F. A. Reynolds Co., Inc.,

418 DECISION OF NATIONAL LABOR RELATIONS BOARD F. A. Reynolds Co., Inc ., and International Union of Electrical , Radio and Machine Workers, AFL- CIO. Cases 16-CA-3143 and 16-CA-3241 shall dismiss the above-mentioned 8(a)(1) allegations of the complaint October 29, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On June 25, 1968, Trial Examiner George Turitz issued his Decision in the above-entitled proceeding, finding that 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 Respondent had not engaged in certain other unfair labor practices alleged in the complaint Thereafter, Respondent filed exceptions to the Deci- sion and a supporting brief 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-mem- ber panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed The rulings are hereby affirmed The Board has considered the Trial Examiner's Decision, the exceptions' and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner except as herein modified. - The Trial Examiner found, and we agree, that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union. However, we do not adopt the Trial Examiner's finding that Respondent violated Section 8(a)(1) in other respects The isolated nature of Supervisor Lambert's interro- gation of employee Rudy Vasquez concerning union membership occurring within the framework of an established bargaining relationship does not warrant an 8(a)(1) finding. With regard to the Trial Exam- iner's finding that the warning notice received by Leal was in reprisal for his filing a grievance, there is no record evidence showing that Respondent discouraged the filing of grievances by employees or that it ever refused to process a grievance In fact, the record discloses that numerous grievances were filed under the grievance procedure provided for in the contract. Further, Respondent had orally stated to Leal the previous week in the criticism now reduced to writing. Under these circumstances, we cannot con- clude that the notice was in reprisal for his grievance activity, and find that Respondent did not thereby violate Section 8(a)(1) of the Act. Accordingly, we 173 NLRB No. 59 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, as modified herein, and hereby orders that Respondent, F. A. Reynolds Co., Inc., Abilene, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified 1. Delete paragraphs 1(c), 1(d), and 2(b) of the Trial Examiner's Recommended Order. 2. Delete the second, third, and fourth indented paragraphs of the Notice attached to the Trial Examiner's Decision. IT IS HEREBY ]FURTHER ORDERED that the com- plaint be, and it hereby is, dismissed, insofar as it alleges violations not found herein. I Respondent excepts to the granting by the Trial Examiner of the General Counsel's motion to amend the complaint so as to allege that commencing on or about November 17, 1967, Respondent violated Section 8(a)(5) by refusing to meet with the Union The record discloses that the motion to amend was made after General Counsel completed its case in chief However, so as not to prejudice any rights of Respondent, the General Counsel recommended that Respondent be granted sufficient time to prepare and answer the amended complaint. The Trial Examiner offered to postpone the hearing or grant Re- spondent an opportunity to review the transcript after the close of the hearing in order to determine whether or not it wished to reopen the record for the purposes of introducing additional testimony concerning matters covered by the amendment At the conclusion of the hearing, Respondent indicated a desire to have an opportunity to review the transcript so as to decide whether or not it wished to reopen the record No motion has been made to reopen the record Under these circumstances , we find that Respondent was not prejudiced by the amendment to the complaint TRIAL EXAMINER'S DECISION GEORGE TURITZ, Trial Examiner International Union of Electrical, Radio & Machine Workers, AFL-CIO, herein called the Union, filed a charge in Case 16-CA-3143 on October 31, 1967, and filed a charge and an amended charge in Case 16-CA-3241 on March 7 and March 25, 1968, respectively, alleging that F A Reynolds Co , Inc., herein called Re- spondent and, at times, the Company, has engaged in and is engaging in certain unfair labor practices as set forth and defined in the National Labor Relations Act, as amended, herein called the Act Said charges were served upon Re- spondent on October 31, 1967, and March 7 and 25, 1968, respectively On January 31, 1968, the General Counsel of the National Labor Relations Board, herein called the Board, through the Regional Director for Region 16, issued a complaint, and on April 3, 1968, issued an order consolidating cases, amended complaint and notice of hearing, against Respondent. Respondent filed its answer in which it denied all allegations of unfair labor practices A hearing on the Complaint was held before the Trial Examiner named above in Abilene, Texas, on April 9 through 12, 1968 The General F. A REYNOLDS CO., INC 419 Counsel and Respondent were represented by counsel at the hearing and the Charging Party by an international representa- tive who, however, participated to a limited extent except as a witness The General Counsel and Respondent have filed briefs with the Trial Examiner Upon the entire record, and from his observation of the witnesses, the Trial Examiner makes the following FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent, F A Reynolds Co , Inc., is a Texas corpora- tion having its principal office and place of business in Abilene, Texas, where it is engaged in the manufacture and repair of wind instruments It is a wholly owned subsidiary of Chicago Musical Instruments Company. Respondent, in the course and conduct of its operations at the Abilene plant, annually manufactures, sells and distributes products valued at in excess of $500,000, of which products valued at in excess of $50,000 are shipped in interstate commerce directly to persons located outside the State of Texas It is found that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act ances were rejected, Leal forthwith handed Wilson a written grievance Collier, Respondent's personnel director, who knew of the conference in advance, was outside the door with a written notice of warning in his hand. When he had ascertained that Leal had submitted the written grievance, he gave Wilson the warning notice, which stated-' To John Leal It has come to our attention on August 30, 1967 you committed the following violation(s) of our established rules of conduct A review of your work performance reveals that your production is below an acceptable level Since you have been informed verbally of this condition and have agreed you are naturally slow, it is essential that you understand that your work performance must improve to an acceptable level. You are hereby advised that this Warning Notice has been given you so that you may know such action cannot be tolerated, and that any further violation of Company rules will result in appropriate disciplinary action. B. D. Collier Verbon C Wilson Witness Supervisor I hereby certify that I have received a copy of the above warning notice II THE LABOR ORGANIZATION INVOLVED International Union of Electrical Radio and Machine Workers, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES The principal issues litigated at the hearing were whether Respondent unilaterally changed established conditions of employment, and whether the negotiations between Re- spondent and the Union reached an impasse justifying such unilateral changes, if made, and justifying Respondent's refusal to continue meeting with the Union unless the Union first submitted new proposals Also litigated were issues of interro- gation and other coercive conduct of Respondent A Interrogation and Other Interference, Restraint and Coercion 1 Leal's reprimand John Leal had worked for Respondent about 2 years and was the Union's chief steward, participating in the processing of all grievances In the late part of August 1967 Leal approached his supervisor, Wilson, about a merit increase but was told that his work was too slow. On