Jeffrey Stone Co., Inc.

JEFFREY STONE CO. 11 Jeffrey Stone Co., Inc. and International Union of Operating Engineers, Local 382C, AFL-CIO. Case 26-CA-2851 September 27, 1968 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On June 14, 1968, Trial Examiner John F. Funke issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision The Trial Examiner further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that those allegations be dismissed. Thereafter, the Respondent and the General Counsel filed exceptions and a cross-exception, respectively, to the Trial Examiner's Decision. The General Coun- sel filed a statement in support of his cross-exception. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the Respondent, Jeffrey Stone Co., Inc., North Little Rock, Arkansas, its officers, ar' nts, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN F FuNKE, Trial Examiner Upon a charge filed August 14, 1967, and an amended charge filed October 30, 1967, by the International Union of Operating Engineers, Local 382C, AFL-CIO, herein the Union, against Jeffrey Stone Co , Inc., herein the Respondent, the General Counsel issued a Complaint and Notice of Hearing dated February 19, 1968, alleging Respondent violated Section 8(a)(1) and (5) of the Act The answer of the Respondent denied the commission of any unfair labor practices This proceeding, with all parties represented, was heard before me at Little Rock, Arkansas, on April 10, 1968, and at the conclusion of the hearing the parties were given leave to file briefs. Briefs were received from the General Counsel and the Respondent on May 22, 1968. Upon the entire record in this case and from my observa- tion of the witnesses while testifying, I make the following- FINDINGS AND CONCLUSIONS I. THE BUSINESS OF RESPONDENT Respondent is an Arkansas corporation having its office and principal place of business at North Little Rock, Arkansas, where it is engaged in the sale and distribution of crushed stone. During a representative year Respondent purchases goods and materials valued in excess of $50,000 directly from points and places outside the State of Arkansas Respondent is engaged in commerce within the meaning of the Act. II LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Background On or about September 20, 1966, the Union was certified, following a National Labor Relations Board election, as the exclusive collective-bargaining agent of Respondent's employ- ees in a unit described as follows. All employees of Respondent's North Little Rock plant, including production and m. intenance employees, exclud- ing office clerical employees, watchmen, guards and super- visors as defined within the meaning of the Act. On or about August 14, 1967, the Union filed a charge, supra, alleging Respondent failed to bargain in good faith with the Union, thereby violating Section 8(a)(5) and (1) of the Act.' On or about October 31, 1967, the Respondent and the Union executed and entered into a Settlement Agreement which was approved by the Regional Director for the Twenty-sixth Region on or about October 31, 1967, providing inter alga, that Respondent would comply with all the terms and provisions of the "NOTICE TO ALL EMPLOYEES," attached to and made a part of said Settlement Agreement which Notice provided with regard to the Section 8(axl) and (5) portions as follows WE WILL NOT unilaterally change wages, rates of pay, or any other term or condition of employment of any employee in the bargaining unit described below without first giving notice to and discussing the matter with International Union of Operating Engineers, Local 382C, AFL-CIO. 1 The employees had struck the plant on April 17 , 1967, in support of their demands 173 NLRB No. 3 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT refuse to bargain collectively with Interna- tional Union of Operating Engineers, Local 382C, AFL- CIO, as the exclusive representative of all employees in the bargaining unit described below WE WILL, upon request, bargain with International Union of Operating Engineers, Local 382C, AFL-CIO, as the exclusive representative of all employees in the appropriate bargaining unit with respect to wages, rates of pay, hours of employment and other terms and conditions of employ- ment, and embody in a signed agreement any understanding reached The bargaining unit is. All employees of the North Little Rock plant, including production and maintenance employees, excluding office clerical employees, watchmen, guards, and supervisors as defined within the meaning of the Act WE WILL NOT,in any manner interfere with, restrain or coerce our employees in the exercise of their rights to form labor organizations, to join or assist International Union of Operating Engineers, Local 382C, AFL-CIO, or any other labor organization, to bargain