of employees dealing with the Union by stating he was passing out legal advise without inquiring whether the employees had received letters from the Union. As noted above, I have not credited Winter and do not again here. McKiver and Mayhugh testified clearly and 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD convincingly as to their conversations with Winter and I credit them. I find that Respondent violated Section 8(a)(1) of the Act by Plant Manager Winter questioning employees as to whether they received letters from the Union and whether they intended to go to the scheduled meetings and by telling employee McKiver that it would be best for him not to attend such a meeting. Following Mrs. Pike's speech to the men, and about the same time that Sanders was having his conversations with Mrs. Pike and Plant Manager Winter, Union Representa- tive Moye wrote Respondent Counsel Muller demanding further negotiating and suggesting several dates . On Sep- tember 19, Muller replied stating that the proposals and demands had been discussed "numerous times" and until the Union changed its demands Respondent considered that they were at an impasse and that further negotiations were futile. Muller concluded that if he was incorrect to let him know and the Company would explore the situa- tion further. There were no more meetings between the parties. Respondent's stand in essence is that the Union had to make concessions and change its demands before negotiating sessions would be worth reopening . Respond- ent's position was that it was not prepared to make any concessions or proposals in order to get the bargaining sessions going despite the Union 's request that it make some proposal on wages and related matters. The preelection conduct of Respondent , in resisting the Union and promising to negotiate with the employees without a union, coupled with Respondent 's ignoring of the Union in changing the status of Memorial Day, when added to the actions of Winter in trying to undermine the Union and again holding out the promise of benefits in the absence of a union and Respondent's position that the Union would have to make concessions to get such ses- sions started again , demonstrates effectively that Re- spondent had no interest in and was seeking to avoid coming to terms with the Union . Here as in East Texas Steel Castings Company, Inc., 154 NLRB 1080, a look at Respondent's bargaining proposals and positions only serves to bolster that. conclusion . The cases are quite parallel in that here Respondent adamantly refused to grant any pay increases and did not offer as much (no paid holidays) as did the company there . Similarly Respondent here insisted on an all-encompassing management -rights clause but, less than Respondent in that case, insisted on no binding arbitration, thus reserving to itself all decisions in any area of possible conflict, except that the Union could strike after proceeding through the grievance procedure. The few areas of agreement covered in the main mat- ters such as nondiscrimination in pay by reason of sex or race, no discrimination for joining or not joining the Union, provisions for adequate water and toilet facilities which are in the main provided for by Federal or State laws. As noted previously , Respondent has refused to grant any wage increases or to even consider any contract provisions which would in any way enlarge its costs of operations . The concession about jury pay is miniscule. At the same time that Respondent continued to insist it would not grant any monetary concessions and refused to make any offer in that direction, it held out to the union steward the prospect of pay increases if negotiations were undertaken without the Union . In taking its position on no wage increases in bargaining (contrasted with the sub rosa offer to Union Steward Sanders ) Respondent did not claim an inability to pay but rather stated it felt it should not.pay more. Respondent insisted on there being no binding arbitra- tion provisions with its decisions as final while insisting on a broad management prerogative clause, which in es- sence meant that virtually all questions remained in management's discretion. It would not even discuss job bidding or stated breaktimes taking a flat position that it was unalterably opposed to these items. One example of Respondent's conception of a union's effect on its busi- ness is shown by the extended discussion as to whether the contract should state that it was binding on successors since the owners stated they were thinking of selling the business and they could do better if the business was not encumbered by a union. contract which might be binding on a successor owner. In sum Respondent took a flat intractable position to all items of any moment in its few bargaining sessions, main- taining for itself unlimited discretion in the running of the business and conceding no voice to its employees' bar- gaining representative, while simultaneously seeking to undermine the Union by the discharges and the con- ferences with Sanders. Respondent here was making no effort to reach any agreement with the Union but rather to keep from doing so unless the Union was prepared to accept an essentially meaningless , benefitless contract. In these circumstances I find that there was no genuine im- passe to further negotiations. It would be completely un- realistic to think that Respondent's course of bargaining was designed with any purpose other than rejection of its proposals by the Union. The assessment of Respondent's proposals and positions is made only for the purpose of shedding light on the motives underlying its approach to bargaining in conjunction with its other actions. I find and conclude that Respondent rejected the prin- ciple of collective bargaining and was doing its best to avoid it by its course of bargaining, its refusal to bargain further, its treatment of Memorial Day, its efforts to un- dermine the Union and to impede the investigation of this case, and has failed to bargain in good faith in violation of Section 8(a)(5) and (1) of the Act. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II, above, and therein found to constitute unfair labor prac- tices in violation of Section 8(a)(5), (3), and (1) of the Act, occurring in connection with Respondent's business operations as set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that Respondent engaged in unfair labor practices as set forth above, I recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act as follows: Respondent, since on or about May 23, 1966, has at all times since then refused and still refuses to bargain with the Union in good faith as the representative of its em- ployees in an appropriate unit. Therefore I recommend that Respondent, upon request, bargain collectively with the Union in good faith and in the event that an un- PALM BEACH WOODWORK COMPANY, INC. 249 derstanding is reached, embody such understanding in a signed agreement. Respondent having discharged or terminated John L. Ahrens and Elmer Harjula on May 31, 1966, because of their union activities and not having thereafter offered them reinstatement, I recommend that Respondent offer to each of them immediate and full reinstatement to their former positions or if those positions are or have been abolished through change in Respondent's operations, then to any substantially similar positions, without preju- dice to their seniority or other rights and privileges and that Respondent make John L. Ahrens and Elmer Harlula whole for any loss of pay they may have suffered by reason of Respondent's discrimination against them, by payment to them of a sum equal to that which each would have normally received as wages from May 31, 1966, the date of their discharges, until the date Respondent rein- states them, less any net earnings for the interim. Backpay is to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum to be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. I further recommend that Respondent make available to the Board, on request, payroll and other records in order to facilitate the checking of the amount of backpay due and the rights of John L. Ahrens and Elmer Harjula. Having found that Respondent discriminated against Ahrens and Harjula for exercising their rights under the Act and having found that Respondent has interfered with the rights of its other employees thereby and that it has otherwise invaded its employees' rights under the Act as set forth in section II, above, I am of the opinion that the danger exists that Respondent may commit further unfair labor practices, having by the action set forth above, shown its proclivity for so doing. It is part of the purpose of the Act to prevent the commission of unfair labor practices, and being mindful of the danger that Respondent may again invade the rights of its employees, I recommend that Respondent be placed under a broad enjoinder to cease and desist from in any manner infring- ing on the rights guaranteed its employees by the Act. On the basis of the foregoing findings and the entire record, I make the following: CONCLUSIONS OF LAW 1. Palm Beach Woodwork Company, Inc., is an em- ployer engaged in commerce or in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. All production and maintenance employees, includ- ing laborers and truckdrivers, employed at Respondent's West Palm Beach, Florida, mill, but excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since April 29, 1966, the Union has been, and now is, the exclusive representative of the em- ployees in the said unit for the purposes of collective bar- gaining within the meaning of Section 9(a) of the Act. 5. Respondent by refusing to bargain in good faith with the Union on and after May 23, 1966, as the exclu- sive representative of its employees in the appropriate unit, has engaged in and is engaging in unfair labor prac- tices within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act. 6. By discriminatorily discharging employees John L. Ahrens and Elmer Harjula on May 31, 1966, and not thereafter having reinstated them because of their union activities and desires Respondent engaged in and is en- gaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. 7. Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act by: (a) Unilaterally changing the status of Memorial Day, May 30, from its previous character as a special holiday to a workday. (b) Telling its employees that it could afford to give its employees a raise but would not do so until the Union was out of the picture. (c) Seeking to undermine the Union's status as collec- tive-bargaining agent by requesting an employee to get other employees into a bargaining session without the Union. (d) Interrogating its employees concerning their union activities and whether they intended to meet with an agent of the National Labor Relations Board concerning this case and informing its employees that it would be best for them not to attend such a meeting. RECOMMENDED ORDER On the basis of the foregoing findings of fact and con- clusions of law and upon the entire record in this case considered as a whole, it is recommended that Palm Beach Woodwork Company, Inc., of West Palm Beach, Florida, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith con- cerning rates of pay, hours of employment, and other terms and conditions of employment with Palm Beach County Carpenters' District Council, United Brother- hood of Carpenters and Joiners of America, AFL-CIO, as the exclusive representative of the employees in the appropriate unit described in paragraph III of the section entitled "Conclusions of Law" above. (b) Discouraging membership in and activities on be- half of Palm Beach County Carpenters' District Council, United Brotherhood of Carpenters and Joiners of Amer- ica, AFL-CIO, or any other labor organization, by discharging employees or discriminating against them in any other manner. (c) Telling its employees that it could afford to give its employees a raise but would not do so until the Union was out of the picture. (d) Changing the status of Memorial Day to a workday without bargaining about the matter with the Union. (e) Seeking to undermine the status of the Union as the collective-bargaining agent by requesting an em- ployee to get other employees to bargain with Respond- ent without the Union allegedly because Respondent was not interested in settling with the Union since the Union had nothing to offer Respondent. (f) Interrogating employees concerning their union ac- tivities and whether they intended to meet with a Board agent and informing employees it was best for them not to do so. 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist Palm Beach County Carpenters' District Council, United Brotherhood of Carpenters and Joiners of Amer- ica, AFL-CIO, to bargain collectively through represent- atives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with the above-named Union as the exclusive representa- tive of all employees in the appropriate unit, and embody in a signed agreement any understanding reached. (b) Offer to John L. Ahrens and Elmer Harjula rein- statement in accordance with the recommendations set forth in the section of this Decision entitled "The Remedy." (c) Make whole John L. Ahrens and Elmer Harjula for any loss of pay they may have suffered by reason of Respondent's discrimination against them in accordance with the recommendations set forth in the section of this Decision entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and hll records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (e) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (f) Post at its West Palm Beach, Florida, mill, copies of the attached notice marked "Appendix."3 Copies of such notices, on forms provided by the Regional Director for Region 12, after being signed by a responsible agent of Respondent, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 12, in writing, within 20 days from receipt of this Decision, what steps Respondent has taken to comply herewith.4 aminer of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: Following a trial in which the Company, the Union, and the General Counsel of the National Labor Relations Board participated and offered their evidence, it has been found. that we, violated the law and we have been ordered to post this notice and to abide by what we say in this notice. WE WILL bargain collectively in good faith, upon request, with Palm Beach County Carpenters' Dis- trict Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the exclusive representative of all the employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, including the status of Memorial Day, and if an understanding is reached we will sign a contract containing such understand- ing. The bargaining unit is: All production and maintenance employees, in- cluding laborers and truckdrivers, employed at Respondent's West Palm Beach, Florida, mill, but excluding all office clerical employees, professional employees, guards, and super- visors, as defined in the Act. WE WILL offer John L. Ahrens and Elmer Harjula their former jobs with all of their rights and pay them any backpay due. WE WILL NOT tell employees that we would give them a raise after the Union was out of the picture. WE WILL NOT attempt to undermine the Union by asking employees to deal with us separately without the Union. WE WILL NOT ask our employees about their union activities, whether they intend to meet with any representatives of the National Labor Relations Board, or try to discourage them from doing so. WE WILL NOT fire or lay off any of our employees to try to discourage you from helping or joining the Palm Beach County Carpenters' District Council, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. All our employees are free to become or remain union members. PALM BEACH WOODWORK COMPANY, INC. (Employer) Dated By 3 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice . In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 4 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- (Representative) (Title) Note: We will notify John L. Ahrens and Elmer Har- jula if presently serving in the Armed Forces of the United States of their right to full reinstatement upon ap- plication in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board' s Regional Office, Room 706, Federal Office Building, 500 Zack Street, Tampa, Florida 33602, Telephone 228-7711.