August 29, either during the above conversation or subsequently, Leal orally submitted to Wilson a grievance that he had been discrimina- torily denied a merit increase because of his race and his union activities. The next day Wilson summoned Leal to the office and told him that Respondent denied any violation of the contract and that the grievance could be dropped at that point or carried further. As frequently happened when oral griev- Date Signature of Employee Leal testified that Wilson handed him the notice with the remark that since Leal had filed the grievance alleging discrimination, he had no other choice Wilson testified that he had spoken to Leal about his slow production approximately a week before the grievance was filed, that he had informed Respondent's president, Caldwell, of the occurrence, and Caldwell had instructed him "to put it in writing," and that he had thereupon given the information to Collier, the personnel director, for hum to prepare such writing Collier testified that Wilson requested a written warning for Leal and that it usually took it 2 or 3 days or longer to get one processed. He testified, further About the time I got this wntten warning typed up and approved by Mr. Caldwell, I was informed by Mr Verbon Wilson, that John was-had filed a grievance In order to kill two birds with one stone, or save time I suggested to hum that when he gives the answer to the grievance we could present the written warning to him at that time, and that's the way it happened . . However, that was not how it happened The warning notice was not given with the answer to the oral grievance but was issued only after the written grievance had been delivered to Wilson by Leal Nor does the Trial Examiner credit Collier's testimony that he did not learn of the grievance until "about the time" the warning notice, which bears the date August 30, had been typed up and approved. The problem of Leal's slow production had allegedly been pending before higher authori- ty, and as other testimony establishes that Wilson kept Caldwell and Collier in close touch with day-to-day happenings in his department, it must be inferred that they had knowledge prior to the typing and approval of the warning notice that the August 29 oral grievance involving the pending problem had 1 General Counsel's Exhibit 15 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been submitted The August 30 date becomes even more significant if weight is given to the wording of the warning notice, i e , "it has come to our attention on August 30 " (Emphasis supplied ) This is at complete variance with Wilson's testimony that Caldwell instructed him to "write up" Leal's shortcomings a week before the grievance was filed The Trial Examiner credits Leal's account of the circumstances under which the warning notice was issued It is found that Respondent issued the warning notice to Leal in reprisal for filing a written grievance and in order to discourage employees from filing grievances The filing of an individual grievance under a collective- bargaining agreement is a right protected by Section 7. See Interboro Contractors Inc, 157 NLRB 1295, 1298, enfd. 388 F 2d 495 (C A 2). In the absence of bad faith it is not material whether or not Leal's grievance had merit. See Mushroom Transportation Co., Inc, 142 NLRB 1150, 1158, reversed on other grounds 330 F 2d 683 (C A 3), Socony Mobil Oil Company Inc, 153 NLRB 1244. As the warning notice was a form of discipline and contained a threat of further discipline, it is found that by issuing it Respondent violated Section 8(a)(1) of the Act. 2 Interrogation Kerry Grider testified that his supervisor, Verbon Wilson, remarked to him, "I don't know if this is true or not, but I heard you . [are] going to join the Union," to which Grider replied, "Yes, my intentions are " Grider placed the conversa- tion at 2 or 3 weeks to 2 months after his probation, which ended about May 1, a date barely within the 6-month period prior to October 31, 1967, when the charge was filed. Wilson testified that Grider had asked him what the Company thought of his joining the Union, to which he had replied that it made no difference to him. He placed the conversation during Grider's probation The Trial Examiner would credit Grider's version of the substance of the conversation, since he gave the impression of sincerity and of trying to be truthful. However, such credit cannot be given to his testimony as to the time of the conversation, he displayed a poor recollection of chrono- logy The conversation, according to Grider's version, would have occurred prior to his joining the Union, a date which presumably could have been fixed by documentary evidence available to the General Counsel In the absence of explanation for the failure to produce such evidence, it is found that the General Counsel has failed to prove by a preponderance of the evidence that the incident occurred within the statutory period of limitations Rudy Vasquez, the leadman of raggers in the Finishing Department (Department 50), testified that about 5 or 6 months before the hearing, which would be in about October or November 1967, his supervisor, Lambert, asked him if he knew that Jimmy Stokes, another leadman, had joined the Union, adding that Stokes was crazy for doing so He also testified that Lambert then asked him if he had joined, to which he replied, "No, not yet." Lambert's testimony with respect to the alleged conversation was as follows. Q. Have you ever inquired of Rudy Vasquez as to his intent, or whether he planned to join the Union? A No, I never have Respondent contended that Vasquez was in any event a supervisor so that no violation could have occurred such as is alleged in the Complaint The supervisory status of leadmen was litigated in Case No 16-RC-4108, the certification in which is alleged in the Complaint as the basis for the Union's status as bargaining representative and the Regional Director found that the various leadmen, including those in the Finishing Department, were not supervisors They were in- cluded in the unit, and no request for review was filed Respondent in correspondence with the Union before and after the negotiations included Vasquez among the "unit employees."2 Lambert's testimony as to the thoroughness with which he made his own investigation as to the compe- tence of employees Vasquez recommended against keeping was in complete contradiction of his ready response, to counsel's leading question, that he relied "principally" upon Vasquez' recommendations. So far as direction of work is concerned, the evidence establishes that Vasquez' participation was routine, and he was severely reprimanded when, apparently to favor a friend, he departed from routine in making an assignment. In view of the Regional Director's finding, the actions of the parties under the contract with respect to Vasquez, the lack of effectiveness of his recommendations as to retaining employees, and the routine nature of his direction of work, it is found that Vasquez was not a supervisor Respondent attacked Vasquez' credibility on the basis of his denial on the stand that he had been questioned by Respondent's officials about certain domestic problems in- volving himself and a female employee, and about his conduct towards other female employees These questions were em- barassing in nature and were not material to the issues of the case Without condoning Vasquez' answers, the Trial Examiner does not find that they destroyed his credibility.3 His account of his conversation with Lambert was most convincing and the Trial Examiner finds that it did take place as he testified Lambert gave Vasquez no valid reason for his question, nor did he assure Vasquez that there would be no reprisals if he indicated that he had joined the Union. See Struksnes Construction Company Inc., 165 NLRB No. 1062 The Union had been certified, and the parties were in the middle of a 1-year contract, Respondent could not legitimately have been trying to ascertain anything about its obligation to bargain Lambert's comment about Stokes indicated, rather, that he was trying to find out whether another leadman was "crazy" enough to risk