collectively through represen- tatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection and to refrain from any or all such activities On or about October 30, 1967, the Union filed an amended charge alleging Respondent had failed to bargain in good faith with the Union since February 14, 1967, in violation of Section 8(a)(5) and (1) and had failed to reinstate six strikers in violation of Section 8(a)(3) and (1) of the Act. Thereafter the Regional Director, on February 19, 1968, vacated and set aside the Settlement Agreement set forth above and issued complaint alleging Respondent violated Section 8(a)(5) and (1) of the Act2 by (1) Refusing, since November 6, 1967, to bargain in good faith with the Union (2) Refusing, since November 6, 1967, to bargain in good faith with the Union concerning a check-off clause (3) Refusing to bargain in good faith with the Union and granting a unilateral increase to its employees on April 21, 1967 (These allegations refer to periods prior to the Settle- ment Agreement.) Before considering the presettlement conduct of the Re- spondent it is necessary to establish a postsettlement violation. Consideration therefore, would ordinarily first be given to evidence sustaining (1) and (2) above and returning to the presettlement conduct only if an independent violation of the Settlement Agreement had been found. In Northern California District Council of Hodcarriers and Common Laborers of America (Joseph's Landscaping Service), 154 NLRB 1384, the Board overruled Larrance Tank Corpor- ation, 94 NLRB 352, and held that presettlement conduct establishing the motive or object of a Respondent could be received in evidence to show the motive or object of its postsettlement activities Larrance was overruled in a footnote to the decision so there is no explication nor rationale for the reversal. Nor is any guideline given as to the nature and quantity of the proof in the postsettlement conduct which would require resort to the presettlement conduct. In Clover- field Cold Storage Co., 160 NLRB 1484, and Kay Electronics, 167 NLRB No. 161, the Board affirmed the Hodcarriers rule in footnotes, so the theory of the Board has not been expressed in other than ipsi dixit rationale In all three of these cases independent violations were found in the postsettlement conduct of the respondents so the extent to which an Examiner may rely on presettlement conduct and the situa- tions in which examination of such conduct is permissible are left in doubt In view of these decisions, however, I think that, particular- ly in refusal to bargain cases, a more orderly presentation of the facts will result from reciting them in chronological order B. PresettlementNegotiations Following the certification of the Union on September 20, 1966, its president, V. H. Williams, wrote Respondent request- ing bargaining meetings (General Counsel's Exhibit 2 ) Williams, together with W C Webb and H. D. Mayfield, union representatives, met with B S. Clark, Respondent's attorney, on October 21 (Clark continued as Respondent's chief negotiator throughout the proceedings ) Williams testified3 that at this meeting the Union submitted its usual "Articles of Agreement" to Clark who objected to Articles I, II and III and asked for time to study the agreement. (General Counsel's Exhibit 3 ) Following this meeting the Union, through Williams, made efforts by letters and telegram to schedule the next meeting 4 When these efforts proved fruitless Williams contacted both the Federal Mediation and the Arkansas State Labor Depart- ment and a meeting was finally held with Clark and Jeffrey, president of Jeffrey Stone, on December 20 No agreement was reached at this meeting since Clark stated the Union's proposed agreement proposed was "too radical" for accep- tance No counterproposal was submitted by Respondent. Specifically Respondent rejected the seniority, grievance, wage, vacation and no-strike provisions. The next meeting was held on January 6, 1967. Clark again represented the Respondent but Jeffrey, although his presence was requested by the Union, was not present The Federal Mediator was. There was disagreement upon the same issues, no counterproposal was offered and no progress was made At the next meeting the Union submitted a revised proposal calling for 10 cents across-the-board increase with a 15-cent adjustment for skilled employees and a 5-cent adjustment for semiskilled It substituted a $10 per month hospitalization plan in lieu of vacation and reduced its request for paid holidays from seven to two. Clark's response was that he would have to take this proposal, in view of the money involved, back to Jeffrey The Union again requested that Jeffrey be present at future meetings At the next meeting on February 1 Clark told the Union he had been unable to contact Jeffrey