alienating Respondent by joining the Union. Implicit also was the threat that such conduct would be duly taken into account by Respondent in a manner that would affect Vasquez' future with the Company. It is found that by Lambert's question and statement to Vasquez Respondent violated Section 8(axl) of the Act 3 Promise of benefit During the October 3 bargaining session, discussed below, while the Union's proposal to eliminate merit increases was under discussion, Bernice Overall, an employee-member of the bargaining committee, in response to one of the Company's arguments, remarked that she guessed that the Company did 2 General Counsel 's Exhibits 12, 13, and 52 Union was responsible for some of the incidents , so that resentment 3 Respondent contends that resentment because of these incidents would have been directed both ways provided a motivation for Vasquez to answer falsely However, the F. A. REYNOLDS CO., INC. not like her very well, since she had not received a merit increase. Collier, Respondent's personnel director, testified that his reply, addressed to the entire committee, was. "I believe if you will look at the employees' handbook that was in effect prior to the Union ... you will find that merit reviews were provided for which in some instances is faster than the current contract calls for s4 Collier gave the fullest testimony of any witness as to what had occurred at the various bargaining sessions and he impressed the Trial Exam- iner as having a good recollection, aided at times by notes taken at the meeting, of the nature of the discussions, and as having testified truthfully about them The Trial Examiner credits his version of the incident over that of Overall It is found that Collier's statement was appropriate discussion of the Union's proposal and of Overall's remark, and that it did not constitute or imply a promise of benefit.' B. The Refusal to Bargain 1 Unit and majority On June 17, 1966, following a secret-ballot election in Case 16-RC-4108, the Union was certified as the bargaining repre- sentative of the Respondent's employees in the following appropriate unit All production and maintenance employees at the Em- ployer's Abilene, Texas, plant, including shipping and delivery employees, janitors, leadladies, leadmen, section foreman Pete Barrera, Foreman Jimmy Stokes, and Fore- man Robert Saldana, but excluding office clerical em- ployees, guards, watchmen, professional employees, and supervisors as defined in the Act Pete Barrera was section foreman in the mounting department, Jimmy Stokes was foreman over buffing, and Robert Saldana was foreman over lacquering On October 31, 1966, Re- spondent and the Union entered into a coll ective -bargaining agreement which was to expire on October 31, 1967, unless automatically renewed pursuant to the terms of the agreement. Both parties wrote letters electing to terminate the contract at its expiration, and later each gave the "specific" 5-day notice of termination required to prevent the contract from con- tinuing in effect thereafter. On January 8, 1968, in Case 16-RD-429 a petition for decertification of the Union was filed, which was dismissed on April 4, 1968, apparently on the basis of the pendency of the present case. It is found that the Union, at all times material, was, and still is, the exclusive representative of all employees in the appropriate unit for the purpose of collective bargaining 2 The refusal to meet The parties met seven times, namely, September 18, October 2, 3, 16, 17, and 30, and November 17, all in 1967. The Company's chief spokesman was Donald Rea, a consultant in labor relations who traveled from his office in Los Angeles for the various meetings. The Union's representatives were 4 The handbook, Respondent's Exhibit 5, provided for merit reviews and for increases "as merited " as follows- One 30 days after hire, then four at 90-day intervals, and then every 6 months . It also provided for special reviews at any time when the employees showed exceptional progress. The contract, General Counsel's Exhibit 2, provided for regular periodic increases to, and then within, rate ranges, with the right 421 Dolan and Javior, two of its officials; they were accompanied by an employee committee. The Company repeatedly re- quested that meetings start in the morning but, except for those of October 3 and November 17, the Union refused unless Respondent would pay the employee-members of its nego- tiating team for their time, which Respondent declined to do The Union offered to extend meetings into the night, but the Company refused. The meetings, except for the one held on October 3, were of short duration and the total time spent at the first six sessions was not more than 15 hours. At the seventh session the Mediator spent a total of 1'6 hours in separate sessions with the parties. The record does not specifically show how much time was spent in joint sessions but, as the parties for the most part merely restated their prior positions and arguments without real discussion, it is inferred that all proceedings on November 17 lasted not more than 2if hours. All sessions, except for the one held on October 2, were terminated by mutual consent. In the initial stages of the negotiations the Union submitted 15, and the Company 21, proposed changes in the old contract 6 At various times during the negotiations some proposals were withdrawn or modified. Among those with- drawn were the Company's proposals for abolition of daily overtime, for the Union to lose its bargaining status if any member engaged in a strike, and that any additional increase in insurance premiums be borne by employees or the benefits reduced, and the Union's proposals for more generous in- surance, double time for some overtime, payment to em- ployees for working time spent in negotiations, an incentive system, halving the training time for each job, and for elimination of merit increases The sixth conference, held on October 30, was attended by a Federal Mediator. He interrupted an attempt to discuss issues and, in accordance with what he described as his practice, first spoke to the parties separately. A joint conference was then held at which the Company presented what it called its "best and final offer." The offer was not described during the hearing. The Mediator stated that the Company and Union were both firm in their positions, that he saw no movement, that he felt that he had failed to bring about an agreement, and that he saw no point in calling another meeting. This last statement upset the union representatives, who insisted upon scheduling another meeting Rea, the Company's chief nego- tiator, refused and told them that if the Union's position changed, they should contact the Mediator to arrange another meeting. On November 17 the seventh and final conference was held It had been initiated by the Union. The Mediator delivered to the Company a letter from the Union setting forth the Union's current position, and he pointed out the issues on which the Union was firm. The Company, in turn, set forth the issues on which it was firm. After spending some time with each of the parties separately, the Mediator reconvened a joint conference. Rea read off the proposals the Company insisted upon and stated that this was the Company's best and final offer. The Company's prior wage offer was improved by providing for an reserved to the Company to pay higher rates in recognition of exceptional skill and ability 5 Distinguish L C. Cassidy and Son, Inc., 171 NLRB No . 136, where a statement was made which was prospective and which indicated that the employees would benefit if they rejected the Union. 6 General Counsel 's Exhibits 6 and 8 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD increase of all range rates by 10 cents per hour instead of so increasing only the top of each range, and for an additional 5 cents per hour at the top of each range on April 1, 1968. The record does not disclose in what other respect, if any, the Company's November 17 offer differed from its offer of October 30. At the end of the November 17 conference the following issues remained unresolved (1) Checkoff Respondent insisted upon complete abolition of the checkoff The Union insisted upon its retention and upon making it irrevocable for yearly periods. Under the expired contract it had been revocable at any time (2) Overtime Respondent insisted that the contract expressly provide that employees could be required to work overtime, at the same time maintaining that that was the situation under the expired contract even without such a provision The Union maintained that overtime was voluntary under the old contract and insisted on keeping it that way (3) Seniority The Company insisted on retention of the expired contract's provisions, plus (a) a provision giving it the authority to extend new employees' probation an additional 30 days, and (b) a provision giving it the right to terminate an employee's seniority because of absence for two working days without notice, deleting the exception in the expired con- tract, . "unless circumstances make it impossible for the employee to notify the company " The Union did not agree It insisted upon the seniority clause contained in the contract of F E Olds, an affiliated company, which provided for plantwide seniority rather than departmental seniority, as under the expired contract (4) Holidays The Union insisted upon, and the Company refused, one additional holiday (5) Wages The Company offered to increase all rates within ranges 10 cents per hour at the time of agreement and to add 5 cents per hour more at the top of all rate ranges on April 1, 1968 The Union demanded an increase of 30 cents per hour across the board. (6) Cleanup time The Union demanded two 5-minute cleanup periods for the buffing and sanding room; Respondent rejected the proposal (7) Grievance Procedure The Company insisted on abolishing, and the Union insisted on retaining, the provision in the expired contract that grievance- committee members not lose pay for time spent at "Step III meetings and beyond." At the joint conference on November 17 the Mediator proposed to the Union that the Company's offer be placed before the membership for them to vote on by secret ballot. The Union rejected the Company's offer but entered into discussion with the Mediator as to the appropriateness of his suggestion for the secret ballot. Rea interrupted their dis- cussion to ask whether the Union would do what had been suggested. Dolan told Rea, with profanity, that it was none of his business. On November 30 Rea wrote to the Union' that Respondent had been informed that the employees had rejected the Company's "best and final offer" by a vote of 100 percent and that, "It is now apparent that an impasse does exist " He stated, further, that he assumed that the Union would not object to the Company placing its last wage offer into effect and that the Company would do so if the Union did not state such objection The letter concluded. "A copy of this letter will be posted on our client's bulletin board, as well as a copy 7 Respondent's Exhibit 8 8 General Counsel's Exhibit 32. 9 This was stated in a letter from the Mediator to Respondent and the Union, General Counsel's Exhibit 31, which Respondent received on of your reply " On December 4 Javior sent Rea a telegram rejecting the proposal' and adding, "Any wage settlement during these negotiations must be made retroactive to October 31, 1967." The telegram concluded "Our suggestion is that the company meet immediately with the IUE for the purpose of completing negotiations " The Union asked the Mediator to schedule a joint con- ference.' Rea, however, advised the Mediator that in his opinion such a conference would not result in any change in the Company's last offer. At Rea's request the Mediator asked the Union to submit an offer to the Company in writing through the Mediator's office, as a complete offer of settle- ment which would be recommended to the membership On December 11 the Union complied and through the Mediator forwarded the following proposals to the Company, which received them on December 14 10 1 Seniority-Language as currently exists in the F E. Olds contract, Fullerton, California, with the exceptions that the IUE is willing to modify their position to the extent that department seniority shall be provided for. 2 Wages-Twelve cents (124) an hour across-the-board retroactive to October 31, 1967, with an additional thirteen cents (134) across-the-board to go into effect the day the contract is signed 3 One additional Thanksgiving. 4 An irrevocable holiday, preferably the Friday after check-off providing for one 10-day escape period per year. 5. Overtime as currently provided for in the agreement between the IUE and F. A. Reynolds Company. 6 The Union proposes in addition to the above, two 5-minute clean-up periods-one prior to lunch and one prior to quitting time for the Sanding and Buffing Department. In Lieu of Number 6, the Union will accept smoking privileges for the employees in the factory in unrestricted areas 7. This proposal is intended to resolve all issues, that is all Company proposals that have not been agreed to and not covered above are hereby rejected All Union proposals that have not previously been agreed to and not outlined above would be withdrawn. The Union's letter which accompanied the proposals stated .. The Union is making this proposal in writing on the assumption that a contract can be settled short of a strike If the Company agrees to the attached proposal, the Union will recommend acceptance to their members of Local 1016, IUE-AFL-CIO." In his letter forwarding the Union's letter and proposals to the Company, the Mediator stated 1 1 . Everything in this proposal appears to be negotiable to some degree; however, as long as the Company is complete- ly adamant in its present position to refuse to consider any type of checkoff, the Union position appears to stiffen. Checkoff, in other words, is the key issue separating the parties. Commissioner's position, is that I will communicate with both parties in any manner which appears conducive to settlement of your differences by agreement rather than December 14 Respondent at no time denied the statement 10 General Counsel 's Exhibit 11 11 General Counsel's Exhibit 31 F. A. REYNOLDS CO., INC. 423 strike As long as such communication can be rewarding through normal channels, these channels will be utilized If and when an additional joint conference is indicated, I will schedule same as promptly as possible The Mediator's letter was addressed to both the Company and the Union. On December 14, 1967, Respondent wrote to the Mediator, with a copy to the Union, stating in part,' 2 that the Mediator's comment that the checkoff was "the key issue separating the parties is not necessarily correct", that the Union's wage proposal was the first specific wage proposal received from the Union; that retroactivity had never been mentioned except in the Union's telegram refusing to consent to the effectuation of the Company's proposed increase, that the Company had already specifically rejected the Union's demands for the Olds Company seniority language, an ad- ditional holiday, clean-up periods, and for smoking privileges, that the Union's December 11 proposal broadened, rather than narrowed, the area of disagreement, and, finally, that it was rejected The Company's November 17 offer was "reiterated " On January 15 the Union wrote to Respondent, stating that since the Mediator had not seen fit to set up a collective-bar- gaining session, it was requesting Respondent to meet with it, with or without the Mediator, on January 22 through 31 at 3 30 p m each day, and it sent a similar letter on January 22' 3 On January 19 Respondent replied to the first letter that a question as to the Union's majority status existed in view of the pendency before the Board of the petition for decertification in Case No 16-RD-249 14 The Union replied that in view of its certification Respondent was under duty to bargain with it pending decision by the Board of any question concerning representation, and the requests for bargaining meetings were renewed' 5 On January 24, Rea replied 1 6 He stated that in view of the union membership's rejection of Respondent's "best and final offer," an impasse existed on November 30, 1967, that the Union's proposal of December 11 did not narrow, but widened, the area of disagreement, since the Union for the first time injected the issue of retroactivity He reiterated that Respondent's offer of Novem- ber 17 stood as its best and final offer The letter then stated It has been, and still is apparent that an IMPASSE DOES EXIST by and between the parties. In the event your position has changed from the proposals mailed to us by Commissioner Koenig and dated December 11, 1967, please notify us immediately by submitting to us a written proposal. . The letter concluded by promising information which the Union had requested, and this was ultimately furnished On January 29 and February 5 and 12 the Union repeated its request for meetings "at the bargaining table," stating in various forms that, "The U S. mail is no substitute for the bargaining table " The letters usually included language such as, " . fancy phrases like impasse does exist will not relieve you of your obligations to meet and negotiate at the bargaining table."' 