and again there was no counterproposal and no progress 2 The Regional Director did not set aside the Agreement insofar as it related to the 8 (a)(3) violation, nor does the complaint allege any violation of Section 8(a)(3) 3 There is little substantial contradiction , except as to variance in recollection , in the testimony and credibility is not an issue in the case 4 These efforts were made by letter of November 3, letter, November 16, letter , November 22 (unanswered ), letter November 28 (unanswered ), letter November 29 (unanswered), telegram December 1 (unanswered ), letter December 9 (unanswered) (General Counsel's Exhibits 4-10) Clark explained this delay by stating that Jeffrey Sand, a companion company, was also negotiating with the Union and he thought the results of these negotiations would affect the Respondent's negotiations JEFFREY STONE CO. At the February 16 meeting Clark offered a 10-cent across-the-board increase, a 1-year contract and adoption of the terms of the Jeffrey Sand contract This was rejected by the Union. This was the Respondent's first counterproposal According to Clark another meeting took place on March 24 and the position of the parties remained unchanged. On April 5 still another meeting was held at which Clark again offered 10 cents and the Jeffrey Sand terms. According to Williams, Clark stated he had not been authorized to agree to the Union's proposal Subsequent to this meeting the Union took a strike vote and the employees went on strike April 17. On April 21 the Respondent advised its employees that it was putting into effect the 10-cent per hour increase 5 The Union, on April 24 protested this increase and the Respondent's individual bar- gaining with its employees.6 On May 11 the mediator from Federal Mediation and a representative of the Arkansas State Department of Labor met with Clark and were told by him, according to the testimony of Williams, that the Respondent's position had not changed On June 15 Williams met with Clark and told him the strike could be settled on the basis of a 10-cent increase, one paid holiday and reinstatement of the strikers. Clark advised the Union that he would take this proposal back to Jeffrey No response was received from Clark 7 On July 1, Homer Pierce, who had attended several meetings between the parties as mediator for the Arkansas State Labor Department, became affiliated with the Union and acted as its representative thereafter in negotiations with Respondent g Pierce took sections of the original proposal submitted by the Union tentatively agreed upon and combined them in a new proposal which was submitted to Clark on July 13. According to Pierce the proposal eliminated provisions for dues checkoff, proposed starting rates, wage differential for second shift employees, daily overtime, job advancement with seniority, bidding on jobs and work being done by foremen Pierce testified that Clark told him he would discuss it with Jeffrey and would be in touch with Pierce during the week of July 17 Clark's testimony is that he told Pierce that there was no change in the Respondent's position. Despite efforts made to get a response from Clark on July 19, July 25, 26, and August 1 no definite answer was received from Clark On July 21 Clark told Pierce he thought the proposal looked satisfactory On August 4 Pierce wrote Jeffrey (General Counsel's Exhibit 17) requesting a meeting from August 9 but received no response. On August 14 the original charge was filed and on September 21 the General Counsel issued complaint Through Federal Mediation another meeting was arranged for September 26 at which Clark stated the Respondent was willing to sign Pierce's contract.9 A meeting was scheduled for September 29 for executing the agreement but Clark did not appear There was no further communication until October 31 5 General Counsel's Exhibit 13 6 General Counsel's Exhibit 14 7 Clark testified that either at this meeting or the following one the Union first requested that Respondent pay for foul weather gear for its employees and that this was the reason he wished to consult Jeffrey The record is not clear as to when this issue was first raised. g The General Counsel attempted to examine Pierce as to negotia- tions prior to July 1 This evidence was excluded by the Trial Examiner on the ground that it was against public policy for a former state mediator to testify to knowledge acquired while acting in an official capacity 13 when the parties met and agreed to continue to bargain and it was at this time that the Settlement Agreement was signed. C Postsettlement Negotiations The first meeting following the Settlement Agreement was held on November 6 At this meeting Respondent presented its first written counterproposal (General Counsel's Exhibit 18.) This document, in the form of a one-page letter, simply agreed to incorporate the 10-cent wage increase already in effect in a contract for a period not to exceed 1 year All other terms and conditions would follow and adopt the terms of the Jeffrey Sand contract The Union proposed that Respondent grant a checkoff in lieu of vacations, a proposal rejected on the ground that Respondent was not prepared to perform clerical services for the Union. With respect to protective clothing Clark stated he did not have authority to pass on the request whereupon the Union asked that he have Jeffrey present at the next meeting.' 