7 The exchange of correspondence con- tinued for some time,' 8 with the Union repeatedly demanding that Respondent meet with it' 9 and Respondent pointing out that since an impasse had been reached, it would not meet with the Union to engage in futile negotiations 20 Respondent emphasized that it stood ready to arrange a meeting with the Union upon receipt of written proposals demonstrating that the Union's position had changed. In one letter Respondent renewed its proposal to place into effect the wage increase it had offered, but this was rejected by the Union Concluding Findings As to the Refusal to Meet As Respondent has admittedly refused the request of the employees' statutory bargaining representative for further meetings after November 17, it has the burden of justifying such refusal Respondent makes the following contentions and claims (1) That the record is devoid of any evidence which would show that either party requested anyone with the Federal Mediation Service to schedule any additional meeting for any purpose; Respondent, moreover, apparently contends, citing N.L R B. v. Cambria Clay Products, 215 F 2d 48 (C A 6), that since the Mediator did not see fit to schedule additional meetings, Respondent's refusal to meet was not unlawful (2) That the Union ignored Respondent's request to submit a new proposal as the basis for future negotiations (3) That the Act does not require an employer to continue to meet with a bargaining representative after an impasse in negotiations has been reached, which, it claims was the case here even before the November 17 meeting As to item (1), the record does show, as already found, that at some time between November 17 and December 11 the Mediator advised Respondent that the Union had requested him to arrange a meeting The record is not clear as to his opinion of the usefulness of such a meeting, his letter however, indicates that he did not schedule one at least in part because Respondent stated that a meeting would not change its last offer In any event, the Mediator's decision not to arrange such a meeting at that time does not determine the parties' rights First, his opinion, although entitled to consideration, is not conclusive, especially since he did not, and could not, testify at the hearing and thus subject his opinion to the test of cross-examination Indeed, if the Mediator's opinion were to be accepted as conclusive, Respondent would be out of court, its refusal to meet with the Union persisted in the face of his statement, referring to the Union's proposal of December 11, "Everything in this proposal appears to be negotiable to some degree " Second, his decision not to call a meeting and his pessimistic statements do not warrant a finding that he thought such a meeting would be useless if held Mediators use various devices to push parties into finding agreement, and it would be unrealistic to take all their statements made under those circumstances at face value Third, by resorting to mediation parties do not place their rights under the Act in the control of the mediator Their actions vis-a-vis the mediator are significant in weighing the nature of their conduct; but, absent bad faith or unreasonableness, they are not disabled from 12 General Counsel's Exhibit 30. 13 General Counsel's Exhibits 34 and 36 14 General Counsel's Exhibit 35. 15 General Counsel's Exhibit 37 16 General Counsel's Exhibit 38 17 General Counsel's Exhibits 39, 41, and 42 18 The correspondence in evidence closed with a telegram from the Union to the Company dated March 25, 1968, General Counsel's Exhibit 50 19 General Counsel's Exhibits 44, 45, and 46 20 General Counsel 's Exhibits 43 and 49 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seeking agreement without the mediator, especially where the mediator has failed As to item (2), Respondent is not accurate in saying that the Union ignored its request to submit a new proposal if the claim refers to the time subsequent to the parties' last meeting on November 17 On December 11 the Union submitted a written proposal modifying its prior position in two material respects (a) It agreed to departmental seniority in place of plantwide seniority theretofore insisted on; and (b) it cut its wage demands down from 30 cents per hour to 25 cents per hour, at the same time giving up its demand for retroactivity with respect to half of this amount 2' Item (3), the question of impasse, is the crucial issue. The parties had for some time maintained their respective and conflicting positions with respect to checkoff, mandatory overtime, one additional holiday, two 5-minute cleanup periods for the buffing and sanding room, and loss of pay by grievance-committee members. As to seniority, as already stated, the Union had acceded on December 11 to Re- spondent's insistence upon departmental seniority, but it still demanded the language contained in the seniority provisions of the contract of Respondent's affiliate, F. E. Olds, while Respondent insisted on its own seniority provisions. As to wages, the Union on October 16 had proposed a 30-cent-per- hour increase effective November 1, Respondent on October 17 had countered with a proposal for a 10-cent-per-hour increase at the top of each rate range, and on October 30 had presented this as part of its first "best and final offer " On November 17, however, Respondent had improved this pro- posal by offering the 10-cent increase throughout the rate ranges, plus an additional 5 cents at the top of each range in April 1968. On December 4 the Union explicitly demanded that all increases be retroactive to October 31, and on December 11 it reduced its demand from 30 cents to 25 cents per hour, with half not to be retroactive. The foregoing is not a picture of rapidly moving negotiations, but neither is it one of negotiations caught in the doldrums. It is true that the Act does not require parties to engage "in fruitless marathon discussion." But it is also true that the heart of 8(a)(5) is the obligation to discuss. In United States Cold Storage Corporation, 96 NLRB 1108, The Board said It is elementary that collective bargaining is most effectively carried out by personal meetings and conferences of parties at the bargaining table. As stated by Mr COX. 22 . Participation in debate often produces changes in a seemingly fixed position either because new facts are brought to light or because the strength and weaknesses of the several arguments become apparent Sometimes the parties hit upon some novel compromise of an issue which has been thrashed over and over. Much is gained even by giving each side a better picture of the strength of each other's convictions. The cost is so slight that the potential gains easily justify legal compulsion to engage in the discussion [Emphasis supplied.] A party undertakes a heavy burden when he refuses to meet 21 The Union's original demand was for a wage increase "effective November 1, 196'7," but that was made in September , when it would not have been retroactive When November 1 came and went it said nothing about the effective date of an increase until December 4, when the Union demanded that any wage increase be retroactive. 