0 Jeffrey was present at the next meeting, November 15, when the Union presented a new proposal (General Counsel's Exhibit 20.) It contained three proposals, a provision for a checkoff, for foul weather gear and safety equipment (fur- nished by Respondent) and a provision for rates of pay with leave to the Respondent to pay above the rates set forth i 1 At this meeting, according to Pierce, and I do not find him contradicted, Jeffrey insisted upon the Union telling him how he could make more money. This was apparently the sole contribution Jeffrey made to the meeting and foreclosed discussion of the Union's proposals. Clark stated the Respon- dent would sign a contract for 1 year or less which provided for no pay increases , no vacations, no holidays and no checkoff (Respondent never agreed to any wage increase other than the 10 cents granted unilaterally on April 21, 1967 ) Meetings were held on November 22 and 29 at which Clark stated he would recommend a 3-year contract Jeffrey did not attend these meetings At the meeting of November 29 the Union submitted a new proposal which contained the pro- posals of July 13 but which eliminated vacations , requested foul weather gear and safety equipment at one-half cost to the Respondent and granting Respondent the right to grant merit increases Meetings were held again on December 7 and 14 (this last by telephone) and the November 29 proposals were again discussed without reaching agreement Clark advised Pierce that Jeffrey would not accept a 3-year contract. On January 3, 1968, Pierce wrote Clark submitting another proposal (General Counsel's Exhibit 22) requesting one-half the cost of foul weather gear and safety equipment be born by Respondent and setting forth a schedule of job classifications and wage rates . Clark pointed out that the rates proposed were higher than those of November 29 and said they were unacceptable Clark again countered with a contract for the 9 Clark , in his testimony , makes no mention of this meeting and neither does Respondent 's brief. I must accept Pierce's testimony 10 The Union had first requested protective clothing in June and was then told Clark would have to check this with Jeffrey Apparently no checking on this issue had ever taken place i 1 Respondent had from almost the beginning of negotiations insisted on the right to grant merit increases. It h6d , in fact, at one time insisted that the only pay increases it would agree to would be merit increases 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD present rates and the Jeffrey Sand contract terms At a meeting held on February 5 no progress was made Two meetings scheduled for February and March 11 were cancelled by Respondent A meeting was fixed for March 18 at which time the parties were to have ascertained exactly what had been agreed to at Jeffrey Sand. Clark testified that after reviewing the Jeffrey Sand file with his law partner, Sutton, he found that it would be difficult to determine what agreements had been reached Pierce, according to Clark, agreed with this conclusion and it was decided to meet on April 8 and go over the Sand contract together In a sense, as Respondent's brief states, the parties would be starting from scratch On April 8, according to Pierce, he had a telephone conversation with Clark in which Clark stated the Respondent was withdrawing recognition from the Union and would proceed with the hearing fixed for April 10. At the hearing the General Counsel moved to amend his complaint to allege that on and after April 8 Respondent ceased to recognize the Union Upon the assurance of counsel for the Respondent that the Respondent was not withdrawing recognition and would continue to recognize and bargain with the Union the Trial Examiner denied the General Counsel's motion to amend During the course of the hearing W. D. Jeffrey, manager of Jeffrey Stone, was called as a witness. Asked by the General Counsel if he would be agreeable to Clark's signing a contract which contained a checkoff clause, Jeffrey, after testifying that he did not like it, said he would' 2 There matters stood at the end of the hearing. D Conclusions 1 Bad-faith bargaining At the time the Settlement Agreement was signed Respon- dent still