22 Archibold Cox, The Duty To Bargain in Good Faith, 71 Harv L. Rev. 1401, 1412 or, as in this case, when he requires as a condition of meeting that his opposite make further concessions in writing, on the ground that discussions have reached, or are about to reach, the stage of a fruitless marathon Not only is Respondent in error, as already pointed out, in its assumption that the parties' discussions had resulted in a deadlock, but it has also lost sight of other important factors bearing upon the question of impasse First, even though the Union's concessions on December 11 of 5 cents per hour and plantwide seniority were moderate, they were by no means insubstantial and they negated the proposition that there was no prospect of further movement. In collective bargaining parties are cautious in making concessions in order to seek openings in their opponents' positions On November 17 the Company had moved from its October 30 "best and final offer" as to wages, and on December 11 the Union had reduced its wage demand In American Federation of Television and Radio Artists, AFL-CIO, Kansas City Local v NL.R.B and Taft Broad- casting Company, 395 F.2d 622 (C A D C.), the court stated ... It is indeed a fundamental tenet of the Act that even parties who seem to be in emplacable conflict may, by meetings and discussion, forge first small links and then strong bonds of agreement .... Second, Respondent has ignored the question of the length of the negotiations, which the Board has said is a relevant factor in determining whether an impasse exists.23 Negotiations for collective contracts customarily do not resolve themselves as expeditiously as do negotiations for ordinary business con- tracts. The Supreme Court stated in United Steel Workers of America v Warrior and Gulf Navigation Co , 363 U S S74 A collective-bargaining agreement is an effort to erect a system of industrial self-government When most parties enter into contractual relationship they do so voluntarily, in the sense that there is no real compulsion to deal with one another, as opposed to dealing with other parties This is not true of the labor agreement. The choice is generally not between entering or refusing to enter into a relationship, for that in all probability pre-exists the negotiations ... The fixed relationship of the parties results, typically, in the protracting of negotiations. The 18 hours or less spent by the Company and the Union in their seven sessions were far below what would qualify as a marathon, as collective-bargaining negotiations go. This characteristic of labor-management nego- tiations appears even in cases cited by Respondent in its brief. Thus, in United States Storage Corporation, 96 NLRB 1108, the parties had engaged in 17 bargaining sessions and the Board merely assumed, without deciding, that an impasse had been reached In Webb Furniture Corporation, 152 NLRB 1526, the parties had had 17 bargaining sessions; in Bi-Rite Foods, Inc, 147 NLRB 59, "some 20 to 25...sessions extending over a 4-month period .. "; in Dunn Packing Company, 143 NLRB 1149, an unspecified number of sessions over 1'h years 2 4 Cases could be cited where negotiations were considerably more extensive. Third, Respondent gave no consideration at all to, and never discussed, the supervening circumstance that its 23 See Taft Broadcasting Co. 163 NLRB 475, 478 24 in Dunn Packing Company the employer, while requesting the Union to submit a written proposal, nevertheless stated unconditionally and unequivocally , 2%z years after the inception of negotiations, "Of course, we will meet with you on demand." F. A. REYNOLDS CO., INC. second "best and final offer" had been unanimously rejected by the employees As already stated, Respondent was not negotiating an ordinary business contract with someone who could go elsewhere or with whom it could choose not to deal An employer seeking in good faith to reach agreement will give serious consideration to the extent and strength of his employees' feelings as to matters at issue See the quoted passage from Mr Cox's article, supra. Indeed, at the November 17 session Respondent displayed specific interest in this question when Rea interrupted Dolan's discussion with the Mediator more than once to ask if the Union was willing to submit Respondent's proposal to the employees As the negotiations had not been unduly lengthy, and as the parties' respective positions changed materially during and following the last bargaining session held, and as the em- ployees, following the last session, had voted unfavorably on Respondent's proposal, it is found that no impasse had been reached It is further found that Respondent was not justified, because the Union did not submit a further new proposal, in refusing the Union's requests for meetings made on December 4, 1967, and thereafter, and that Respondent by such refusal violated Section 8(a)(5). 3 The refusal to furnish insurance data In their initial proposals both the Union and the Company included changes with respect to insurance. When this was discussed at the third bargaining session, the Union repre- sentatives stated that since it had developed that cost was a factor, they would require the Company's "D-2 information." The "D-2 form" recorded the total amount of premiums paid, benefits paid, and costs to the carrier denominated "retention charges." The Company representatives promised the in- formation At the fourth meeting the request was renewed and it developed that the Company had failed to bring the form along. Collier testifed that at the fourth meeting he told the union representatives that the premiums paid had amounted to $21,000, that over $19,000 had been paid out in benefits, and that the various other costs had brought the insurance carrier's expenditures up so that it had experienced a loss of several hundred dollars, that he also stated the premium costs per employee, both single and with dependents, and that a copy of the Company's insurance booklet was furnished to the Union representatives. He testified further- It is my recollection that this information satisfied Mr. Dolan There was no big pitch made on a D-2 form, it had not been requested in writing, we had not given this information in writing, and that was all that I thought there was to it, until we got into these hearings." He stated, also, that the Union representatives made no subsequent requests for a D-2 form Javior testified that he requested the D-2 form information at every meeting except the second. He testified that Rea at first gave various dilatory or indefinite answers, but that at the fourth and subsequent meetings his reply was that the Union would have to be satisfied with the information already given. At the first meeting, when Javior made a request for certain information concerning the employees in the bargaining unit, Rea suggested 25 The Trial Examiner does not construe "schedules of production," contained in sec 2 of art XV111, to refer to hours of work 425 that in order to avoid misunderstanding, requests for informa- tion be in writing. The following day Javior wrote to Rea requesting the information in question. He did not explain why he did not include the D-2 information in his request. He testified to a vague recollection of having also requested the D-2 form in writing at some time, but he hedged his testimony with a refusal "to swear" to it, and he admitted that he had searched unsuccessfully for a copy of his letter. The insurance issue did not loom especially large in the negotiations, and both the Company and the Union withdrew their respective proposals prior to their termination On the basis of the foregoing circumstances and of Collier's forthright testimony, which contrasted with Javior's vagueness, the Trial Examiner has credited Collier's testimony that the Union indicated that it was satisfied with the D-2 information orally furnished at the fourth meeting, and that it did not thereafter renew its request It is found that the request was in effect withdrawn It is further found that the General Counsel has failed to establish by a preponderance of the credited evidence that Respondent refused to furnish to the Union data relating to the insurance. 