had the Union's July 13 proposals before it (There were the proposals on which Pierce thought agreement had been reached on September 26) Officially the Respondent's position at the time of settlement was that it had rejected the Union's wage demands (except for the 10-cent increase granted unilaterally on April 24) seniority, paid holidays, grievance procedure, checkoff, no-strike provisions and request for foul weather gear It would agree only to a 1-year contract, with all terms conforming to the Jeffrey Sand contract Following the settlement Respondent offered a 10-cent increase, by which it meant the April 24 increase, a 1-year contract and the terms of the Jeffrey Sand contract. Since at this time there was no final Jeffrey Sand contract this offer appears meaningless and was no more than Respondent had offered prior to the settlement The last meeting between the parties prior to the hearing was scheduled for April 8 It was canceled by Respondent when Clark told Pierce Respondent was withdrawing recogni- tion No concessions had been made by Respondent during the eight postsettlement meetings held. 12 In its brief Respondent stated that , in view of this answer, it was conceding on this issue The only meaning I get from this is that Respondent is willing to sign a checkoff clause 13 See Local 761, international Union of Electrical, Radio and Machine Workers, AFL-CIO v N.L R B, 366 U.S 673, where the It would appear that Respondent evinced, during the entire postsettlement period, a determination to reject any agreement except on its own terms In view of the fact, however, that the motives of a party and its good faith in bargaining negotiations are hardly susceptible to conclusive determination Respon- dent's presettlement conduct will, under the Hodcarriers rule, be examined At the first meeting between the parties on October 21 Clark asked for time to consider the Union's usual contract No further meeting could be arranged, and then only through appeal both to Federal Mediation and Arkansas Labor Depart- ment, until December 20 The Union's proposal was rejected and was continuously rejected without offer of a counteipro- posal until February 16 when Clark offered a 10-cent increase, a 1-year contract and the terms of the Jeffrey Sand contract Following the strike the Union offered to settle for a 10-cent increase, one paid holiday and reinstatement of the strikers, a proposal Clark had to take back to Jeffrey On July 13 the Union withdrew any demand for checkoff, starting wages, wage differential, overtime, seniority, bidding on jobs and restriction of work done by foremen Again there was a lapse in meeting until, again through Federal Mediation and Conciliation, a meeting was held on September 26 This was the meeting (not testified to by Clark) at which Clark supposedly agreed to the terms of the proposal but failed to appear on September 29 to execute the agreement. Summarizing, it appears that all Respondent ever offered the Union was a 10-cent increase, a 1-year contract and the terms on a contract with Jeffrey Sand, a contract which at the time of the hearing had yet to be agreed upon It is true that Section 8(d) does not require agreement to a proposal or the making of a concession Literally read, this would mean that an employer could make a first offer which granted no benefits and thereafter make no concessions The statute is not, however, to be read literally 13 Here Respon- dent's original offer, not made until 5 months after certifica- tion, offered only a 10-cent increase, a 1-year contract and the terms of Jeffrey Sand It never expanded upon this offer during the ensuing 15 months of bargaining. It was not until the hearing that Jeffrey indicated he would accept a checkoff and this, in view of the surprise expressed by his attorney and negotiator, may have been a slip of tongue or mind. During the bargaining period, at one time or another, the Union surren- dered its claim to starting wage rates, checkoff, seniority, bidding on jobs and work done by foremen, vacations and holiday pay Without resting my conclusion on the Respondent's failure to make any concession alone, I cannot find that Respondent met its bargaining obligation by its conduct in negotiations as herein described Where the Respondent's original counterpro- posal offered such scant and meagre concessions as it did here and where, after 18 months of bargaining, it offered no more I must find that its sole purpose was continued delay and utter frustration of its statutory duty No case involving surface bargaining is easy to decide but I think the facts here bring it within the ambit of N.L.R.B. v American National Insurance Co., 343 U.S 395, 402, where the Court stated Court, referring to Section 8(b) (4) (A) stated, at 672 This provision could not be literally construed , otherwise it would bar most strikes historically considered to be lawful so-called primary activity. JEFFREY STONE CO. Enforcement of the obligation to bargain collectively is crucial to the statutory scheme And, has long been recognized, performance of the duty to bargain requires more than a more willingness to enter upon a sterile discussion of union-management differences. See also Mature Transport Co. v N.L.R B, 198 F 2d 735, 739 (C A. 5), NL.R B. v Herman Sausage Co, Inc., 275 F 2d 229, 231, 232 (C A. 5),NL.R.B. v Texas Coca-Cola Bottling Co., 365 F.2d 321 (C.A 5). There are other factors which support this conclusion Thus it appears that Clark, although an experienced labor attorney, had no real authority to agree to any terms other than those proposed by the Respondent and that he in fact was used by Respondent as a buffer between Respondent and the Union. At each new offer made by the Union Clark advised its representatives that he would have to consult with Jeffrey and when Clark made what was at least a tentative acceptance of Pierce's July 13 proposal it never reached agreement. On another occasion Clark said he would recommend a 3-year contract but it was rejected by Jeffrey There is also the fact, supporting the "buffer" theory, that despite repeated requests by the Union Jeffrey attended only two bargaining sessions and did not meaningfully participate in either. I find this lack of authority on the part of Respondent's representative clear indicia of its bad faith throughout negotiations (MF.A Milling Co., 170 NLRB No. 111 ) If further evidence were needed there is the hiatus in meetings between October 21 of 1966 and December 20, 1966, when repeated requests for meetings met with no response from Respondent It is true that this period is excluded, as to the finding of a violation, by Section 10(b) of the Act. Reference is made here only for background purposes. On July 13, 1967, Clark informed Pierce that his proposals of that would be discussed with Jeffrey and that he would meet with Pierce during the week of July 17 No meeting was held, despite requests from the Union and no response was received from Respondent until September 26 In each of these instances of delay the meetings were ultimately held only after intervention by Federal Mediation and Conciliation In addi- tion Clark "forgot" to attend the meeting scheduled for September 29 and Respondent cancelled meetings scheduled for February 21 and March 3 and 11, 1968 This is not the record of one anxious to conclude bargaining negotiations by reaching agreement 14 By the conduct above set forth I find Respondent violated Section 8(a)(5) and (1) of the Act 2 The unilateral wage increase of April 21,1967 The Respondent would justify this increase of 11' vents per hour on the ground that an impasse had been reached in bargaining negotiations. I do not agree At this time only seven bargaining sessions had been held It was ,iot until February 16 that the Respondent made its first offer and only one meeting was held thereafter until the strike began on April 17 The Union gave no indication that it was terminating negotiations and in fact tried on May 11 to resume negotiations through the 14 It might further be noted that the Respondent did not submit a counterproposal until February 16, almost 4 months after it had received the Union's proposal I find this, too, indicia of bad faith. See Insulating Fabricators, Inc, 144 NLRB 1325 15 Federal Mediation Service and the Arkansas State Department of Labor These agencies were advised by Clark that Respon- dent's position had not changed. A respondent may not undertake unilateral actions before negotiations are discontin- ued or before the existence of any possible impasse (N.L R.B. v. Katz, 369 U.S. 736, 741, 742 ) Certainly no final impasse on the subject of wages had been reached and the Respondent was still obligated to bargain on this issue (Safway Steel Scaffolds Company of Georgia, 153 NLRB 417, 422.) I therefore find that Respondent, by its grant of a unilateral wage increase on April 21, 1967, violated Section 8(a)(5) and (1) of the Act 3 The failure to bargain respecting a checkoff of dues The complaint alleges that Respondent refused, on and after November 6, 1967, to bargain with respect to a checkoff of union dues While the Respondent was opposed to a checkoff Jeffrey stated at the hearing that Respondent was willing to sign an agreement containing such a clause. Even in the absence of such a concession I would not find Respondent guilty of any unfair labor practice in taking an adamant stand on this issue Its given reason was that it was unwilling to perform clerical services for the Union, a nondiscriminatory r;ason.1 5 The right of an employer to take an adamant stand on a particular issue was confirmed by the U.S