4 The unilateral change in hours of work Article V of the old contract provided as follows. Hours of Work Section 1. The normal workday shall consist of not more than eight (8) consecutive hours, exclusive of a thirty (30) minute lunch period. Section 2 The normal work week shall consist of not more than forty (40) hours worked on five (5) consecutive days, Monday through Friday It is however, agreed that certain employees may be assigned to a different scheduled work week so long as said work week consists of five (5) consecutive days (40 hours) As much advance notice as possible will be given any employee requested to work a different scheduled work week Section 3 Nothing in the foregoing sections shall be construed as a guarantee of any number of hours per day or per week Article VI provided for time and one half for daily and weekly overtime, and for Saturday work by employees working, or available for work, during the 5 preceding days, required that overtime be approved in writing, and provided that overtime would be distributed as equally as practical among those normally performing the work. Article XVIII of the contract was a broad man agement-prerogative provision which, how- ever, contained no express reference to hours of work,2 5 and which included the following. "Section 4. Nothing herein shall constitute a waiver by the Union of any of its rights under the terms of the Labor-Management Relations Act " Respondent's Employees' Handbook contained the following 26 "The work period is scheduled and posted on the Employees Bulletin Board," and Respondent kept posted on the bulletin board located near each of the half-dozen timeclocks distributed throughout the plant work schedules in the following form.27 26 Respondent 's Exhibit 5 27 General Counsel's Exhibits 19 through 26 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NORMAL WORK WEEK MON THRU FRI. 7 30 A.M. TO 4 00 PM. OVERTIME SCHEDULE MON THRU FRI. Effective Starting Thru Department I Employee or Group Hours Starting I Posted By Thru Time Respondent placed in evidence some 65 work schedules on the above form covering various periods between November 1966, shortly after the contract became effective, and March 1968 Prior to February 1968 the posted schedules for the most part showed workweeks of 81h to 9ih hours, predominately 8' to 9 hours and none of more than 9'f hours The record establishes that in addition some employees worked on Saturdays and that at times employees worked 10 hours per day on a voluntary basis. For the periods starting February 5 and March 4, 1968 Respondent posted Monday to Friday schedules showing 10 hours of work per day for male employees in certain departments and 10' hours for several Among those sub- jected to the 10-hour schedule was Kerry Grider He had been pleased to work a 9-hour day, but the 10-hour schedule interfered with a second job he had elsewhere He had refused to work the 10th hour when it was offered on a voluntary basis in December and January, and when the 10-hour schedule was posted, he frequently walked off the job after 9 hours. This resulted in a formal oral warning to him on March 8, 1968, with express notice that he would be replaced if he did not work the scheduled hours.28 Grider was still employed by Respondent at the time of the hearing During the negotiations Respondent proposed, and insisted upon, a provision, "... that employees shall be required to work scheduled overtime hours ... " The Union claimed that under the old contract overtime had been voluntary and it insisted that it remain so. Respondent claimed that under the old contract it had the right to require overtime but that it needed the additional language to avoid the difficulty it was having persuading employees that overtime work was man- datory Until the incident with Grider the problem had not arisen with respect to daily overtime, but only with respect to work on Saturdays The issue was fully discussed but no agreement was reached The contract established the normal workday and normal workweek While the provisions relating to overtime make it plain that the parties contemplated that some overtime would be worked, the contract did not establish any maximum hours Nor did the General Counsel prove that a condition of employment had been established by custom or practice that overtime would not exceed any particular number of hours. No issue had ever been raised as to Respondent's authority to schedule a 9- or 9i6-hour day without consulting the Union. The mere fact that no 10-hour day had been scheduled prior to February 1968 does not, standing alone, prove that it was an established condition of employment that Respondent could require 9 or 9'f hours of work but not 10 hours. Moreover, when issue arose as to requiring work outside the normal workweek on Saturday, Respondent insisted on its authority to require such work, and there is no evidence that this was ever contested by the Union. It is found that the General Counsel has failed to prove that Respondent's action in requiring employees to work 10 hours per day constituted a new term or condition of employment or that Respondent unilaterally changed established hours of work. 5. The refusal to discuss grievances Bilbrey, employed since 1965, was a machinist in the tool room In early September 1967 he encountered difficulty making a small tool holder because of a defective bit which he used, with the result that his work report showed the expenditure of excessive time and material. On September 12 his supervisor noted the report and caused the issuance of a written warning notice reading as follows. 2 9 WARNING NOTICE To Billy Bilbrey It has come to our attention 9-12, 1967 you committed the following violation(s) of our established rules of conduct. Failed to follow instruction to advise Supervisor of problems encountered in performance of assigned jobs. In making small tool holder, you made three separate attempts to make one tool holder and scrapped the first two which you are not authorized to do Your failure to advise your Supervisor resulted in excessive material usage and lost time You are hereby advised that this Warning Notice has been given you so that you may know such action cannot be tolerated, and that any further violation of Company rules will result in appropriate disciplinary action, including discharge The final sentence of the notice was part of the printed form, except for the words, "including discharge," which were added by typewriter. When handed a copy of the warning notice, 28 General Counsel's Exhibits 27, 28, and 29 29 General Counsel's Exhibit 17. F. A. REYNOLDS CO., INC. Bilbrey protested that he felt that he was being discriminated against because of the Union He filed a grievance, which was discussed at the third step on October 2, immediately following a negotiating session which had been aborted because of Javior's persistent references to alleged "hanky panky" on the part of the Company Respondent stated that the material wasted and time lost by Bilbrey were not important in themselves but that he had failed to consult his supervisor which, in another situation, could result in sub- stantial losses Respondent refused to withdraw or modify the grievance and invited the Union to institute arbitration proceedings When it was pointed out on October 2 that Bilbrey had wasted only one piece of material, not two, Rea corrected the warning notice accordingly Javior remarked that the Company was reducing the notice to half a warning, upon which Rea said, "We don't have to sit here and listen to these snide remarks Let's go," upon which the company repre- sentatives left the room The Union eventually instituted arbitration proceedings The General Counsel contends that the Respondent refused to process the Bilbrey grievance. 0 Javior's remark about "half a warning" was not such as to justify Respondent in walking out of the meeting On the other hand, Respondent had fully stated and attempted to support its position as to the grievance, and there is no evidence that the Union ever sought another meeting to supplement its own arguments, on the contrary, it submitted the matter to arbitration So far as is disclosed by the record, this was an isolated instance of such conduct on Respondent's part so far as grievances are concerned. Moreover, some allowance should be made for its impatience in view of Javior's provocative, gratuitous, and repeated accusations of "hanky panky" at the bargaining session a short time before Because of all these circumstances no finding is made that Respondent refused to process the Bilbrey grievance or that its actions with respect thereto were violative of Section 8(a)(5) 3 i IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE It is found that the activities of Respondent set forth above in section III, occurring in connection with its operations described in section I, have a close, intimate and substantial relationship to trade, traffic and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce V THE REMEDY As it has been found that Respondent engaged in certain unfair labor practices, it is recommended that the Board issue the Recommended Order set forth below requiring Re- 30 He also contends that Respondent refused to process other grievances, but no page references are furnished and the Trial Examiner recalls no such testimony 31 General Counsel made no contention that the warning was motivated by Bilbrey 's membership in the Union or the negotiating committee, 427 spondent to cease and desist from said unfair labor practices and to take certain affirmative action which will effectuate the policies of the Act. The presence of the warning notice in Leal's personnel file constitutes a constant threat that he may suffer disadvantage from it in the future . In order to ensure that this does not occur , and to give him and other employees assurance that it will not occur , it is recommended that Respondent be required to expunge such notice from its records CONCLUSIONS OF LAW 1 Respondent, F A Reynolds Co , Inc, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2 Respondent is, and at all times material has been, an employer within the meaning of Section 2(2) of the Act 3 International Union of Electrical, Radio and Machine Workers, AFL-CIO, is a labor organization within the mean- ing of Section 2(5) of the Act 4 All production and maintenance employees of Re- spondent at its Abilene, Texas, plant, including shipping and delivery employees, janitors, leadladies, leadmen, section fore- man in the mounting department, foreman over buffing and foreman over lacquering, but excluding office clerical em- ployees, guards, watchmen, professional employees, all super- visors as defined in the Act, and all other employees, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act 5. At all times since prior to June 17, 1966 the Union has been, and it still is, the exclusive representative of all the employees in the appropriate unit for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, within the meaning of Section 9(a) of the Act 6. By refusing to bargain collectively with the Union as the exclusive representative of all its employees in the appropriate unit, Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(5) of the Act 7 By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act 8 The unfair labor practices described above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, Respondent, F. A Reynolds Co., Inc , its officers, agents, successors, and assigns, shall- 1. Cease and desist from. (a) Refusing to meet and confer with International Union of Electrical, Radio and Machine Workers, AFL-CIO, with respect to wages, hours, and other terms and conditions of 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment of Respondent's employees in the appropriate unit, and with respect to the negotiation of an agreement and of any question arising thereunder, or from insisting, as a condition to so meeting and conferring with the Union, that the Union first submit proposals. (b) In any other manner refusing to bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit with respect to rates of pay, wages, hours of employment, or any other terms or conditions of employment The appropriate unit is. All production and maintenance employees of F. A. Reynolds Co , Inc , at its Abilene, Texas, plant, including shipping and delivery employees, janitors, leadladies, lead- men, and section foreman in the mounting department, foreman over buffing and foreman over lacquering, but excluding office clerical employees, guards, watchmen, professional employees, all supervisors as defined in the Act, and all other employees (c) Interrogating employees concerning their union mem- bership or desires in a manner or under circumstances constituting interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act (d) Issuing warnings or other disciplinary notices to em- ployees or visiting other reprisals upon them because they file grievances or exercise other rights protected by Section 7 of the Act (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2 Take the following affirmative action which, it is found, will effectuate the policies of the Act (a) Upon request, meet with and bargain collectively with the Union as the collective-bargaining representative of the employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Expunge from the personnel record of John Leal and from all other records the warning notice dated August 30, 1967 (c) Post at its office and place of business' located in Abilene, Texas, copies of the notice attached hereto marked "Appendix "31 Copies of said notice, on forms provided by the Regional Director for Region 16, after being duly signed by its representative, shall be posted immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 16 in writing, within 20 days from the receipt of this Recommended Order, what steps Respondent has taken to comply herewith 33 IT IS ALSO RECOMMENDED that the allegations that Re- spondent promised employees benefits for refraining from membership in or assistance or support of the Union, that it refused to furnish insurance data to the Union, unilaterally changed hours of work and the grievance procedure and refused to accept grievances, be dismissed Dated NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that WE WILL upon request, meet with and bargain col- lectively with International Union of Electrical, Radio and Machine Workers, AFL-CIO, as the collective- bargaining representative of the employees in the appropriate unit, and if an understanding is reached, embody such understanding in a signed agreement The appropriate unit is* All production and maintenance employees of F A. Reynolds Co., Inc , at its Abilene, Texas, plant, including shipping and delivery employees, janitors, leadladies, leadmen, the section foreman in the mounting depart- ment, the foreman over buffing and the foreman over lacquering, but excluding office clerical employees, guards, watchmen, professional employees, all super- visors as defined in the Act, and all other employees, WE WILL expunge from the personnel file of John Leal and from all company records the Warning Notice to him dated August 30, 1967 WE WILL NOT issue warnings or other disciplinary no- tices to employees or take any other reprisals against them because they file grievances or exercise other rights pro- tected by Section 7 of the Act. WE WILL NOT interrogate you concerning your union membership or desires in a way or under circumstances that would restrain or coerce you WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your right to self-organization, to bargain collectively through repre- sentatives of your own choosing and to engage in any other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. F A. REYNOLDS CO., INC. (Employer) 32 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 the 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 " 33 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 16, in writing , within 10 days from the date of this Order , what steps Respondent has taken to comply herewith " APPENDIX 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, 8A24 Federal Office Building 819 Taylor Street, Fort Worth, Texas 76102 (Tel. No 334-2934).