Supreme Court in American National Insurance Co. v N.L.R B., 343 U S 396, where the Court stated, at 404 Thus it is now apparent from the statute itself that the Act does not encourage a party to engage in fruitless marathon discussions at the expense of frank statement and support of its position And it is equally clear that the Board may not, either directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective bargaining agreements It shall be recommended that the complaint, insofar as it alleges a failure to bargain on a checkoff provision, shall be dismissed 16 IV THE REMEDY Having found the Respondent engaged in and is engaging in certain unfair labor practices it will be recommended that it cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act Upon the foregoing findings and conclusions and upon the entire record in this case, I make the following CONCLUSIONS OF LAW I By refusing on and after February 14, 1967, to bargain in good faith with the Union concerning wages, rates of pay, hours and other terms and conditions of employment and by granting a unilateral wage increase in wages to its employees on April 21, 1967, Respondent violated Section 8(a)(5) and (1) of the Act. 15 Cf. Roanoke Iron & Bridge Workers, Inc, 160 NLRB 949, M.FA Milling 170 NLRB No 111 16 See also McCulloch Corporation , 132 NLRB 201 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2 The unit appropriate for the purposes of collective bargaining is. All employees of the North Little Rock plant, including production and maintenance employees, excluding office clerical employees, watchmen, guards and supervisors as defined within the meaning of the Act. 3 The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act 17 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order " shall be substituted for the words "the Recommended Order of a Trial Examiner " in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 18 In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read "Notify the Regional Director for Region 26 , in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith " RECOMMENDED ORDER It is hereby recommended that Respondent Jeffrey Stone Co , Inc , its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Refusing to bargain collectively and in good faith with International Union of Operating Engineers Local 382C, AFL-CIO, as the exclusive bargaining representative of the employees in the unit found appropriate herein (b) Granting unilateral wage increases during collective- bargaining negotiations with the Union (c) In any like or related manner interfering with, restrain- ing or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Upon request, bargain collectively and in good faith with the above-named labor organization as the exclusive bargaining representative of its employees in the unit found appropriate herein concerning wages, rates of pay, hours and other terms and conditions of employment, and, if agreement is reached, embody such understanding in a written agreement. (b) Post at its place of business at North Little Rock, Arkansas, copies of the notice attached hereto and marked "Appendix "i' Copies of said notice, on forms to be provided by the Regional Director for Region 26, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material (c) Notify the Regional Director for Region 26, within 20 days from the receipt of this Decision, what steps have been taken to comply therewith.' B 11 IS FURTHER RECOMMENDED that all allegations of the complaint not specifically found to have been in violation of the Act shall be dismissed - APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act we hereby notify our employees that WE WILL, upon request, bargain collectively and in good faith with International Union of Operating Engineers, Local 382C, AFL-CIO, as the bargaining representative of our employees in the following unit with respect to wages, rates of pay, hours and other terms and conditions of employment and, if agreement is reached, sign a written contract covering such agreement The employees in the appropriate unit are All employees of the North Little Rock plant, including production and maintenance employees, excluding office clerical employees, watchmen, guards and supervisors as defined within the meaning of the Act WE WILL NOT make any changes in wages, rates of pay, hours or any other terms and conditions of work without agreement with the above-named Union unless negotiations with said Union have been broken off JEFFREY STONE CO, INC. (Employer) Dated By (Representative) (Title) This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material If employees have any question concerning this Notice or compliance with its provisions, they may communicate direct- ly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103 (Tel No 534-3161).